Trow v Police - [2021] NZHC 2828

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

I TE KŌTI MATUA O AOTEAROA NGĀMOTU ROHE

CRI-2021-443-038/39/40

[2021] NZHC 2828

BETWEEN
REI WENIREI TROW

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: On the papers

Judgment:

21 October 2021

JUDGMENT OF GRICE J

(conviction appeal)

Overview

[1] On 2 September 2021, this Court allowed Mr Trow’s appeals on historic convictions dating from 2008 to 2016 based on miscarriages of justice. At the times of the convictions it was highly likely that the appellant was unfit to stand trial.1 Since then, further convictions from 2008 to 2010, relating to possession of cannabis,2 driving with excess blood alcohol,3 and careless driving,4 have come to light. Mr Trow now seeks to appeal those convictions on the same basis.

1      Trow v Police [2021] NZHC 2585 [“Conviction Appeal (No 1)”].
2      Convicted on 12 November 2008 for possession of cannabis under s 7(1)(a) and 2(b) of the Misuse of Drugs Act 1975, s 7(1)(a) and 2(b): maximum penalty of three months’ imprisonment or a $500 fine.
3      Convicted on 14 October 2010 s 56(2) and (3): maximum penalty of three months’ imprisonment and/or a fine not exceeding $4,500 alongside a six-month (or more) disqualification from holding or obtaining a licence.
4      Convicted on 18 October 2010 for careless use of a motor vehicle under s 37 of the Land Transport Act 1998 [“LTA”]: a maximum penalty of $3,000 and, at the Court’s discretion, disqualification from holding or obtaining a licence for a duration as the Court sees fit.

TROW v NEW ZEALAND POLICE [2021] NZHC 2828 [21 October 2021]

[2] The respondent takes a neutral position, as it did in relation to the 2 September appeal. The respondent provided information relating to fitness to obtain a driver’s license.

Conviction appeals (No 1)

[3] Between 2008 and 2016 Mr Trow was convicted on a variety of charges: obscene language, shoplifting, breach of a local liquor ban, breach of community work, and male assaults female.

[4] In 2003, psychological reports were prepared for Mr Trow in relation to other charges. Those reports concluded that Mr Trow had a mild to moderate intellectual disability and had an IQ level which put him in the very low range of functioning.

[5] For the purposes of the 2 September appeal, this Court was provided with a further report by Ms Visser, a clinical neuropsychologist. The report concluded that it was “highly unlikely that Mr Trow would have improved so considerably since 2016 that he no longer fulfilled the criteria of intellectual disability as per the ID (CCR) Act 2003”.5 A strong inference could be drawn that Mr Trow, at the time the historic convictions were entered, suffered from a mental impairment. It was highly likely that he was unfit to stand trial, and there had been a miscarriage of justice.

[6]For these reasons, this Court allowed the conviction appeals.6

Present conviction appeals

[7] The appellant now seeks leave to appeal out of time and adduce fresh evidence, being…

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.

Continue reading Trow v Police

Details

AGLC: Trow v Police [2021] NZHC 2828
Case: [2021] NZHC 2828
Decision Date: 21 October 2021

CaseChat Overview and Summary

Rei Wenirei Trow appealed against three convictions relating to possession of cannabis, driving with excess blood alcohol, and careless driving, seeking their setting aside based on a miscarriage of justice. The court was required to determine whether the convictions were entered while Mr Trow was unfit to stand trial due to his intellectual disability, and if so, whether a miscarriage of justice had occurred. The court concluded that it was highly likely that Mr Trow was unfit to stand trial at the time of the convictions, and therefore, a miscarriage of justice had taken place. The court set aside the convictions but did not order any further orders as there was an ongoing order that Mr Trow be cared for as a care recipient. The appeal was allowed.

Orders