The Queen v Dalley

[2009] NZCA 419

IN THE COURT OF APPEAL OF NEW ZEALAND

CA334/2009
[2009] NZCA 419

THE QUEEN

v

ALFRED HARRY DALLEY

Hearing:9 September 2009

Court:Chambers, Rodney Hansen and Fogarty JJ

Counsel:D R James for Appellant

B D Tantrum for Crown

Judgment:18 September 2009 at 10 am

JUDGMENT OF THE COURT

A        The appeal is allowed. 

B        The convictions are quashed. 

C        The matter is remitted to the District Court for it to assess whether the appellant is fit to stand trial in accordance with Subpart 1 of Part 2 of the Criminal Procedure (Mentally Impaired Persons) Act 2003. 

REASONS OF THE COURT

(Given by Chambers J)

Fitness to stand trial

[1]       On 6 October last year, Alfred Dalley, the appellant, was charged with aggravated burglary and wounding with intent to cause grievous bodily harm.  Following his appearance in court, he was remanded in custody.  The Health Unit staff at Ngawha Prison held concerns for Mr Dalley’s mental health.  They referred him to the Regional Forensic Psychiatry Services Unit of the Waitemata District Health Board (“RFPS”). 

[2]       Richard Firth, of that unit, presented a report to the court on 9 October.  He recorded that Mr Dalley was “known to South Auckland Mental Health Services” and was currently under their community care.  He was “known to suffer from Bipolar Affect Disorder”.  Mr Firth expressed the view that, due to the “current elevation of [Mr Dalley’s] mood”, he might not be able to give adequate instruction to counsel and his ability to follow court process might be impeded.  He expressed the opinion that Mr Dalley fulfilled “the criteria for committal under the Mental Health Act”.  He recommended the court call for a report under s 38of the Criminal Procedure (Mentally Impaired Persons) Act 2003 (“the 2003 Act”).  That report should look at “the issue of fitness to stand trial and mental illness”. 

[3]       On 14 October Mr Dalley was brought before the District Court again.  Judge Hubble presided.  He again remanded Mr Dalley in custody and ordered, as recommended, a s 38 report. 

[4]       A report dated 23 October was prepared by Dr James Gardiner, a Senior Registrar with RFPS.  Dr Gardiner expressed the view that Mr Dalley was currently unfit to stand trial. 

[5]       Mr Dalley came before the court again on 4 November.  Judge de Ridder remanded Mr Dalley in custody again and ordered a further report as to fitness to stand trial.  Dr Staffan Heed, a psychiatrist, then prepared a report dated 12 November.  Dr Heed was of the opinion that Mr Dalley was now fit to stand trial. 

[6]       That report appears to have been regarded as definitive.  No fitness hearing ever took place.  Instead, on 19 November, Mr Dalley was remanded in custody pending a preliminary hearing on 17 February 2009.  On that date, Mr Dalley entered pleas of guilty on both charges before two Justices of the Peace.  Judge Duncan Harvey subsequently sentenced Mr Dalley on 3 June.  He sentenced him to five years nine months’ imprisonment.  From that sentence Mr Dalley appealed.  The essence of that sentence appeal, as presented by Mr Dalley’s counsel, Mr James, was that the sentence was much too high given Mr Dalley’s mental problems. 

Issues on the appeal

[7]       As a result of matters raised by the bench, the appeal ended up taking an unusual course.  This was an appeal against sentence: Mr James was seeking for Mr Dalley a much shorter prison sentence.  Our concern was somewhat different, however.  Had the correct procedure been followed under the 2003 Act before the guilty pleas were accepted?  If not, did we have jurisdiction to do anything about that, given this was simply an appeal against sentence? 

[8]       Only if we were satisfied that the guilty pleas were properly entered or that we had no jurisdiction to do anything about it should we go on to consider the appeal against sentence. 

Was the correct procedure followed?

[9]       Subpart 1 of Part 2 of the 2003 Act sets out the procedure to be followed where a question of the defendant’s fitness to stand trial arises.  In R v McKay [2009] NZCA 378, this court discussed what was needed to trigger the Subpart 1 procedure: at [33]-[40]. Four possible tests were discussed. In the end, this court opted for the least demanding of them. This court said the procedure would be triggered “if the accused, his or her counsel, or the Crown raises a question as to the accused’s fitness to stand trial”. In the normal course of events, whenever there is an application or request, the statutory process should thereafter be followed. The court added that there might be “rare cases where the procedure should be triggered even in the absence of an application by counsel”. The court gave as an example the situation where the judge considered the accused’s conduct either during the course of the alleged offending or during the court proceeding itself as so bizarre as to raise a concern as to the accused’s fitness to stand trial. This court also noted that sometimes “the process may need to be initiated even over the wishes of the accused if the judge considers there is real doubt as to the accused’s fitness to stand trial”.

[10]     In this case, it was the Health Unit at Ngawha Prison who first raised concerns about Mr Dalley’s mental health.  They obtained a report from RFPS.  That report raised very real issues as to Mr Dalley’s fitness to stand trial and as to his mental state. 

[11]     We are not sure exactly what happened when Mr Dalley appeared in the District Court on 14 October last year.  Obviously, everyone shared a concern as to whether he was fit to stand trial, as the judge called for a s 38 report.  Unfortunately, no one seems to have turned their minds to what Subpart 1 then required.  It is common ground that the Subpart 1 procedure was not carried out, principally because at no stage was there a judicial finding that Mr Dalley was or was not fit to stand trial. 

[12]     Mr James submitted that, although no one turned their minds to the Subpart 1 procedure, the steps that were taken could be treated as complying with the statutory procedure, “albeit in a less than satisfactory form”.  He referred to what had happened in McKay, where, although the procedure was not carried out to the letter, this court considered it was sufficiently complied with that no miscarriage of justice was caused: at [63].

[13]     That line of reasoning is not available in this case.  In McKay, the trial judge considered reports from three psychiatrists.  They pronounced themselves satisfied that Mr McKay was fit to stand trial.  Judge Joyce QC himself considered the evidence and ruled Mr McKay was fit to stand trial.  That is to be contrasted with the position here.  The first psychiatrist’s report concluded Mr Dalley was not fit to stand trial.  A subsequent psychiatrist’s report concluded he was now fit to stand trial.  Neither report was at any time the subject of proper analysis and decision by a District Court judge.  What ultimately happened is that Mr Dalley decided he wanted to plead guilty and so instructed his counsel.  Mr James carried out those instructions. 

[14]     That is not a course sanctioned by the 2003 Act.  Once the Subpart 1 procedure is triggered (as it was or should have been here), the procedure must be followed and must ultimately involve judicial findings on one or more matters:

(a)As to whether the court is satisfied, on the balance of probabilities, that the evidence against the defendant is sufficient to establish that the defendant caused the act or omission that forms the basis of the offence with which the defendant is charged: s 9;

(b)As to whether, in light of evidence from at least two health assessors, the court is satisfied that the defendant is mentally impaired: s 14(1) and (2); and

(c)As to whether or not the court finds the defendant is unfit to stand trial: s 14(2). 

[15]     It is not for the defendant himself or herself to determine fitness to stand trial, for obvious reasons.  Nor is it for the defendant’s counsel to make that assessment.  Counsel may after all be conflicted: the client may insist he is fit to stand trial because he wants to remain outside the clutches of the mental health system.  And finally it is not for a psychiatrist or two psychiatrists to determine fitness to stand trial: a judicial determination is required, based on psychiatric evidence and any cross‑examination thereon.

[16]     In these circumstances, the District Court was not entitled to receive Mr Dalley’s pleas until a judge of that court (not a Justice of the Peace) had satisfied himself or herself as to Mr Dalley’s fitness to stand trial.  In these circumstances, provided we have jurisdiction to do so, the guilty pleas and the convictions based on them should be set aside and the Subpart 1 procedure properly carried out. 

Do we have any jurisdiction to act? 

[17]     As we have said, Mr Dalley sought to appeal only against his sentence.  Mr Dalley, who heard his appeal by videolink, listened to the exchanges between bench and bar on the matters referred to in the previous section of this opinion.  After those exchanges, we adjourned in order to give Mr James the opportunity to confer in private with Mr Dalley as to his instructions in light of what had passed.  In particular, of course, we wanted to know whether Mr Dalley wished to apply for an extension of time for appealing against his convictions.  Mr James, however, received no instructions to that effect.  Rather, his instructions remained to seek a greatly reduced sentence.  Somewhat ironically the sole grounds advanced for that reduction were Mr Dalley’s mental state at the time of the offending and what was now said to be his improved mental state which meant, Mr James submitted, that “the public [was no longer] in continuing need of protection from Mr Dalley”.  It is those very mental health issues, however, that have caused our concern as to whether he was fit to plead in the first place. 

[18]     In the absence of an appeal against conviction, what is our jurisdiction?  The answer, we think, is provided by this court’s decision in R v Fonotia [2007] 3 NZLR 338. In that case, Ms Fonotia pleaded guilty to five counts on an amended indictment. She was sentenced to four and a half years’ imprisonment. The Solicitor-General sought leave to appeal against that sentence on the basis that it was “manifestly inadequate and wrong in principle”: at [9]. Ms Fonotia herself did not appeal.

[19] In the course of the Solicitor-General’s appeal, the bench raised the question whether two of the counts charged offences known to law. This court concluded that the counts in question were nullities, “in the sense that they did not disclose a criminal offence”: at [26]. What to do in the absence of an appeal against conviction? This court answered that question as follows:

[29]     On an appeal against sentence, our express powers are set forth in s 385(3) of the Crimes Act 1961.  Under that subsection, if we think a different sentence should have been passed, we can quash the sentence passed and pass such other sentence warranted in law (whether more or less severe) in substitution therefor as we think ought to have been passed.  It is obvious that subsection does not expressly confer a power to quash a conviction.  But we must have inherent power to quash convictions which are nullities (see R v Newland [1988] QB 402 at p 408; R v Nakhla (No 2) [1974] 1 NZLR 453 (CA); and R v Smith [2003] 3 NZLR 617 at paras [28] – [39]). We obviously cannot sanction a sentence based in part on presumed (but in truth non-existent) offending. In order to determine the appropriate sentence for the admitted actual offending, we must remove from the equation the “offending” covered by counts 4 and 5. The convictions on those counts must be quashed so that we can then determine whether the sentence was appropriate.

[30]     Another course would be to adjourn this appeal in order to give time to Ms Fonotia to appeal (out of time) against her convictions on counts 4 and 5.  That appeal could then be heard at the same time as this adjourned Solicitor-General appeal.  Obviously Ms Fonotia’s appeal would have to be allowed; the Solicitor-General’s appeal would then proceed on the basis of the remaining offending under counts 1 – 3.

[31]     We see no reason why that course should have to be taken.  We are satisfied we have inherent power to achieve that same result under the present appeal.  It is, after all, a fundamental proposition that an accused should not suffer a penalty in respect of a non-existent crime.

[32]     We add, by way of completeness, that Ms Fonotia’s guilty pleas present no problem.  It is well established that a plea of guilty will not prevent the overturning of a conviction if “on the admitted facts, the accused could not in law have been convicted of the offence charged” (R v Le Page [2005] 2 NZLR 845 at para [18]. See too R v Dar [2007] NZCA 140 at para [22]).

[20]     So, in the present case, we cannot sanction an outcome which was caused by a complete disregard of the appropriate statutory procedure.  Mr Dalley’s right to a judicial determination of his fitness to stand trial was, through inadvertence, not recognised. 

[21]     The convictions were, in the circumstances, entered in error.  Their entry has resulted in a miscarriage of justice, as it is fundamental that a defendant should not be permitted to plead until any cloud over his or her fitness to stand trial has been resolved one way or the other.  It is also possible that the pleas, being tainted, resulted in convictions which were nullities: see Eastman v R (2000) 203 CLR 1 at [62] and see also the Crimes Act, s 385(1)(d).

Result

[22]     The pleas of guilty are set aside.  We quash the convictions based on them.  We remit the matter to the District Court for it to assess whether the appellant is fit to stand trial in accordance with the Subpart 1 procedure.  If, ultimately, after going through the statutory hoops Mr Dalley is found by a District Court judge to be fit to stand trial, then Mr Dalley, if so minded, can re-enter his guilty pleas.  In that event, he will then have to be re-sentenced. 

Solicitors:
Crown Law Office, Wellington
Palmer Macauley, Kerikeri, for Appellant