Togia v Police

[2012] NZCA 544

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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 COURT OF APPEAL OF NEW ZEALAND

CA394/2012 [2012] NZCA 544

BETWEEN  SOLOSOLO TOGIA Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         15 October 2012

Court:            Arnold, Andrews and Dobson JJ Counsel:       T Ellis and G K Edgeler for Appellant

S B Edwards for Respondent

Judgment:      23 November 2012 at 10.30 am

JUDGMENT OF THE COURT

A        The two questions of law posed by the High Court and set out at [9]

below are both answered “Yes”.

B        Consequently, the appeal is dismissed.

CPublication of the judgment and any part of the proceedings in the news media or on the internet or any other publicly  available database is prohibited until final disposition of the trial.  Publication in a law report

or law digest is permitted, however.

TOGIA V NEW ZEALAND POLICE COA CA394/2012 [23 November 2012]

REASONS OF THE COURT

(Given by Dobson J)

Scope of the appeal

[1]      This pre-trial appeal results from leave granted to the appellant (Mr Togia) by the High Court, to pursue two questions of law.1   Leave has been granted to pursue what amounts to a second appeal under s 144(1) of the Summary Proceedings Act

1957. The issues arise in the context of challenges to the lawfulness and adequacy of steps taken (originally in the District Court) to determine whether Mr Togia is fit to stand trial.

[2]      At the time of the appeal before the High Court in September 2011, Mr Togia was facing six charges: two of assault under s 9 of the Summary Offences Act 1981 and one each of assault under s 196 of the Crimes Act 1961, assault with a weapon, male assaults female and driving with excess blood alcohol.  The incidents alleged to give rise to these charges occurred between May 2008 and December 2009.

[3]      The question of Mr Togia’s fitness to stand trial arose.   Under s 4 of the Criminal Procedure (Mentally Impaired Persons) Act 2003 (CPMIP), a person is unfit to stand trial if he or she is unable, due to mental impairment, to conduct a defence, either personally or through counsel; to plead; to adequately understand the nature, purpose or possible consequences of the proceedings; or to communicate adequately with counsel for the purpose of conducting a defence.  Under s 9, a court may not declare a person unfit to stand trial unless the court is satisfied, to the civil standard, that the evidence is sufficient to establish that the person committed the actus reus of the offence.  Hearings in the District Court on 1 September 2009 and

15 March 2010 resulted in findings under s 9 that Mr Togia had caused the acts or omissions that form the basis of all of the relevant charges except the charge of driving  with  excess  blood  alcohol,  which  was  not  before  the  Court  on  either

occasion.

1      Togia v New Zealand Police [2012] NZHC 1221.

[4]      Then at the conclusion of a hearing on 16 November 2010, Judge Gaskell found that Mr Togia was mentally impaired.   Her Honour adjourned the issue of whether  Mr Togia  was  unfit  to  stand  trial  as  defined  in  s 4  of  CPMIP.    On

13 December 2010, Judge Gaskell concluded that there was no evidential basis on which  the  Court  could  properly  conclude  that,  due  to  his  mental  impairment, Mr Togia was unfit to stand trial.2

[5]      By that time, the excess blood alcohol charge had “caught up”, in the sense that the Court treated it as also subject to a s 9 finding about Mr Togia’s involvement in the actus reus.

[6]      On behalf of Mr Togia, Mr Ellis appealed from Judge Gaskell’s decision on a number of grounds.  Those included that the District Court had lacked the power to order the preparation of a report under s 38 of CPMIP as Mr Togia, who was on bail at the relevant time, was not “in custody”, which is a necessary pre-requisite under s 38(1) of CPMIP.   The asserted consequence was that the resulting report was unlawful.

[7]      On the appeal before the High Court, Mr Togia exercised his right to have further evidence called so that Clifford J had available to him both the reports and evidence before Judge Gaskell from a psychiatrist, Mr Trainor, and a psychologist, Ms Lilley, plus the further evidence that he heard from both of them.   Ms Lilley’s report had been ordered under s 38 of CPMIP, and Mr Trainor’s report had been prepared at the request of Mr Togia’s counsel.

[8]      Clifford J  rejected Mr Ellis’s argument that the District Court had lacked jurisdiction under s 38 of CPMIP to order a report when Mr Togia was on bail.3   In essence, Clifford J reasoned that when Mr Togia surrendered to his bail for the Court appearance at which a report was directed, he was in the custody of the Court.  As a consequence, the High Court did not accept that there was anything unlawful about the report ordered under s 38 of CPMIP on which the District Court had relied.  On

the substantive point, Clifford J determined that Mr Togia was fit to stand trial and gave the following reasoning:

[38]      I do not think it is necessary to record [the expert] evidence in detail. Suffice to say that both Mr Trainor and Ms Lilley were of the view that Mr Togia was fit to stand trial and was capable of receiving a fair trial, providing appropriate arrangements were made to recognise his intellectual disability.

[39]      Having  read  the  evidence  they  provided  in  their  initial  reports, before Judge Gaskell and at the hearing before me, I am satisfied that that is indeed the case.  Both Mr Trainor and Ms Lilley were of the view that Mr Togia  had  what  was  in  fact  a  surprisingly  good  recall  of  the  events  in question and that, advised by a lawyer and with the benefit of further accommodation  to  recognise  the  fact  of  his  intellectual  impairment,  he would adequately understand and be able to participate in his trial so as to receive a fair trial.  I therefore uphold Judge Gaskell’s decision on that point.

[9]      Mr Ellis  subsequently sought  leave to  appeal  on  questions  of law.    In  a judgment issued on 1 June 2012, Clifford J granted leave to appeal on the following two questions of law:4

(a)       Whether I was correct in determining that Mr Togia was in custody at the time the relevant s 38 reports were ordered?

(b)       Did I discharge the duty of rigorous examination referred to by the Court of Appeal in SR v R at [164] when I determined … that I was satisfied Mr Togia was fit to plead?5

The  scope  of  this  present  appeal  is  accordingly  confined  to  answering  those questions.

[10]     In the period since Clifford J’s October 2011 decision dismissing the first appeal, there have been certain developments in relation to Mr Togia’s situation that may assume relevance.   It appears that in late October or early November 2011, Mr Togia was injured relatively seriously by a kick or blows to the head.  He was hospitalised   for   a   subdural   haematoma   and   apparently   underwent   surgery. Subsequent  to  that  occurring,  Mr Bott,  counsel  acting  for  Mr Togia  on  the substantive  defence  of   the  charges   against   him,   has   initiated   steps   in   the District Court for a further assessment to be undertaken of Mr Togia’s fitness to stand trial.

[11]     Among the materials included with the appellant’s Bundle of Authorities on the appeal were copies of two further reports by clinical psychologists, one by Kirsty Williams dated 18 April 2012 and one by Paul Carlyon dated 13 June 2012. The Crown did not object to those reports being before the Court.   Ms Williams assessed Mr Togia’s knowledge of court processes and his role in them to have remained unchanged despite the head injuries suffered in late 2011 and on an earlier occasion.   She deemed him fit to plead.   Mr Carlyon’s opinion was to the same effect.

[12]     Both the April and June 2012 reports state that they were prepared pursuant to s 38 of CPMIP, and refer to s 38(2)(a) of that Act.6   There is no record before the Court of the terms of any direction by a District Court Judge that led to the reports being prepared.  Mr Ellis did not have instructions on the point.  He was inclined to speculate that Mr Bott would not have requested that further reports be ordered pursuant  to  s 38  when  he  was  aware  of  Mr Ellis’s  challenge  to  the  Court’s

jurisdiction to order reports under s 38 in circumstances where Mr Togia was on bail. However, there is no basis for characterising these latest reports, which Mr Ellis drew to our attention, as being requested by the District Court under s 38 over the protest of counsel on behalf of Mr Togia that the Court’s jurisdiction under that section could not or should not have been invoked.

Scope of the Court’s powers under s 38 CPMIP

[13]     Section 38 of CPMIP provides as follows:

38       Power of court to require assessment report

(1)       When a person is in custody at any stage of a proceeding against the person, whether before or during the hearing or trial, or while awaiting sentence or the determination of an appeal, a court may, on the application of the prosecution or the defence or on its own initiative, order that a health assessor prepare an assessment report on the person for the purpose of assisting the court to determine 1 or more of the following matters:

(a)      whether the person is unfit to stand trial:

6 Set out at [13] below.

(b)      whether the person is insane within the meaning of section

23 of the Crimes Act 1961:

(c)       the type and length of sentence that might be imposed on the person:

(d)       the nature of a requirement that the court may impose on the person as part of, or as a condition of, a sentence or order.

(2)       If a court orders that an assessment report on a person be prepared under subsection (1), the court may—

(a)       make it a condition of a grant of bail that the person go to a place   approved   by  the  court   for  the   purpose   of   the assessment; or

(b)       order that the person be detained in a prison for the purpose of the assessment for any period not exceeding 14 days as the court thinks fit; or

(c)       order that the person be detained in a hospital or secure facility for the purpose of the assessment for any period not exceeding 14 days as the court thinks fit, if—

(i)      a remand to a prison for that purpose would be inappropriate for any reason; and

(ii)      a health assessor has expressed the opinion, in a certificate or in evidence, that it would be desirable if an assessment, or a further assessment, take place in a hospital or in a secure facility.

(3)       No order may be made under subsection (2)(b) or (c) in respect of a person if—

(a)      the person is bailable as of right; or

(b)       the person would have been released on bail but for the need for an assessment report.

(4)       If the court makes an order under subsection (2)(c) for a person’s detention and assessment in a hospital or secure facility, it must record the reasons why it would have been inappropriate to order the detention of the person in a prison for that assessment.

(5)      Subsection (1)—

(a)      has effect despite other enactments; but

(b)       is subject, in the case of a defendant who is under 20 years, to  section  142  of  the  Criminal  Justice Act  1985  and  to section 15 of the Bail Act 2000.

[14]     Mr Ellis’s argument was that a pre-condition of the Court’s power to require an assessment report to be prepared under s 38 is that the person has to be “in custody” at the time when the report is ordered.   Further, that on the natural and ordinary meaning of “custody”, it excludes a person who has been granted bail by the Court.  He argued that custody was the equivalent of detention, and that it was entirely inapt to treat a person surrendering to their bail for the purposes of a call of the charges against them to be treated as detained.  If persons answering to their bail were detained, then arguably an obligation arose under s 23 of the New Zealand Bill of Rights Act 1990 (BORA) to inform the person of the reason for the detention, and that  the  rights  to  consult  and  instruct  a lawyer  and  to  have the validity of the detention determined by way of habeas corpus would also arise.

[15]     Clifford J acknowledged that Mr Ellis had been encouraged to argue for a relevant gap in the Court’s powers under s 38 of CPMIP by observations of this Court in McKay v R.7    In that case, which concerned other issues arising under the process provided for under CPMIP, the Court observed in relation to the process for obtaining health assessors’ reports:8

If the defendant is on bail, he or she will probably usually be willing to undergo assessment as to whether he or she is mentally impaired.   If so willing, no court order is required.  If the defendant is in custody, then the court can order reports from two health assessors under ss 38 and 39 of the Act.  That will normally be the first step.  If the defendant is on bail and will not agree voluntarily to be assessed, then there is a problem.  A court is not entitled to refuse bail just so an assessment can be undertaken (see s 38(3)). What the court should do in these circumstances must await another day; we have not had argument on the point and, in any event, this is likely to be a rare situation.

[16]     In arguing that the powers under s 38 could not be invoked in respect of an accused person on bail, Mr Ellis acknowledged that this limitation on the Court’s power would expose a substantial lacuna.  He proposed that such a lacuna should be filled by the Court invoking a power inherent under BORA, for the purpose of ensuring fair trial.9   He submitted that health assessors’ reports prepared for the same purposes, and covering the same issues, could be ordered by the Court to enable it to

complete a s 14 enquiry as a pre-cursor to a fair trial.  Mr Ellis pointed out that the

7      McKay v R [2009] NZCA 378, [2010] 1 NZLR 441 (CA).

8 At [50].

9      New Zealand Bill of Rights Act 1990, s 25(a).

health assessors’ reports required to be considered by the Court under s 14 of CPMIP do not have to be reports prepared pursuant to orders under s 38.   On Mr Ellis’s argument, as long as the providers were appropriately qualified, their reports could be before the Court by another means.   Invoking a power implicit in the Court’s monitoring of fair trial rights under BORA was proposed as an appropriate and lawful substitute.

[17]     The CPMIP procedures cannot work without the Court having a power to compel  reports  in  respect  of  any  accused  person  who  is  to  be  subject  to  the procedures under that Act, irrespective of the person’s remand status at the time, if the accused person does not consent to an assessment.   Mr Ellis’s proposal for an alternative source of the power to compel a person to be assessed where they are on bail implicitly concedes the need for such a power in relation to all categories of remand status. That was obviously the legislative intention.

[18]     Section 3 of CPMIP specifies that its purpose is to re-state the law formerly set out in Part 7 of the Criminal Justice Act 198510 and to make a number of changes to that law, including changes to:

(a)      provide the courts with appropriate options for the detention, assessment, and care of defendants and offenders with an intellectual disability:

[19]     Consistently  with   that   legislative   intention,   s 38   provides   specifically delineated steps for assessing defendants who are potentially impaired in their ability to respond to charges against them.  It would be antithetical to the clear legislative intention to leave so large a gap in the Court’s powers under the statute as would arise  if  s 38  did  not  apply  to  persons  on  bail.    It  is  also  highly  unlikely  that Parliament would intend to fill such a gap by having the Court imply an undefined power to make determinations as to fitness under s 25(a) of BORA (which power would have to include ancillary powers to, for example, order a health assessor’s

report).

10     That part of the Criminal Justice Act dealt with mentally disordered persons, including the power of the Court to require psychiatric reports.

[20]     The prospect of filling any gap in the breadth of the Court’s powers to require reports  under s 38  by resort  to  BORA is  misconceived.    Such  resort  would  be inappropriate given that CPMIP is intended to provide a comprehensive scheme. The  range  of  outcomes  that  might  ensue  from  the  Court’s  reliance  on  health assessors’ reports  strongly supports  consistency  in  the  approach  to  ordering  the reports and the process for their subsequent evaluation.

[21]     The scope of the Court’s powers under s 38 is therefore to be analysed on the basis that if the pre-condition of the person being “in custody” excludes accused persons who have already been bailed, then there would be an absence of power on the part of the Court to require reports in those cases.   When pressed, Mr Ellis acknowledged that such a gap in the Court’s powers to progress issues under CPMIP in  this  respect  would  be  an  unintended  oversight  by Parliament,  rather than an intentional gap.

[22]     Clifford J dealt with this point as follows:11

Section 38(1) refers to when a person is in custody “at any stage of a proceeding against that  person,  whether before or during the hearing or trial”.  In my view, when a person on bail appears in Court, no doubt as a condition of their bail, they are at that point in time under the supervision of the Court and are in custody for the purpose of s 38(1).   In that sense, Mr Togia was in my view “in custody” [at] the time that Judge Johnston made the relevant order, as he had been on earlier occasions when similar orders were made.  I note that the Court of Appeal, as it acknowledged, did not have the benefit of argument on this point.  The Court did note that if a defendant on bail would not agree to be voluntarily assessed, then there was a  problem.    The  Court  of Appeal  may  not  have  taken  full  account  of s 38(2)(a) of the CPMIP, allowing the court to make it a condition of a grant of bail, and in my view therefore also of a continuation of bail, that a person go to an approved place for the purposes of an assessment.

[23]     Mr Ellis’s criticism is that it is a forced or artificial notion of “in custody” to extend that concept to the circumstances of an accused person who surrenders to his or her bail, in accordance with the terms of a bail bond, for the purposes of a Court appearance.  Mr Ellis asked rhetorically whether, if surrendering to bail at 10 am by appearing in the body of the Court places an accused person “in custody”, then how does that accused person lawfully leave the Court during the day for adjournments and lunch?   In addition, when someone is bailed, the Bail Act 2000 includes a

limited power for a defendant who has been granted bail to be detained in the custody of the Court for a period of up to two hours for the purpose of preparing a bail bond.12    He argued that the existence of that provision counts against persons who are compelled to attend Court to answer their bail being otherwise detained, or in custody.

[24]     Ms Edwards argued  for the Crown that it was  not forced or artificial  to interpret “in custody” in s 38(1) of CPMIP as extending to a person who is in the custody of the Court for the purposes of a hearing, and is either about to be admitted or re-admitted to bail at the conclusion of that hearing.

[25]     Certainly, s 42 of CPMIP contemplates that a person who is subject to the procedures under that Act may be transferred from penal or hospital detention to the Court and would then be in the custody of the Court.   Similarly, s 38(7) of the Corrections   Act   2004,   dealing   with   persons   in   the   legal   custody   of   the Chief Executive of the Department of Corrections, provides that their status as such is not affected by the person’s presence in a courtroom “… (whether or not, for the purposes of any other enactment, the person is also in the custody of the court before, during or after that period)”.   Ms Edwards also argued that the terms of s 32(3) of the Bail Act, which Mr Ellis cited, were in fact supportive of the concept that a person will be in the custody of the Court when required to remain there until the paperwork recording the terms of a grant of bail can be prepared and signed.

[26]     Those other statutory references are consistent with a person required to be at Court to answer bail being in a form of custody of the Court, irrespective of whether they are constrained to a particular part of a courtroom or indeed cells attached to the Court.

[27]     The remaining terms of s 38 of CPMIP are also consistent with that.  If the Court makes an order under s 38 when a person first appears, then the person has been delivered into the custody of the Court as a result of compulsion by the Police for the person to attend.   The person is then in the custody of the Court until the Court decides to grant bail.  If a report is ordered on a subsequent appearance when

the person has previously been bailed and has answered to it, then the person is in the same sense in the custody of the Court at the time the Court is dealing with the requirement  for  a  report.    If  issues  arise  about  arrangements  for  a  report,  then s 38(2)(a) empowers the Court to make it a condition of granting bail that the person go to a particular place for the purpose of the assessment.  In this regard, we adopt the observation of Clifford J that the reference to a grant of bail must extend to ordering a continuation of bail.

[28]     Ms Edwards argued that the efficacy of interpreting s 38(1) to extend the concept of “in custody” to those on bail was illustrated by the practicalities of the present case.   There is no suggestion that Mr Togia was unwilling to be assessed. Use of s 38 regularised the process by which that occurred for one of the reports. His counsel independently arranged for a second report to be prepared, and both have been relied on by the courts.

[29]     Further,  Mr Ellis  did  not  argue  that  the  Court  had  forced  Mr Togia  to co-operate in the preparation of a report that was wrong.  The conclusions reached in the  report  prepared  pursuant  to  an  order  under  s 38  were  consistent  with  the conclusions recorded in the second report, which had been obtained directly on Mr Togia’s behalf.   Mr Ellis’s submission that the same report could  have been obtained by the Court invoking an inherent power under BORA means that the process used has not affected the content of the report in a respect that is adverse to Mr Togia’s interests.  As Clifford J noted in relation to an earlier challenge mounted by Mr Ellis to the efficacy of the procedures provided for in CPMIP, Mr Togia’s

focus is on getting an answer.13

[30]     The limitation in s 38(3) on the Court’s powers to order that a person be detained in a prison, hospital or in a secure facility under s 38(2)(b) or (c) if the person would otherwise be bailed does not apply in the same way to constrain the Court’s power to impose relevant conditions of bail under s 38(2)(a).  For example, the Court may still make it a condition of bail that the person go to a place approved

by the Court for the purpose of the assessment under s 38(2)(a), even if that person is

13     The HC appeal at [41], [42].   The same concern was raised by the accused in R v SR HC Wellington CRI-2009-085-8992, 14 April 2011 at [6].

bailable as of right.  Those constraints on the Court’s power can only be read to give them the scope obviously intended for them if the concept of “in custody” in s 38(1) extends to the status of a person who is either being granted bail, or about to be re- bailed.

[31]     It follows that for the above reasons on the analysis of s 38, and for the reasons given by Clifford J in the passage of his judgment cited in [22] above, we do not agree with the suggestion in McKay14 that there may be a lack of jurisdiction to order reports under s 38 of CPMIP in respect of persons on bail.

[32]     Accordingly, we concur with the interpretation relied on by Clifford J and

answer the first of the questions of law “yes”.

Sufficiently rigorous analysis?

[33]     Clifford J’s reasoning in support of his finding that Mr Togia was fit to stand trial  has  been  cited  at  [8]  above.    Mr Ellis’s  criticism  of  the  adequacy  of  that reasoning did not cite any specific deficiencies.  Nor did he draw attention to any evidence on Mr Togia’s mental state that might have justified a contrary conclusion.

[34]     Mr Ellis   did   place   emphasis   on   the   assumptions   made   both   in   the District Court and the High Court that Mr Togia could obtain a fair trial, provided that “appropriate accommodations” were made for him during the course of trial. Mr Ellis  criticised  the  lack  of  specificity  as  to  the  accommodations  that  were contemplated, and also the lack of initiatives taken by the District Court to ensure that they would be in place.

[35]     The question of law posed is whether the Judge had discharged the duty of “rigorous  examination” referred  to  by this  Court  in  SR  v R when  he made his determination  that  Mr Togia was  fit  to  plead.   That  earlier decision  set  out  the

standard of rigorous examination in the following terms:15

14 As cited at [15] above.

15     SR v R, above n 4, at [164]–[165] (citations omitted).

We are conscious of the observations made by the English Court of Appeal in Walls that it is the duty of the court, save in clear cases, to rigorously examine the expert and other evidence adduced against the relevant criteria relating to the issue of fitness to stand trial.  That obligation applies to the judge at first instance and to an appellate court hearing an appeal under ss 16 and 17 of the CPMIP.

We are satisfied that the standard of proof on appeal is the same as that applicable at first instance, namely, on the balance of probabilities.

[36]     In this case, the mental fitness of Mr Togia to stand trial had been analysed very thoroughly.  Two experts, one appointed on behalf of Mr Togia, had provided written reports to the District Court and were cross-examined there.  They agreed he was fit to stand trial.

[37]   Both of those experts provided additional evidence to the High Court, supplementing their reports provided originally to the District Court, and their evidence given viva voce in the District Court.  It appears that Mr Ellis’s questioning of the experts in the High Court by reference to a list of some 21 considerations that

are  itemised  in  a  leading  text16   pursued  a  different  or  additional  tack  to  that

previously used.  There can accordingly be no suggestion that the extent of evidence available  to  the  Judge  involved  anything  less  than  a  rigorous  examination  of evidence on Mr Togia’s mental fitness to stand trial.

[38]     Any complaint therefore becomes one of the adequacy of the Judge’s record of his review of all the evidence and the conclusions he drew from it.  Measurement of adequacy of that task will always be highly case-specific.   For instance, a difference of view among experts would generally lead to a requirement for greater detail in the Judge’s analysis of competing views and reasons for preferring one over others.   There is nothing of that sort in this case.  All the evidence supported the conclusion that Mr Togia was fit to stand trial.  In such circumstances it is legitimate for the Judge to acknowledge that he accepts the evidence without lengthening the judgment by any extensive recitation of the consistent views.

[39]     The  generalised  criticism  that  the  reasons  do  not  reflect  an  adequately rigorous examination of the evidence cannot therefore be sustained.

16     Warren Brookbanks and Dr Alexander Simpson (eds) Psychiatry and the Law (LexisNexis, Wellington, 2007) at [7.33].

[40]     Section 4 of CPMIP includes a definition of “unfit to stand trial”, the second

component of which is as follows:

(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.

[41]     It may be preferable for a Judge conducting an assessment of a defendant who has  a mental  impairment  to  consider his  or her  capacity to  participate by reference to each of these three aspects and record brief reasons for the Judge’s views on each of them.  That is, however, somewhat of a counsel of perfection.  The point was not taken by Mr Ellis and it could not warrant answering the second question of law in the negative.

[42]     If we did have any measure of concern about the adequacy of reasoning, then we would nonetheless have been reluctant to exercise the discretion to direct that the issue be remitted to the Judge for further consideration.  Mr Togia’s mental state may have changed since the hearing in the High Court, and those acting for him in the substantive defence of the charges he faces have initiated a further procedure in the District Court to consider his fitness to stand trial afresh.  We note that both the new reports appear to confirm Mr Togia’s fitness to stand trial.  In any event, it would be counter-productive to require any reconsideration of the historical position, when the substantive outcome of the appeal was so clearly justified, and when the larger imperative is to address the consequences of any change in circumstances.  As we

noted above,17 Mr Togia’s focus is on getting an answer.

[43]     Accordingly, we answer the second question of law in the appeal “yes”.

17 At [29].

Other issues

[44]     Other arguments Mr Ellis raised at the hearing went substantially beyond points that could be relevant to the questions of law on which leave was granted.  He cited certain protocols or proposals from overseas jurisdictions in relation to procedures to be adopted by a “mentally disabled defendant friendly court” in cases involving such persons, to ensure their rights to fair trial.  He was also critical of the District Court for having recognised the need for accommodations in relation to hearings involving Mr Togia, and then on subsequent court appearances overlooking the need to make relevant provisions for him.  Mr Ellis persisted in that criticism as a responsibility on the Court, even if the need for, and nature of, such accommodations were  not  addressed  by  counsel  representing  Mr Togia.    It  is  not  appropriate  to embark in this judgment on an analysis of the reasons why such propositions are unrealistic.

[45]     Mr Ellis  also  criticised successive failures  by the Court  to  pick up on a suggested requirement for Mr Togia to have a neuro-psychological analysis and a brain scan.  He characterised that as a requirement outstanding for a number of years, and submitted that the courts had breached obligations owed to Mr Togia when dealing with steps under CPMIP in not appreciating the reasonable need for such steps and ordering that they be taken.

[46]     Mr Ellis went so far as to observe that if reports of the type he considered appropriate and necessary had been ordered, then the present appeal would have been unnecessary.   Again, this judgment is not the place in which undertake an analysis of the current status of the need for such reports, or the justification for omitting to ask for them.

Outcome

[47]     The Court has answered “yes” to both questions of law on which leave was granted.  The effect of those answers is to uphold the approach adopted by the High Court. The appeal is therefore dismissed.

[48]     Publication of the judgment or any part of the proceedings in the news media or on the internet or other publicly available database is prohibited until final disposition of the trial.   Publication in a law report or law digest is permitted, however.

Solicitors:

Crown Solicitor, Wellington for Respondent