Togia v New Zealand Police
[2013] NZSC 4
•26 February 2013
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ORDER PROHIBITING PUBLICATION OF JUDGMENT AND ANY PART OF THE PROCEEDINGS IN NEWS MEDIA OR ON THE INTERNET OR OTHER PUBLICLY AVAILABLE DATABASE UNTIL FINAL DISPOSITION OF TRIAL. PUBLICATION IN LAW REPORT OR LAW DIGEST PERMITTED.
IN THE SUPREME COURT OF NEW ZEALAND
SC 99/2012 [2013] NZSC 4
SOLO SOLO TOGIA
v
THE NEW ZEALAND POLICE
Court: McGrath, William Young and Glazebrook JJ Counsel: T Ellis for Applicant
S B Edwards for Police
Judgment: 26 February 2013
JUDGMENT OF THE COURT
The application for leave to appeal is dismissed.
REASONS
[1] Mr Togia faces a number of charges (including assault and driving with excess blood alcohol). The District Court held that Mr Togia was fit to stand trial,
TOGIA v THE NEW ZEALAND POLICE SC 99/2012 [26 February 2013]
provided appropriate accommodations were made.1 His appeal to the High Court against that decision was dismissed by Clifford J on 1 June 2011.2
[2] The High Court granted leave to appeal to the Court of Appeal on two questions:3
(a) was Clifford J correct in finding that Mr Togia had been in custody at the time that a report under s 38(1) of the Criminal Procedure (Mentally Impaired Persons) Act 2003 (CPMIP Act) was ordered, and
(b)had Clifford J discharged the duty of rigorous examination referred to in SR v R [2011] 3 NZLR 638 (CA) at [164] when he determined that Mr Togia was fit to plead.
[3] It was held by the Court of Appeal4 that Mr Togia was “in custody” at the time the report was ordered, even though he was on bail. The Court of Appeal approved the reasoning of Clifford J, who had held that, when a person on bail appears in court, they are under the supervision of the court and thus in custody for the purpose of s 38(1) when the report is ordered.
[4] The Court of Appeal said that it did not agree with the suggestion in McKay v R5 that there may be a lack of jurisdiction to order s 38 reports in respect of persons on bail. It noted Clifford J’s comment that the Court in that case had not taken full account of s 38(2)(a) of the CPMIP Act, which allows the Court to make it a condition of bail that a person go to an approved place for the purposes of an assessment.6
[5] As to the second question, the Court of Appeal concluded that Mr Togia’s fitness to stand trial had been analysed very thoroughly. In the District Court, there
had been two experts (one appointed on behalf of Mr Togia) who provided written
1 Togia v Police HC Wellington, CRI-2010-485-39, 4 October 2011.
2 Togia v Police [2012] NZHC 1221.
3 Togia v Police HC Wellington, CRI-2010-485-39, 1 June 2012, at [6].
4 Togia v Police [2012] NZCA 544.
5 McKay v R [2009] NZCA 378 at [50].
reports and were cross-examined. Both experts provided additional reports to the High Court and were also cross-examined there. Both experts agreed that Mr Togia was not unfit to stand trial.7
[6] The Court of Appeal said that the complaint therefore became the adequacy of the Judge’s review of the evidence. However, the Court said that, as the experts were in agreement, this could not be sustained on the facts. The Judge was entitled to indicate that he accepted the consistent evidence “without lengthening the judgment by any extensive recitation of the consistent views”.8 The Court also noted that a fresh procedure to assess fitness for trial had been instituted and that the two reports for that also opined that Mr Togia is fit to stand trial.9
[7] The issue as to the ability to order a report about a person on bail is of public importance but the Court of Appeal decision on that point was clearly correct. The second point raises no point of principle and the Court of Appeal decision was in any event clearly correct on that point too.
[8] No issue as to a miscarriage of justice arises and the application for leave to appeal is dismissed.
Solicitors:
Crown Law, Wellington
7 At [36]–[37].
8 At [38].
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