Togia v New Zealand Police

The case of Togia v New Zealand Police involved an appeal by Mr Togia against the decision of the High Court, which dismissed his appeal against a ruling by the District Court that he was fit to stand trial. Mr Togia faces charges including assault and driving with excess blood alcohol. The Court of Appeal had previously considered two questions on appeal: whether Mr Togia was in custody at the time a report under s 38(1) of the Criminal Procedure (Mentally Impaired Persons) Act 2003 (CPMIP Act) was ordered, and whether the High Court judge had rigorously examined the evidence to determine Mr Togia's fitness to stand trial. The Supreme Court was asked to grant leave to appeal on these questions.

The Court of Appeal held that Mr Togia was in custody for the purposes of s 38(1) of the CPMIP Act when the report was ordered, even though he was on bail. The Court of Appeal rejected the suggestion in McKay v R that there may be a lack of jurisdiction to order s 38 reports in respect of persons on bail, and approved the reasoning of Clifford J that a person on bail is under the supervision of the court and thus in custody when the report is ordered. The Court of Appeal also concluded that the High Court judge had rigorously examined the evidence, and that the consistent evidence of the experts was sufficient for the judge to conclude that Mr Togia was fit to stand trial.

The Supreme Court held that the Court of Appeal's decision on the question of whether Mr Togia was in custody at the time the report was ordered was clearly correct. The Court also held that the Court of Appeal's decision on the question of whether the High Court judge had rigorously examined the evidence was in any event clearly correct. The Supreme Court therefore dismissed the application for leave to appeal.