Trow v Police
[2021] NZHC 2828
•21 October 2021
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 Ms Visser’s report, for the convictions that have now come to light. No opposition is raised to the leave and the fresh evidence was not available earlier. Leave to appeal is granted.
5 Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003.
6 Trow v Police, above n 1.
[8] These appeals are to be determined under s 115 of the Summary Proceedings Act 1957. The standard of this appeal and relevant decisions in relation to fitness to stand trial were set out in the 2 September decision as follows:7
[14] All the charges, except the male assaults female charge, are determined under s 115 of the Summary Proceedings Act 1957 (SPA), and the appeal against the male assaults female charge is determined under s 232 of the Criminal Procedure Act 2011 (CPA).
[15]Section 115 of the SPA states:
Defendant’s general right of appeal to High Court
(1)Except as expressly provided by this Act or by any other enactment, where a District Court determines any information or complaint, and—
(a)Convicts any defendant; or
(b)Makes any order, including—
An order for the payment for costs; or
(ii) An order declining an application for the payment for such costs; or
(iii)An order for the estreat of a bond,—
the person convicted or against whom the order is made may appeal to the High Court.
(2)In the case of a conviction, the appeal may be against the conviction and the sentence passed on the conviction, or against the conviction only, or against the sentence only; and, in the case of an order for the payment of money, the appeal may be against the order and the amount of the sum ordered to be paid, or only against the amount of the sum ordered to be paid.
(2A) A person sentenced undersection 28F(4) of the District Courts Act 1947 to a term of imprisonment or to a fine that does not exceed the maximum term of imprisonment or the maximum fine that may be imposed by a District Court under section 7 may appeal to the High Court against the sentence.
(3)No appeal against conviction shall be brought until the person convicted has been sentenced or otherwise dealt with.
(4)Every appeal under this section, or under any of sections 115A to 115DA, is a general appeal
7 Conviction Appeal (No 1), above n 1, at [14]–[24] (footnotes omitted).
[16] Section 232 of the CPA states the following and defines a miscarriage of justice:
232 First appeal court to determine appeal
(1)A first appeal court must determine a first appeal under this subpart in accordance with this section.
(2)The first appeal court must allow a first appeal under this subpart if satisfied that,—
(a)in the case of a jury trial, having regard to the evidence, the jury’s verdict was unreasonable; or
(b)in the case of a Judge-alone trial, the Judge erred in his or her assessment of the evidence to such an extent that a miscarriage of justice has occurred; or
(c)in any case, a miscarriage of justice has occurred for any reason.
(3)The first appeal court must dismiss a first appeal under this subpart in any other case.
(4)In subsection (2), miscarriage of justice means any error, irregularity, or occurrence in or in relation to or affecting the trial that—
(a)has created a real risk that the outcome of the trial was affected; or
(b)has resulted in an unfair trial or a trial that was a nullity.
(5)In subsection (4), trial includes a proceeding in which the appellant pleaded guilty.
Fitness to stand trial
[17]The Supreme Court in Britz v R stated that:
… What both Courts of Appeal were emphasising was simply the practical problem of reconstructing later an accused's mental state at trial in circumstances where no one qualified had examined the accused at the relevant time and no one involved in the case at that time (lawyers and the judge) had perceived there to be a potential difficulty as to fitness to plead or stand trial. That there is a practical difficulty in “later reconstruction” is undeniable. That is not to say the courts generally impose, or the Court of Appeal in this case imposed, a “high threshold” in these circumstances. The fact an accused has an intellectual disability, as Mr Britz does, does not mean a different test is called for in the post-trial situation. That disability will simply be another factor to be weighed, as it was weighed by the Court of Appeal in this case.
[18] The Court there, of course, was referring to the difficulty of reconstructing the position when considering fitness to stand trial following the trial and in the appeal.
[19] Under the Criminal Procedure (Mentally Impaired Persons) Act 2003, an appellate court is not making a finding of unfitness, under s 7(1):
7 When finding of unfitness to stand trial may be made
(1) A court may make a finding under this subpart that a defendant is unfit to stand trial at any stage after the commencement of the proceedings and until all the evidence is concluded.
[20] In Nonu v R, the Court of Appeal made the following observations in relation to convictions for aggravated robbery, having accepted the appellant had an intellectual impairment and was unlikely to have been able to effectively participate in his trial:
[24] Mr Nonu’s trial would have been a miscarriage if he was unfit to stand trial because it is a fundamental feature of our criminal justice system that only those who pass the threshold of being fit to stand trial are subjected to all that is entailed in responding to criminal charges.
[21] In Paraha v Police, Palmer J commented on the problems of the retrospective assessment of mental fitness by an appellate court. He said:
[23] Retrospective assessments are potentially problematic. As the Supreme Court said in Cumming v R, a court is not empowered to make a formal finding of unfitness to plead or to stand trial on a general appeal. A different statutory regime applies to that. But a court may conclude that an accused has suffered a miscarriage of justice due to mental illness and likely unfitness at the time of trial. The statutory regime relevant to unfitness to plead is a recognition by Parliament that it is not right to put someone on trial when mental disorder would make the trial unfair.
[22] In that case, a window washer kicked a motorist’s vehicle causing a crack in the taillight. Mr Paraha pleaded guilty in June 2015 and was convicted of wilful damage and ordered to pay reparation. In 2016, he faced fresh charges, at that time s 38 reports were produced, both of which concluded the appellant had an intellectual disability and he was found unfit to plead. Mr Paraha was made a special care recipient by the District Court Judge for 12 months. An appeal against the 2015 conviction was filed. Palmer J held there was a strong inference that could be drawn at the time of the conviction that the appellant was unfit to stand trial, and he set aside the conviction. No retrial was ordered.
[23] In Leapai v Police, the appellant appealed his criminal history between December 2001 and November 2010. he charges included nuisance, wilful damage, possession of an offensive weapon and male assaults female. In 2008, Mr Leapai was found unfit to stand trial in relation to dishonesty offending and was released, given that supported services were in place. In 2011 the appellant faced other charges and was again found unfit to plead as a result of an intellectual disability. At the appeal four expert clinicians, who
had previously examined the appellant, concluded he had a longstanding and permanent intellectual disability since he was 18 years of age, and that if he had been assessed before his other convictions between 2001 and 2010, it was “highly likely he would have been found unfit to stand trial”.
[24] From the authorities, counsel’s submissions and the “unique circumstances”, as well as the unanimity of the experts, the Judge set aside the convictions. No further order was made as there was an ongoing order that the appellant be cared for as a care recipient.
[9] These three additional charges were not known to counsel at the filing of the first appeal. The appeals in this case are advanced on the same grounds as the first appeal, being that Mr Trow had been previously found unfit to stand trial due to his intellectual impairment, which, together with the findings in Ms Visser’s report suggests he was unlikely to have been fit to stand trial for the three convictions under appeal. A miscarriage of justice has taken place and the appellant seeks that those convictions be set aside, pursuant to s 121(2)(b) of the Summary Proceedings Act.
[10] The respondent takes a neutral position but notes that fitness to stand trial in relation to Land Transport Act/driving offences warrants further consideration. The respondent says that it can be inferred that the appellant understood the road code, as he holds a full drivers licence, having had to pass the relevant tests, and points to the summary of facts for the breath alcohol conviction in which the appellant said “he thought he would be under the limit”. The respondent also notes that Ms Visser’s report states adaptive function impairments can reduce after a new skill is acquired if given proper support or intervention. Mr Trow obtained and maintained his licence, suggesting that driving is an adaptive function that can be learnt.
[11] The respondent also points to Waka Kotahi | NZ Transport Agency’s guidelines to medical practitioners in relation to fitness to drive, which states:8
There are generally no driving restrictions for individuals who have an intellectual disability if they can pass the requirements to hold a licence, such as pass the appropriate theory test and practical driving tests. However, review of fitness to drive may be required where there are changes in the individual’s medical status that, when combined with their intellectual disability, may impair their ability to drive safely, eg the individual develops a disorder that impairs their motor skills.
8 Medical Aspects of Fitness to Drive: A guide for health practitioners (Waka Kotahi | NZ Transport Agency, July 2014) at [10.6].
Psychological assessment, or assessments of ability to deal with emergency situations requiring accurate judgement, may be necessary where cases of doubt exist.
Individuals who became intellectually disabled after they gain their licence and/or endorsement are dealt with in section 2 ‘Neurological conditions’.
[12] The respondent also notes that if someone is unfit to plead and is therefore not convicted under the Land Transport Act, the Court cannot impose a disqualification from driving, which is contingent on a conviction. The respondent could not locate any reference to disqualification from driving under the Criminal Procedure (Mentally Impaired Persons) Act 2003.
Analysis
[13] These appeals are brought on the basis that the defendant was not fit to plead at the time that he entered pleas. The miscarriage of justice is said to occur for no other reason. Therefore, while the points made by the respondent as to the requisite level of functioning apparently being present when the offences occurred, that is beside the point here. The appeal relates to fitness to plead when the pleas were taken.
[14] The pleas were entered around the same time as those for the convictions the subject of the first appeal. Given the overall findings of Ms Visser’s report and the reports of 2003/4, a strong inference can still be drawn that Mr Trow was unfit to plead and stand trial for the period between 2008 and 2010. This is for much the same reasons as this Court had found in the 2 September decision. It must follow that Mr Trow was unfit to plead to the convictions under appeal. I find that in relation to the additional three convictions, a miscarriage of justice did take place.
Conclusion
[15]Leave to appeal out of time and adduce fresh evidence is granted.
[16] A miscarriage of justice has taken place. I order that those convictions be set aside.
[17]No further orders are made.
Result
[18]Appeal allowed.
Grice J
Solicitors:
Crown Solicitor, Ngāmotu | New Plymouth for Respondent.
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