Thomas aka Dalzell v Police

[2023] NZHC 358

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

I TE KŌTI MATUA O AOTEAROA NGĀMOTU ROHE

CRI-2022-443-27

[2023] NZHC 358

BETWEEN

BRADLEY JAMES THOMAS AKA
BRADLEY JAMES DALZELL
Appellant

AND

THE NEW ZEALAND POLICE

Respondent

Hearing:

20 September, 28 October 2022 (via VMR)

Further submissions received 12 and 25 October 2022;
7 February 2023

Counsel:

N P Bourke for Appellant

J M M Marinovich 20 September 2022; C E Clarke 28 October 2022

Judgment:

28 February 2023

JUDGMENT (No 2) OF ISAC J

[Appeal against conviction]

[1]                Mr Thomas appeals 35 historical convictions spanning some 17 years between 1994 and 2021.

[2]                In a judgment of 23 December 2022 I quashed Mr Thomas’ 2013 conviction for sexual violation.1 I was satisfied on the basis of expert evidence, together with evidence of the court procedure in 2013, that Mr Thomas was not fit to plead or stand trial at that time and that a miscarriage of justice had occurred. The background of the appeal can be found in my earlier judgment.

1      Thomas v Police [2022] NZHC 3622.

THOMAS v NEW ZEALAND POLICE [2023] NZHC 358 [28 February 2023]

[3]                The weight of the expert  evidence  essentially  tended  to  suggest  that  if  Mr Thomas was not fit to stand trial in 2013, there was a strong likelihood that at no point in his adult life was he ever fit to do so. As a result, I was left with serious concerns about the safety of Mr Thomas’ other 34 convictions. I concluded:2

… there is no dispute that Mr Thomas has suffered from a significant intellectual disability for his entire life. There is also no evidence that his disability had been identified, assessed or addressed in earlier criminal justice processes. That is most likely due to the behaviours Mr Thomas has developed over the years that mask his disability and leave others with the impression that his intellectual abilities are greater than they actually are. In light of all this, together with his tendency to seek support through health and professional bodies by making possibly false or embellished confessions of offending, I have serious concerns about the safety of Mr Thomas’ remaining convictions.

[4]                Despite my concerns, however, I considered it necessary to provide the Crown a further opportunity to address the Court on the remaining convictions because fitness requires a fact-specific assessment and the evidence on appeal was primarily focussed on the events surrounding the 2013 conviction. I adjourned the appeal part-heard to allow the Crown an opportunity to provide further evidence and submissions addressing the following matters:3

(a)whether the convictions in question were the result of guilty pleas or whether they were entered following a trial or defended hearing;

(b)whether there is any evidence that Mr Thomas’ disability was assessed or made known to counsel acting and the Court at the relevant time; and

(c)if the answers to the first two questions are not clear from the available historical records, given Mr Thomas’ inclination to plead guilty to charges in circumstances where there is doubt about the motivation and veracity of his admissions, whether there is any sound basis to consider that any of the previous convictions are not liable to be the product of a miscarriage of justice.

[5]                In brief but helpful supplementary  submissions  dated  7  February  2023,  Ms Clarke for the Crown advised that the majority of the police files relating to the appellant’s previous convictions have been destroyed and there is no information in the Police National Intelligence Application of relevance. The only files the police were able to locate (relating to proceedings between April 2017 and July 2021)

2 At [57].

3      At [58] and [61].

disclosed little relevant information to the assessment of fitness.4 On one occasion Mr Bourke raised the issue of a s 38 psychological report but it seems that did not go anywhere.

[6]                In light of all this, Ms Clarke accepted that there are genuine concerns with the safety of Mr Thomas’ remaining convictions and advised that the Crown does not oppose the balance of the appeal. In my view that concession was well made.

[7]                In the absence of any evidence that Mr Thomas’ intellectual disability was identified and appropriately dealt with in relation to any of his previous encounters with the criminal justice system, and for the reasons recorded in my earlier judgment, I am satisfied that the remainder of his convictions are the result of a miscarriage of justice. I quash them accordingly.

Conclusion and result

[8]The appeal is allowed.

[9]The remainder of Mr Thomas’ convictions are quashed.

Isac J

Solicitors:

Bourke Law, New Plymouth C&M Legal, New Plymouth

4      On the contrary, it appears that Mr Thomas promptly entered guilty pleas in relation to each of the charges. That is concerning given the expert evidence was that it would likely require significant time, skill and care to ensure that Mr Thomas, as a result of his intellectual difficulties, was fully informed of all matters relevant to a plea, especially when regard is had to his tendency to provide false or embellished admissions out of a desire to be institutionalised when events in his life became overwhelming.