The Queen v Daniel

[2007] NZCA 15

IN THE COURT OF APPEAL OF NEW ZEALAND

CA42/06
[2007] NZCA 15

THE QUEEN

v

TRAVELLER TEREMATOARA DANIEL

Hearing:14 February 2007

Court:Robertson, Ronald Young and Venning JJ

Counsel:S I Robinson for Appellant

E M Thomas for Crown

Judgment:20 February 2007 at 4 pm

JUDGMENT OF THE COURT

LEAVE TO APPEAL IS GRANTED AND THE APPEAL IS DISMISSED.

____________________________________________________________________

REASONS OF THE COURT

(Given by Robertson J)

Introduction

[1]       Traveller Daniel appeals against his conviction on 22 June 2005 on one charge of kidnapping and one charge of the rape of the same woman.

[2]       The notice of appeal is substantially out of time.  That is not a point which is critical as the sole ground of appeal is that, at the time of his trial, Mr Daniel was unfit to stand trial due to mental impairment.

[3]       It is an unusual case in that the Court is now being asked to look back more than 18 months to determine whether Mr Daniel was under such a disability that he was unable to participate in his trial and that consequently there was a miscarriage of justice.

[4]       The Crown has taken the responsible position that it is a matter for the Court, but submits that the evidence provided by the appellant falls short of establishing the appellant was unfit to be tried because of mental impairment.

[5]       Mr Thomas submitted, and we agree, that for the appellant to succeed he must establish that:

(a)       at the time of his trial he was suffering from mental impairment;

(b)as a result of that mental impairment he was unable to conduct a defence or instruct counsel to do so; and

(c)as a result a miscarriage of justice resulted.

Background

[6]       There is no question that Mr Daniel, for some time prior to this trial, had been afflicted by mental disorder.  He was subject to a compulsory treatment order under the Mental Health (Compulsory Assessment and Treatment) Act 1992 until it lapsed in March 2005 because of his failure to keep medical appointments.  Dr Justin Barry-Walsh, who filed an affidavit in support of the application, confirmed that Mr Daniel has suffered from schizophrenia since at least 1998 and has had extensive and ongoing contact with various agencies of the Regional Forensic Safety At Risk Service.

[7]       In September 2004 he began a regime of injectable anti-psychotic flupenthixol decanoate at a dose of 50mg.  Initially the medication was prescribed at three-weekly intervals, but this was increased to two-weekly in December 2004.  There were problems about his maintaining contact with the Service and his last injection of anti-psychotic medication prior to trial was on 28 March 2005.

[8]       Following his conviction Mr Daniel was remanded in custody.  A psychiatric nurse who saw him on 28 June 2005 had some concerns about his mental health but said that his mental health seemed to be stable.  He was reviewed by a consultant psychiatrist on 4 July 2005.  On 6 July 2006 another psychiatrist concluded that Mr Daniel “continues to suffer from a severe psychotic disturbance which is clearly treatment refractory” and increased the anti-psychotic medication.  Yet another psychiatrist who saw him on 7 July 2005 indicated that there was no evidence of active mental illness, although by then the injections had been recommenced.

The nature of the charges

[9]       The two charges arose out of an incident on a night in June 2004.  Mr Daniel had made contact with the 17 year old complainant through the Hot Gossip Chatline and the pair met up in person at a party being held by a friend of the complainant. 

[10]     In the course of this evening, when the complainant went to the bathroom, she says he followed her, detained her there and forced her to have sexual intercourse.

[11]     Effectively his defence was that she was a willing participant in all that occurred.

The legal framework

[12]     The relevant statutory provision is s 4 of the Criminal Procedure (Mental Impaired Persons) Act 2003 (CPMIPA) which defines “unfit to stand trial” as:

(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.

[13]     Mental impairment is not defined in that Act, nor in the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003 (IDCCRA), although “intellectual disability” is defined in s 7 of IDCCRA as:

7        Meaning of intellectual disability

(1)       A person has an intellectual disability if the person has a permanent impairment that—

(a)       results in significantly sub-average general intelligence; and

(b)results in significant deficits in adaptive functioning, as measured by tests generally used by clinicians, in at least 2 of the skills listed in subsection (4); and

(c)became apparent during the developmental period of the person.

(2)       Wherever practicable, a person's general intelligence must be assessed by applying standard psychometric tests generally used by clinicians.

(3)       For the purposes of subsection (1)(a), an assessment of a person's general intelligence is indicative of significantly sub-average general intelligence if it results in an intelligence quotient that is expressed—

(a)       as 70 or less; and

(b)      with a confidence level of not less than 95%.

(4)       The skills referred to in subsection (1)(b) are—

(a)       communication:
(b)      self-care:
(c)       home living:
(d)      social skills:
(e)       use of community services:
(f)       self-direction:
(g)       health and safety:
(h)      reading, writing, and arithmetic:

(i)       leisure and work.

(5)       For the purposes of subsection (1)(c), the developmental period of a person generally finishes when the person turns 18 years.

(6)       This section is subject to section 8.

[14]     In S v New Zealand Police HC PMN CRI 2005-454-047 8 December 2005, MacKenzie J held that intellectual disability will ordinarily constitute mental impairment, that mental impairment did not necessarily constitute unfitness to plead and that intellectual disability of similar seriousness to that defined in s 7 of the IDCCRA, but which does not fall within the definition, may in certain circumstances constitute a mental impairment.  This evaluation is not challenged by either counsel and we accept it as encapsulating the relevant approach. 

[15]     This Court, in R v Power CA187/96 22 October 1996, noted that fitness to stand trial did not require that an accused had the ability to necessarily act in his best interests. 

[16]     The competing tensions in this matter are appropriately described by Professor Ian Feckelton’s “Assessment of Fitness to Stand Trial” in Fitness to Plead: Under Disability in the 90s Legal Research Foundation, March 1995, page 14, as:

An absolute standard which requires full comprehension of forensic subtleties would result in excessive rates of declaration of unfitness to stand trial.  However, if the threshold is set too low for assessment of fitness to stand trial, the potential exists for false convictions because of the impairment of the accused to participate in the trial process.

Mr Daniel’s state of mind at the time of trial

[17]     The direct evidence about this critical period comes from Mr Nisbet (who was trial counsel).  He has filed an affidavit, to which is attached a brief of evidence taken from Mr Daniel during trial, and file notes from Anne Begg (a forensic nurse) who saw Mr Daniel during the trial.  There is also an affidavit of Liam Morris (a prison officer) who was in attendance.

[18]     From this evidence the following can be extracted:

(a)Mr Daniel was unreliable in keeping appointments with his counsel prior to trial. 

(b)His trial counsel had concerns about Mr Daniel’s ability to understand the process and he sought assurance about it from a forensic nurse on the day before trial.  Ms Begg provided counsel with a copy of a 2002 report.

(c)On the day his trial was due to commence Mr Daniel did not appear at the allocated time and had to be picked up by the police and brought to Court.

(d)The forensic nurse recorded on that day that Mr Daniel was able to instruct counsel.  Thereafter he was remanded in custody. 

(e)The following day a nurse tried to speak with Mr Daniel but he was unwilling to talk.  The nurse recorded that Mr Daniel was less able to dialogue with his counsel and queried his ability to understand or be sure of the Court proceedings.

(f)The nurse noted that Mr Daniel was not on his drugs and so steps were put in place to deal with this.

(g)The Crown case finished on a Friday.  Over the weekend, a brief of evidence for Mr Daniel was taken by his counsel.  It is a six page, comprehensive and coherent document.

(h)Despite the nature and contents of the brief, Mr Nesbit remained concerned as to the ability of Mr Daniel to give evidence coherently and cogently.

(i)Counsel again sought the assistance of Ms Begg on the Monday.  He spoke further to Mr Daniel in the nurse’s presence about the decision which Mr Daniel had to make as to whether he was going to give evidence.

(j)Mr Nesbit accepts that the nurse was content that Mr Daniel was able to make an informed choice. 

(k)Mr Nesbit, because of his apprehension, spoke further to Mr Daniel in the presence of a prison officer.  He eventually concluded that Mr Daniel could make a decision.

(l)The appellant signed a written election not to give evidence and the trial proceeded to its conclusion without any defence evidence. 

(m)Mr Daniel was convicted of two charges.  He was acquitted on a charge of indecent assault.

(n)The prison officer thought Mr Daniel’s mental health was fluctuating during the period of trial but said that he appeared to understand what was occurring and was capable of taking advice.  She was not an expert, but had observed many people in a trial setting.  She conceded she could not be sure as to what his abilities had been during the trial.

Dr Barry-Walsh’s report

[19]     The other factor is the five page report from Dr Barry-Walsh, a forensic psychiatrist, who was instructed to investigate this issue after having been contacted by Mr Daniel about his sentencing.  Mr Nesbit had observed that, in the subsequent communications, the appellant appeared more coherent and communicative and able to express himself persuasively in contrast with his position at the time of the trial.  A new drug regime was assisting Mr Daniel by this time.

[20]     Dr Barry-Walsh reviewed the material available from the relevant time as discussed above, the mental health files held by Regional Forensic Psychiatric Service, spoke on one occasion to Mr Daniel, spoke to Anne Begg (the Court Liaison Nurse) and also to Jim Hollingworth, a psychiatric nurse, at the Porirua Community Mental Health Team.

[21]     Dr Barry-Walsh described an interview which he had with Mr Daniel.  He noted immediately that it was on 12 July 2006, more than 13 months after the date at which the assessment had to be made.  However, he records that Mr Daniel told the doctor that, at the time, he had been having difficulty with his own personal thoughts and that he felt “very unsure with mixed thoughts, scared of the jury because there were hardly any brown people”.  The doctor reported that Mr Daniel recalled having spoken to Mr Nesbit about giving evidence and Mr Daniel remembered that Mr Nesbit “told me if I wanted to go to stand up and have a say but I didn’t feel like talking at the time … I was under pressure by going to court and knowing I was going to jail and couldn’t think of what I wanted to say, got worse when I went to court that day”.

[22]     In reaching his opinion, Dr Barry-Walsh identified the correct legal test, and reviewed Mr Daniel’s general condition of paranoid schizophrenia.  He noted that there had been no active treatment from March to June 2005 and that as his medication washed out slowly there would have been a reducing level of anti-psychotic medication circulating.  The report says Mr Daniel advised that there was a re-start of a history of hallucinations. 

[23]     Dr Barry-Walsh drew attention to the difference of opinion between the two psychiatrists who had seen Mr Daniel within a few days of each other in early July 2005 and commented that their very different assessment was consistent with the difficulties in this area.

[24]     He recorded an appreciation of the evidence available to the Court from Anne Begg, Mr Nesbit and the prison officer.

[25]     Dr Barry-Walsh eventually concluded:

Therefore considerable uncertainty remains about the specifics of Mr Daniel’s mental state over this period particularly with regard to his capacity to engage in court process.  However contemporaneous accounts and assessments indicate a fluctuating mental state and I have indicated Mr Daniel was ill at the time.  Concerns were expressed by both Ms Begg and counsel about his fitness.  Therefore there are grounds to believe that his mental disorder affected his capacity to instruct counsel and follow legal process and that this capacity fluctuated during the trial.

It would seem the most crucial issue is the extent to which Mr Daniel was able to make a valid decision about whether or not he should give evidence and whether counsels decision making in this area was affected by the expressed concerns about the impact of the mental disorder on the quality of the evidence Mr Daniel might give.  I would observe that decision making in this area and the process of giving evidence in a court of law is of a level of complexity greater than most other aspects of legal process (e.g. pleading, or understanding the role of officers of the court) and it is reasonable to suggest that a person may in general be fit to plead but specifically lack capacity in this particular area.  Mr Daniel’s illness produces not only voices (or auditory hallucinations) but more critically causes a disorganisation in his thoughts and a general slowing and diminishment of thinking.  Such features are common in psychotic illnesses which are known to also cause a decline in the level of an individual’s cognitive functioning.  The reports of Ms Begg and counsel are consistent with these pathologies being present in Mr Daniel at the time of trial in a fluctuating manner. Such impairments would diminish Mr Daniel’s capacity to make reasoned decisions around his trial and follow and understand legal process.  However I am unable to be any more specific because of the retrospective nature of my assessment and the lack of more detailed assessment at the time.

Conclusion

[26]     We have given careful consideration to the professional opinion of Dr Barry-Walsh and his review of the material.  In view of the historical data, we are not persuaded that even the guarded conclusion which he draws necessarily flows from the evidence available at the time.

[27]     We need not reach a firm conclusion as to whether Mr Daniel was mentally impaired at the time of the trial.  We are satisfied that, whether he was mentally impaired or not, Mr Daniel was able to conduct a proper defence and instruct counsel.  Accordingly there can be no miscarriage of justice.

[28]     The most compelling evidence as to Mr Daniel’s understanding, appreciation and cognitive skills, is the brief taken from him part way through the trial.  It is coherent and a comprehensive review of what he contended had occurred.

[29]     The counsel involved took careful precautions to seek assurance as to the position of Mr Daniel.  We are not unsympathetic to a man who has a history of mental disorder, but although there is some indication that Mr Daniel was at times less focused than he might have been, there is nothing which suggests that he did not have a proper comprehension and understanding of the nature of the proceeding against him, the allegations which were being made and the alternatives available to him in the conduct of his defence.  He had throughout the benefit of competent and experienced counsel, sensitive to his position, with whom there was proper communication

[30]     Accordingly we are satisfied there is not evidence that, as a result of any disability or affliction from which he was suffering, Mr Daniel was unable to conduct his defence or instruct counsel.

Result

[31]     Leave to appeal is granted and the appeal is dismissed.

Solicitors:
Sladden Cochrane, Wellington, for Appellant
Crown Law Office, Wellington