Togia v Police - [2012] NZCA 544

For a Court ready (fee required) version please follow this link

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Togia v Police and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2012] NZCA 544
Decision Date: 23 November 2012

CaseChat Overview and Summary

In Togia v Police, the Court of Appeal addressed two questions of law related to the fitness of the appellant, Mr Togia, to stand trial. The first question concerned whether the District Court had the jurisdiction to order assessment reports under section 38 of the Criminal Procedure (Mentally Impaired Persons) Act 2003 (CPMIP) when Mr Togia was on bail. The second question related to whether the High Court had rigorously examined the evidence when determining that Mr Togia was fit to stand trial. The appeal was dismissed on both counts. The Court concluded that the term "in custody" in section 38 of CPMIP extends to individuals on bail who appear in court, thereby upholding the District Court's jurisdiction to order assessment reports. Furthermore, the Court found that the High Court had conducted a sufficiently rigorous examination of the evidence, as both experts agreed on Mr Togia's fitness to stand trial, and there was no disagreement among the evidence. The Court also noted that any deficiencies in the reasoning could be addressed in future proceedings, given the potential changes in Mr Togia's mental state.

Orders