Trow v Police - [2021] NZHC 2585

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…

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 2585
Case: [2021] NZHC 2585
Decision Date: 2 September 2021

CaseChat Overview and Summary

The appeal in Trow v Police was heard by Grice J in the High Court of New Zealand. The appellant, Rei Trow, appealed his convictions entered between 2008 and 2016 on the basis of a miscarriage of justice, arguing that he was unfit to stand trial due to his intellectual disability. The respondent, New Zealand Police, took a neutral position on the appeal. The court had to decide whether there was a miscarriage of justice based on the appellant's fitness to stand trial at the time of the convictions.

Grice J began by reviewing the appellant's background, noting that he had been found unfit to stand trial in 2003 but was not detained or provided with the necessary support. The court then examined the assessment of Ms Sabine Visser, a Consultant Clinical and Neuropsychologist, who concluded that the appellant's intellectual disability was unlikely to have improved significantly since 2004, making it probable that he was unfit to stand trial between 2008 and 2016. The court found that the evidence supported the inference that the appellant was suffering from a mental impairment at the time of the convictions, leading to a miscarriage of justice.

Grice J set aside the convictions and made no further orders, finding that ordering a retrial or an acquittal would compound the unfairness already experienced by the appellant. The court held that it was not appropriate to require the appellant to face the charges again, as he had already served the sentence imposed following the convictions.

Orders