Trow v Police
[2021] NZHC 2585
•2 September 2021
IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY
I TE KŌTI MATUA O AOTEAROA NGĀMOTU ROHE
CRI-2021-443-005/6/7/8/9/10/11
[2021] NZHC 2585
BETWEEN REI TROW
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 2 September 2021 Appearances:
J Hudson for the Appellant
J Bourke for the Respondent
Judgment:
2 September 2021
JUDGMENT OF GRICE J
(conviction appeal)
Overview
[1] This is a conviction appeal against convictions entered against the appellant between 2008 and 2016. The grounds for the appeal relate to miscarriages of justice on the basis that the appellant was unfit to stand trial at the time. The respondent takes a neutral position on the appeal.1
[2] The relevant convictions were entered between 2008 and 2016, for the following offences:
(a)obscene language;
1 This decision was delivered orally on 2 September 2021. The written version is edited for grammar and flow with the addition of footnote citations for reference, but the substance remains the same.
TROW v NEW ZEALAND POLICE [2021] NZHC 2585 [2 September 2021]
(b)shoplifting (four charges);
(c)breach of a local liquor ban;
(d)breach of community work; and
(e)male assaults female.
Factual background and procedural history
[3] On 8 April 2003, the appellant was charged with aggravated robbery, kidnapping, and wounding with intent to cause grievous bodily harm. Drs Goodwin and Burgess provided forensic reports on the appellant’s mental fitness. The appellant was found unfit to stand trial following a disability hearing in the District Court and was ordered to be detained in hospital as a special treatment patient. This order was appealed, and Mr Trow sought to be dealt with under the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003 (IDCCRA).
[4] An appeal was brought against those convictions and the appeal was allowed. The order for detention as a special patient was quashed.2 The Judge also ordered that the appellant be cared for as a care recipient for two years under the IDCCRA.3
[5] The convictions under appeal in this case took place between 2008 and 2016. No reports or assessments concerning the appellant’s fitness were obtained during that time.
[6] On 13 July 2021, the appellant obtained a report from Ms Visser, a Consultant Clinical and Neuropsychologist, which I detail below. This followed a finding in this Court that the s 38 reports that had earlier been directed at the request of the appellant and the respondent should not have been ordered, as Mr Trow was neither on bail nor in custody. For reasons outlined in the relevant minute of Gwyn J
2 Trow v Police HC Auckland CRI-2004-404-208, 4 April 2005 [“High Court Decision (2005)”] at [14].
3 This was ordered pursuant to s 25(b) of the Criminal Procedure (Mentally Impaired Persons) Act 2003, whereas the original order was akin to the stricter detainment at hospital under s 24(2)(a) of the Act.
there was no jurisdiction to order a s 38 report.4 It was noted that without the relevant reports the Court would be in some difficulty in determining the appeal as, while there had been a s 38 report carried out for the purposes of the earlier offending, there was no updating report in relation to the present charges, which had occurred between five and 12 years later. The Judge identified two questions:5
… First, whether in a case such as this of intellectual disability rather than mental illness, there is any realistic possibility of the person’s condition changing and improving over time; and second, what value there might be in an updated assessment as to Mr Trow’s condition in 2021 when the Court is considering an appeal in relation to the 2008-2016 convictions.
[7] On 5 August 2021, Churchman J granted an application for leave to appeal out of time and to adduce further evidence in support of the appeal.6 The further evidence adduced is the report of Ms Sabine Visser dated 13 July 2021. Ms Visser is a Consultant Clinical and Neuropsychologist in private practice with a part-time position as a Senior Clinical/Neuropsychologist at the Auckland Regional Forensic Psychiatry Service (Mason Clinic). She is a specialist in forensic psychology.
Ms Visser’s assessment
[8] Ms Visser conducted a review of the previous reports which had been obtained in relation to Mr Trow. She noted that mental abilities are tested by both clinical assessment and individualised, standardised intelligence testing. Mental abilities are measured by IQ tests. Essentially, typically, an IQ score of 70 or below represents a significant cognitive deficit. While early and ongoing intervention may improve adaptive skills through childhood and adulthood and in some cases this intervention “may result in significant improvement of intellectual functioning, such that the diagnosis of intellectual disability is no longer appropriate”, the improvement in functioning is generally a result of a stable, generalised new skill acquisition ability and is contingent on the presence of supports and ongoing interventions.
[9] Mr Trow had been assessed in 1997 by a psychologist as having a full-scale IQ estimated at between 80 to 91. A subsequent opinion by Dr Burgess was that this was
4 Trow v Police HC New Plymouth CRI-2021-443,5,6,7,8,9,11 23 April 2021 [“Minute of Gwyn J”] at [20].
5 At [20].
6 Trow v Police [2021] NZHC 2012 at [33].
inconsistent with Mr Trow’s presentation. He found Mr Trow’s functioning was lower than this estimation. He concluded Mr Trow suffered from a mild to moderate intellectual disability.
[10] In May 2003, Dr Goodwin further reassessed Mr Trow and said that, if tested, he was likely to have a score considerably lower than the estimated IQ of 80 to 91. In November 2004, Dr Goodwin reported that Mr Trow was assessed by a psychologist in January 2004 and his full-scale IQ was recorded as being 55 and in the extremely low range of functioning. Dr Goodwin was of the view that Mr Trow did suffer from an intellectual disability. On the basis of the reports of Dr Goodwin and Dr Burgess, the High Court subsequently ordered that Mr Trow be cared for as a care recipient for two years. That order was dated 30 March 2005, but it appears that Mr Trow was not a care recipient and did not receive rehabilitation at that stage.
[11] Ms Visser noted the documents she had reviewed indicated that Mr Trow did not engage in any services over this period. He lived an itinerant lifestyle, as well as having substance abuse problems, during that time. Ms Visser noted there had been difficulty with Mr Trow’s communication with probation officers at the interview and an indication from the officer seemed to suggest that Mr Trow did not understand the legal process.
[12] Ms Visser’s opinion is that the full-scale IQ reported to be 55 was consistent with the Goodwin and Burgess reports. She has no data on adaptive functioning testing in those reports. She noted that Mr Trow’s actual IQ was between 52 at the lowest and 60 at the highest. This means that if Mr Trow was tested 10 times; his actual number (FSIQ) could be anything from 52 to 60. She noted that some variation in scores is accepted due to environmental factors. Ms Visser noted that adaptive functioning can change this IQ but that required the individual to have been exposed to an environment that was stable, positive, and focused on teaching adaptive functioning. She noted most of the literature indicated that the diagnosis is a lifelong condition and it cannot be changed. The adaptive changes are not in cognitive functioning but relate to how a person uses their cognitive functioning to learn new skills. In this case, while there is no data on Mr Trow learning new skills or practising these independently, on the information available to Ms Visser it seems that he has
never received rehabilitation or lived in a stable environment that offered him the opportunity to acquire adaptive skills. To the contrary it appears that he has lived an itinerant lifestyle with little support and substance abuse problems at least up to 2016.
[13] Ms Visser concludes that she is of the opinion that it is “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”.
Law
Standard of appeal
[14] All the charges, except the male assaults female charge, are determined under s 115 of the Summary Proceedings Act 1957 (SPA),7 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:
115 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—
(i)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
7 Pursuant to s 397 of the Criminal Procedure Act 2011 (CPA), where the Summary Proceedings Act 1957 applies to proceedings commenced before the CPA came into effect.
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
[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:8
… 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:9
[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.
8 Britz v R [2013] NZSC 38 at [6].
9 Nonu v R [2017] NZCA 170 at [22] and [24].
[21] In Paraha v Police, Palmer J commented on the problems of the retrospective assessment of mental fitness by an appellate court. He said:10
[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.11 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.12
[23] In Leapai v Police, the appellant appealed his criminal history between December 2001 and November 2010.13 The 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.14 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”.15
10 Paraha v Police [2017] NZHC 2001 at [23] (footnotes omitted).
11 Under the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003.
12 Paraha v Police, above n 10, at [30].
13 Leapai v Police [2012] NZHC 708.
14 Under the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003.
15 Leapai v Police, above n 13, at [15].
[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.16 No further order was made as there was an ongoing order that the appellant be cared for as a care recipient.17
Submissions
Appellant
[25] In this case counsel for the appellant submits that, given Mr Trow was found unfit to stand trial in 2005, and had an assessment been completed between 2008 and 2011, a similar finding would have been made.
[26] He noted the appellant had been previously assessed to have an IQ of 55, in the extremely low range of functioning and noted that in Ms Visser’s opinion, it is highly unlikely his intellectual disability would have improved, especially without a supportive environment. He was therefore unlikely to be fit to stand trial between 2008 and 2016, therefore, a miscarriage of justice has taken place.
Respondent
[27] The respondent takes a neutral position. Mr Bourke noted it would be a matter of judicial assessment for the Court to determine whether there was sufficient information to conclude a miscarriage had occurred. However, the respondent does not dispute there is an available inference that can be drawn from the evidence of Ms Visser that the appellant had an intellectual disability between November 2008 and June 2016 and would have been unfit to stand trial.
[28] The respondent points to the comparable cases of Paraha v Police and Leapai v Police. The respondent says a distinguishing feature is that in both cases, s 38 reports were prepared shortly after the offending, and the Court was being asked to retrospectively apply findings of fitness. In Leapai, the Court had reports in 2008 and 2011 finding the appellant unfit, so could connect the dots that these findings
16 Leapai v Police, above n 13, at [26].
17 At [27].
applied to convictions in the intervening years. Here, the last formal assessment was in 2004 by Dr Goodwin. However, we have the update from Ms Visser. While the Court is proceeding on the basis of the testing recorded in the 2000 report, in my view the report from Ms Visser joins the dots in relation to the offending with the convictions under consideration in the present appeal.
[29] The respondent also notes that various files relating to Mr Trow’s convictions have been destroyed and so the police do not hold copies.18
Analysis
[30] While care is needed when making retrospective findings, in this case the evidence before the Court indicates that Mr Trow’s IQ is somewhere in the vicinity of
55. Ms Visser is of the opinion that it is highly unlikely that Mr Trow’s intellectual abilities would have improved considerably since the last comprehensive individual report was prepared some time ago, and she was of the view it was unlikely that he no longer fulfilled the criteria for intellectual disability. I have set out her views in some detail above. Based on her report and analysis, in my view, there is a strong inference that Mr Trow was, at the time the convictions for the present offending were entered, suffering a mental impairment and it is strongly likely that he was unfit to stand trial. In those circumstances a miscarriage of justice has occurred, and the convictions should be quashed.
Remedy/Orders
[31] Following the finding of a miscarriage of justice the Court must set aside the convictions under to s 121(2)(b) of the SPA and, for the male assaults female charge, under s 233 of the CPA. Additionally, under the CPA:
(3)The court must also—
(a)direct that a judgment of acquittal be entered; or
(b)direct that a new trial be held; or
(c)exercise the powers under section 234; or
18 CRN 0417, CRN 0176, CRN 3523, CRN 3526, CRN 4749, and CRN 0301 were destroyed on 12 and 14 February 2017, 19 November 2016, 25 April 2015 and 2 July 2017, respectively.
(d)exercise the powers under section 235(2); or
(e)make any other order it considers justice requires.
(4)The court may also exercise the powers under section 236.
[32] The appellant submits it is appropriate for the Court to order a judgment of acquittal be entered for the male assaults female charge, and there is no utility in directing a further trial or any other order being made.
[33] The respondent notes that no further orders were made in the cases of Paraha and Leapai, which appear to be because the appellants in those cases had supports in place as a result of unfitness findings and under the provisions of the IDCCRA.
[34] The appellant had been made a care recipient for two years from 30 March 2005,19 but it is unclear although unlikely, that supports were put in place. Mr Hudson, in his submissions, indicated that Mr Trow was presently supported by a retired psychologist but his community supports and networks were not extensive, that he had funds or an income from the Ministry of Social Development, and that he had faced no charges in the intervening period.
[35] Mr Bourke indicated that an option would be to order a retrial for the male assaults female charge and then a s 38 report would be likely be ordered, which would find the appellant unfit, and the matter would then be disposed of under the Criminal Procedure (Mentally Impaired Persons) Act 2003 (CPMIPA). But that would result in supports being put in place as Mr Trow would become a community care recipient.
Analysis
[36] The central question is whether an acquittal or retrial should be ordered for the charge of male assaults female.
[37] If there were to be a retrial and a s 38 report ordered that found the appellant unfit to stand trial, he would then be subject to the (CPMIPA) regime. Under the Act, enquiries were to be made to determine the most suitable method of dealing with him
19 High Court Decision (2005), above n 2, at [14](e).
under s 24 or s 25, and that must include a consideration of all the circumstances and an assessment from one or more health assessors (at least one of whom must be a psychiatrist).20 While enquiries are being made, the appellant can be either bailed to an approved address or remanded to a hospital or secure facility.21 Following those enquiries, the court may order the defendant’s detention at a hospital as a special patient or secure facility as a special care recipient.22
[38] If the s 38 report does not find Mr Trow unfit to stand trial, there would be a retrial. That would be a retrial on a charge for which he has already been convicted, and the conviction overturned. This seems very unfair in the circumstances.
[39] The Courts in Paraha and Leapai did not order retrials. In my view, the circumstances here are similar, the only difference being that Mr Trow is not under any form of care, as it seems the appellants were in those cases.
[40] While, as the respondent says, it may be that Mr Trow would benefit from some support, at the same time, in my view, a retrial would compound the unfairness that has already occurred. In addition, there would be delays and further rounds of assessment for Mr Trow, as well as the challenges of further court proceedings.
[41] However, the most important factor against the ordering of a retrial is that where the appellant has served the sentence imposed following a conviction it is not appropriate that he be required to face the charges again.23 That point weighs heavily against ordering a retrial.
[42] As for the acquittal, I do not propose making an order for an acquittal as the Court is not saying Mr Trow is free from the criminal charges, nor that he is unfit to stand trial,24 but rather that there had been a miscarriage of justice. While it is open for the Court to make such an order under s 233, it was not ordered in Paraha or Leapai and I do not consider it appropriate here.
20 Criminal Procedure (Mentally Impaired Persons) Act 2003, ss 24(1)(b) and 25(2)–(3).
21 Section 23(2).
22 Section 24(2).
23 R v Webster (1996) 13 CRNZ 561 (CA); and R v Kino [1997] 3 NZLR 24 (CA) at 29.
24 Criminal Procedure (Mentally Impaired Persons) Act 2003, s 7(1).
Conclusion
[43] Therefore, in conclusion, I find there has been a miscarriage of justice in relation to each of Mr Trow’s convictions that are listed between 2008 and 2016 and those convictions should be set aside.
Result
[44] I order the convictions be set aside and make no further orders. The appeal is allowed.
Grice J
Solicitors:
Crown Solicitor, Ngāmotu | New Plymouth for Respondent.
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