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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading The Queen v Dalley

Details

AGLC: The Queen v Dalley [2009] NZCA 419
Case: [2009] NZCA 419
Decision Date: 18 September 2009

CaseChat Overview and Summary

Alfred Harry Dalley, the appellant, was charged with aggravated burglary and wounding with intent to cause grievous bodily harm. Following his appearance in court, concerns were raised about his mental health. The court was required to determine whether the correct procedure under the Criminal Procedure (Mentally Impaired Persons) Act 2003 had been followed before accepting the appellant’s guilty pleas. This involved assessing whether the statutory process for determining fitness to stand trial was correctly implemented. The court needed to decide whether the guilty pleas were properly entered and if it had jurisdiction to address any procedural errors, given that the appeal was originally against the sentence.

The court found that the statutory process for determining fitness to stand trial was not followed. The Health Unit at Ngawha Prison raised concerns about the appellant’s mental health, leading to a report from the Regional Forensic Psychiatry Services Unit. Despite these concerns, the court did not make a judicial determination on the appellant’s fitness to stand trial. The court held that once the Subpart 1 procedure is triggered, it must be followed, involving judicial findings on the defendant’s fitness to stand trial based on evidence from health assessors. The court concluded that the District Court was not entitled to receive the appellant’s pleas until a judge had determined his fitness to stand trial.

The court quashed the convictions and set aside the guilty pleas due to the procedural error. The matter was remitted to the District Court to assess the appellant’s fitness to stand trial in accordance with the statutory procedure. If the appellant is found fit to stand trial, he can re-enter his guilty pleas and be re-sentenced. The court found it had inherent power to quash convictions that were entered in error, ensuring that the appellant does not suffer a penalty for a non-existent crime. The final orders included the quashing of the convictions and the remission of the matter to the District Court for further assessment.

Orders