Trow v Police - [2021] NZHC 2012

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

I TE KŌTI MATUA O AOTEAROA NGĀMOTU ROHE

CRI-2021-443-5,6,7,8,9,10,11

[2021] NZHC 2012

REI TROW

v

NEW ZEALAND POLICE

Teleconference: 5 August 2021

Counsel:

J Hudson for Appellant

J E Bourke for Respondent

Judgment:

5 August 2021

JUDGMENT OF CHURCHMAN J

Introduction and background

[1] Mr Trow has filed a notice of appeal against convictions entered against him between 2008 and 2016, for the following offences:

(a)obscene language;

(b)shoplifting (four charges);

(c)breach of a local liquor ban;

(d)breach of community work; and

(e)male assaults female.

TROW v NEW ZEALAND POLICE [2021] NZHC 2012 [5 August 2021]

[2] In 2003, Mr Trow faced charges of aggravated robbery, kidnapping, and wounding with intent to cause grievous bodily harm. He was found to be unfit to stand trial, and an order was made that he be detained in hospital as a special patient. However, following an oral ruling from Judge Blackie that Mr Trow appeared to be suffering from an intellectual incapacity rather than from an actual mental illness, Mr Trow appealed the decision that he be detained in hospital as a special patient.

[3] On 30 March 2005, Nicholson J made formal orders quashing the decision that he be detained in hospital as a special patient under the Mental Health (Compulsory Assessment and Treatment) Act 1992, and instead found that Mr Trow was mentally impaired and unfit to stand trial.1

[4] Nicholson J also ordered that pursuant to s 25(b) of the Criminal Procedure (Mentally Impaired Persons) Act 2003 (CPMIP), Mr Trow be cared for as a care recipient under the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003 for a period of two years.

[5] Mr Trow’s appeal appears to be brought on the grounds that because he was found unfit to stand trial in 2005 due to his intellectual impairment, he likely remains intellectually impaired, including during his spate of offending between 2008 and 2016. As a result of this, his position is that there has been a miscarriage of justice for the convictions entered during the period that he was unfit to stand trial.

[6] When Mr Trow’s current appeal was filed, on 24 March 2021, Grice J directed that two reports be obtained under s 38(1)(a) of the CPMIP Act. Following this, an issue arose as to whether this Court actually had jurisdiction to order a report in the current case. Counsel were invited to provide submissions addressing this point.

[7] Gwyn J heard these submissions via telephone conference on 31 March 2021 and issued a minute on 24 April 2021. In that minute, her Honour held that the Court did not have jurisdiction to order an s 38 in respect of Mr Trow, given that he had served all sentences previously imposed on him, and was not on custody or on bail.

1 See Trow v New Zealand Police HC Auckland CRI-2004-404-208, 30 March 2005.

She also considered whether the Court would be assisted by a further s…

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 2012
Case: [2021] NZHC 2012
Decision Date: 5 August 2021

CaseChat Overview and Summary

Rei Trow has appealed against convictions entered against him between 2008 and 2016, for offences including obscene language, shoplifting, breach of a local liquor ban, breach of community work, and male assaults female. Trow was found unfit to stand trial in 2003 due to intellectual impairment and had been detained in hospital as a special patient under the Mental Health (Compulsory Assessment and Treatment) Act 1992. However, in 2005, Nicholson J ordered that Trow be cared for as a care recipient under the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003 for two years, finding that he was mentally impaired and unfit to stand trial. Trow argues that he likely remained intellectually impaired during the period of offending and that his convictions therefore constitute a miscarriage of justice. The court was required to determine whether Trow was unfit to stand trial between 2008 and 2016 and if so, whether this constituted a miscarriage of justice.

The court considered whether it had jurisdiction to order a report in the current case, and held that it did not. However, the court did consider whether it would be useful to obtain an expert view on the preliminary question of whether an intellectual disability such as Trow’s, rather than a mental illness, is capable of "improvement". Dr Sabine Visser concluded that it was "highly unlikely" that Trow would have improved so considerably since 2016 that he no longer fulfilled the criteria of intellectual disability. The court found that there does seem to be a potential concern that during the time at which Trow was charged, convicted and sentenced, he was unfit to stand trial, and that concern should be considered by the Court.

The applications for leave to appeal out of time and to adduce further evidence are granted. The Registrar is directed to set this appeal down for hearing in the High Court at New Plymouth at the soonest date convenient to counsel. Mr Hudson is granted leave to appear by way of AVL.

Orders