Williams v Police
[2024] NZHC 847
•18 April 2024
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2023-404-543
[2024] NZHC 847
BETWEEN TETU MARERE WILLIAMS
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 27 February 2024 (Further submissions filed 15 March 2024) Appearances:
V Letele for Appellant
J E Bragg for Respondent
Judgment:
18 April 2024
JUDGMENT OF WILKINSON-SMITH J
This judgment was delivered by me on 18/04/2024 at 2.30pm.
Registrar/Deputy Registrar
……………………………..
Solicitors:
Law and Justice Ltd, Auckland
Kayes Fletcher Walker, Office of the Crown Solicitor, Manukau City
WILLIAMS v NEW ZEALAND POLICE [2024] NZHC 847 [18 April 2024]
Introduction
[1] The appellant, Mr Williams, appeals against a District Court decision dated 12 September 2023 finding him fit to stand trial pursuant to s 8A of the Criminal Procedure (Mentally Impaired Persons) Act 2003 (the CP(MIP) Act).1
[2]The grounds of appeal are that:
(a)the judged erred in failing to give the parties the opportunity to be heard and to call evidence; and
(b)The judge erred in finding the appellant fit to stand trial.
[3] The respondent initially conceded that there had likely been a procedural misstep in the District Court but understandably was not prepared to take a position on the issue of fitness without having heard evidence from the report writers.
[4] The appeal proceeded by way of rehearing in accordance with s 17 of the CP(MIP) Act. On 27 February 2024, the Court heard evidence from Dr Jeremy Skipworth and Dr Kyros Karayiannis.
[5] Following that hearing, both parties filed additional submissions. The appellant submits that both experts found on balance that Mr Williams would be unfit to stand trial and invites the Court to make the following findings:
(a)pursuant to s 8A(1) of the CP(MIP) Act, Mr Williams has a mental impairment due to a diagnosis of intellectual disability mild/moderate; and
(b)pursuant to s 8A(2) and (3)of the CP (MIP) Act, Mr Williams is, on the balance of probabilities, unfit to stand trial.
1 Police v Williams [2023] NZDC 26476.
[6] The respondent submits that, on the basis of the available reports and the evidence of the experts, the Court may consider that the appellant is unfit to stand trial. In that event, the respondent submits that the District Court decision should be quashed, and the matter remitted to the District Court for an involvement hearing pursuant to s 10 of the CP(MIP)Act.
Background
[7]The appellant faces four sets of charges.
Indecent assault
[8] It is alleged that on 10 January 2023 the appellant smacked the complainant on her buttock while she was working at Pak’nSave. The police evidence consists of two witnesses, that of the complainant, and the officer in charge. The defendant told police that he had just swung his hand and it happened to hit the victim and that he did not mean to.
Unlawfully getting into a motor vehicle
[9] The appellant is charged together with his partner for unlawfully getting into a motor vehicle between 9 and 10 January 2022. The police case relies on the evidence of four witnesses, namely the complainant and three police officers.
Unlicensed driver and unlawfully takes motor vehicle
[10] It is alleged that on 19 July 2022 the appellant was driving a stolen motorbike while forbidden to drive.
[11] There are two witnesses namely the complainant and the officer in charge. The appellant told police that he saw the bike so just jumped on it and took it. He was riding the bike to get some food and smokes. He said he was forbidden to drive at some stage the previous year.
Family violence file
[12] The appellant faces charges in relation to alleged offending against his pregnant partner on 14 and 19 February 2023:
(a)threatening to kill (“I will find you and murder you”);
(b)assault with intent to injure (throwing a shoe at her and punching her six times to the arm); and
(c)assault on person in a family relationship (punch to the stomach causing her to fall to the ground)
[13] The evidence in respect of the family violence matters consists of three witnesses namely the complainant and two police officers.
Procedural history
[14] The CP (MIP) Act was engaged on 5 July 2022 and fitness assessment reports pursuant to s 38 of the Act were directed. There was significant delay in obtaining the reports due to resourcing issues, administrative errors ordering the reports and confusion over the appellants custodial status.
[15] At an appearance on 9 June 2023, the Court was in a position to schedule a s 8A hearing as both s 38 reports had been received. Both experts considered that the defendant suffered a mental impairment due to his intellectual disability. Dr Karayiannis opined that the defendant was likely to be found unfit to stand trial. Dr Skipworth said that the defendant was fit to enter a guilty plea however was likely to be unfit to stand trial. Dr Karayiannis did not have the benefit of the summaries of fact and described the assessment as challenging.
[16] On 12 September 2023, the s 8A hearing was held. The report writers were not present at court. It is unclear as to whether either party had asked that they be available to give evidence at the hearing. It does not appear that any written submissions were filed before the hearing and the District Court Judge did not record in his decision
whether either party sought the opportunity to make oral submissions or call evidence. The Judge found on the basis of Dr Skipworth’s report that the appellant was “fit to plead if not necessarily fit to stand trial.”2 The matter was adjourned for a case review hearing.
The approach on appeal
[17] Sections 16 and 17 of the CP (MIP) Act govern the procedure to be followed when a defendant appeals against a finding relating to fitness:
16 Appeal by defendant against finding relating to fitness to stand trial or sufficiency of evidence
(1)A defendant may appeal against the finding under section 8A(2)(b) that the defendant is unfit to stand trial or, as the case may be, fit to stand trial.
…
(2)For the purposes of an appeal under this section,—
(a)the finding appealed against is to be regarded as a conviction; and
(b)the provisions of Part 6 of the Criminal Procedure Act 2011 relating to appeals against conviction, so far as they are applicable and with any necessary modifications, apply to the appeal.
17Matters for appellate court on appeal under section 16
…
(3)In the case of an appeal under section 16(1) against a finding relating to the appellant's fitness to stand trial, the court must (except where the charge against the appellant has been dismissed under section (1)) consider the evidence of 2 health assessors, and confirm or quash the finding relating to the appellant's mental impairment.
(4)If the Court is satisfied that the appellant is mentally impaired, the court must –
(a)give the appellant and the respondent an opportunity to be heard and to present evidence as to whether the appellant is unfit to stand trial; and
2 Police v Williams, above n 1, at [20].
(b)confirm or quash the finding relating to the appellant's fitness to stand trial.
The approach on appeal
[18] The appeal is brought under s 16(1A) of the CP(MIP) Act. Such an appeal is treated as an appeal against conviction. Part 6 of the Criminal Procedure Act 2011 applies. The Court must allow the appeal if satisfied that:3
(a)the trial judge erred in the assessment of the evidence to such an extent that a miscarriage of justice has occurred; or
(b)a miscarriage of justice has occurred for any reason.
[19] A miscarriage of justice means any error, irregularity, or occurrence in or in relation to or affecting the trial that:4
(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.
[20] The appeal is by way of rehearing.5 The appellate court must form its own view of the evidence.6 If the appellate court comes to a different view of the evidence to the trial judge, that indicates error and the appeal must be allowed.7 It is for the appellant, however, to show that the Judge erred either by pointing to an error in the assessment of the evidence or by pointing to a miscarriage which occurred for some other reason.
[21] Not every error in the assessment of evidence will result in a successful appeal. The error must lead to a miscarriage of justice either because of a real risk that, without
3 Criminal Procedure Act 2011, s 232(2).
4 Section 232(4).
5 Sena v New Zealand Police [2019] NZSC 55, [2019] 1 NZLR 575 at [20] and [26].
6 Austin, Nichols & Co Inc v Stiching Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [13] and [16].
7 Sena v New Zealand Police, above n 5, at [38].
the error the appellant would have secured a more favourable result; or because the error made the trial unfair.8
[22] Further, not every error or irregularity will result in an unfair trial. The assessment is to be made in respect of the trial overall.9 What is required is a fair trial, not a perfect trial.10
[23] Fitness to stand trial must be determined under s 8A of the CP(MIP) Act prior to the determination as to involvement.
[24]Section 8A(2) provides:
(2)If the Court is satisfied on the evidence given under subsection (1) that the defendant is mentally impaired, the court must record a finding to that effect and—
(a)give each party an opportunity to be heard and to present evidence as to whether the defendant is unfit to stand trial; and
(b)find whether or not the defendant is unfit to stand trial; and
(c)record the finding made under paragraph (b).
[25] It is clear the Court must give each side the opportunity to present evidence as to whether the defendant is mentally impaired and whether he or she is fit to stand trial. Further the Court must give each side the opportunity to make submissions.
[26] In this case it is accepted by both parties that this procedure was not followed in the District Court.
The District Court Decision
[27] The District Court Judge recorded that he had available two fitness reports prepared pursuant to s 38 of the CP(MIP) Act. One from Dr Skipworth dated 2 June 2023 and one from Dr Karayiannis dated 22 May 2023.11 The reports reveal that
8 Haunui v R [2020] NZSC 153, [2021] 1 NZLR 189 at [67].
9 Wiley v R [2016] NZCA 28, [2016] 3 NZLR 1 at [35].
10 E (CA727/09) v R [2010] NZCA 202 at [67]–[68]; R v Matenga [2009] NZSC 18, [2009] 3 NZLR
145 at [30]; and Ellis v R [2011] NZCA 90 at [58] citing R v Find [2001] 1 SCR 863 at [28].
11 At [2].
Mr Williams has had an intellectual disability from birth with developmental delay, poor academic achievement, and an early exit from school because of behavioural difficulties at 14 or 15 years old.
[28]The District Court Judge recorded the expert evidence as follows:
[16] As Dr Skipworth anticipates the clinical criteria for intellectual disability having been met, that would constitute a mental impairment in terms of the fitness provisions. Dr Skipworth notes that beyond basic instructions about a preferred plea, Mr Williams would struggle to give clear and coherent instructions during a trial process which he may not fully understand. For his part Dr Skipworth had no difficulty understanding the defendant’s position. He concedes that the defendant would have difficulties in giving evidence.
[17] In summary, he did not consider that Mr Williams’ cognitive impairments were sufficiently disabling to impact on functional capacities relevant to entering a guilty plea. However, the challenges associated with pleading not guilty and standing trial were evidently more complex.
[18] In short, the defendant would be fit to plead guilty. Were he to plead not guilty in Dr Skipworth’s opinion the Court may be unable to make sufficient accommodation for him to fairly participate in the proceedings.
[19] Dr Karayiannis in his report comes to more or less the same conclusions. In his view the defendant does not have a good understanding of a guilty and a not guilty plea. He understands his lawyer’s role but in discussions about planning a defence, the defendant became overwhelmed and confused and essentially obsessed on the bail issue. According to Dr Karayiannis, the defendant has an impaired understanding of the Court process. He would have difficulty following events through a trial. He would be unable to deal with the unexpected or able to instruct counsel in real time. He would struggle to cope with cross-examination or the stress of being in a courtroom. In his view the defendant’s ability to communicate with counsel is poor. He could not focus on questions. Applying the criteria from Nonu v R, the defendant in Dr Karayiannis’ view is unfit to stand trial.
(Footnote omitted)
[29] His Honour then found that if any of the charges were to be defended, a communication assistant could be appointed; but on the assessment of the charges, the facts of the charges, and the defendant’s explanation of the charges, the defendant was fit.
The evidence on appeal
[30] Dr Karayiannis gave evidence that there were clear indications of intellectual disability. The defendant’s overall IQ level was 60. He had a score in working memory of 77, but a processing score of 59. Dr Karayiannis said:
I believe if Mr Williams’s lawyer is satisfied that she can give adequate direction [should] he choose to plead guilty, I believe the Court may accept that as being above the threshold for fitness. And I agree with Dr Skipworth that if he was to plead not guilty, he would have gross difficulty in coping with what follows in court.
[31]Dr Karayiannis went on to say:
I do believe there would be considerable difficulty in Mr Williams being able to follow what happens in court and make decisions in the moment and instruct his counsel as court goes along. I think he would have considerable difficulty in doing that unassisted.
[32] Dr Karayiannis considered that with the assistance of a communication assistant Mr Williams, “may or may not be above threshold for fitness.” Dr Karayiannis was uncertain whether a communication assistant would help.
[33] Dr Karayiannis said that the defendant’s condition is an irreversible condition, and his intellectual disability will not change. Dr Karayiannis also said, in reference to the cognitive tests which indicated variation in performance:
… I think there is a veneer there that may be misinterpreted within a courtroom situation. I think that if the Court is unaware that Mr Williams has an intellectual disability, and 60 although it’s still described a mild it’s still pretty bad. But in a court situation; if the Court is unaware of this, that certainly would—may possibly mislead the Court … as to his true abilities, yes.
[34]Dr Skipworth said:
I think that in order for him to be able to fairly participate in a trial proceeding, it would need to be at the very straightforward simple kind of end of the spectrum. There would need to be very limited amount of evidence presented. It would be important that he wasn’t required to give evidence. He would need a communications assistant. It would be important to check with him on a pretty regular basis that he was following what was happening. It would be important for the people talking to try and use very simple words and concepts. And in those kinds of circumstances, I think it is possible that he could be fit to stand trial. But with more complicated proceedings and in particular if he was required to give evidence, I don't think he could meaningfully participate in those kinds of proceedings.
[35]In respect of the communications assistant, Dr Skipworth said:
… [I]t’s not necessarily just about whether there is a communications assistant. But as I think I’ve explained in my report, his ability to grasp concepts and understand things is at a very simplistic level. He can very easily misinterpret questions and so, even with a communications assistant attempting to explain things to him, there may simply not be enough time for any kind of reassurance that he’s understood what has just been said in a way which allows him to have a discussion with counsel if he needs to in real time that would effectively satisfy this necessity for him to be able to meaningfully participate. And so at the most simple end of the spectrum, you know, if you can try and clarify for me; it might be possible but I have kind of suggested in my report that with many witnesses over a longer period of time I very much doubt it would be.
[36] In respect of other accommodations that the Court could make such as regular breaks Dr Skipworth said:
The problem is not necessarily resolvable by having regular breaks. Some of the discussions that I had with him; it was necessary to go over things multiple times before I was sure that he understood. And I don't think that the Court is likely to be able to accommodate regular breaks after anyone has said anything of significance that he needs to understand. I think even though the communications assistant might try and simplify things and break things down for him; without having the opportunity to check with him what he has understood, it’s still possible that there could be misunderstandings. That was certainly my experience. And I tried to include some quotes from things that he told me, which make it clear that his understanding of things can be very simplistic and he can easily get the wrong interpretation of something unless it’s explained several times. And even then he doesn’t necessarily retain that information, so discussions with counsel or others beforehand won’t necessarily translate into an enlightened perspective on something the following day or the following week.
[37] In relation to the level of impairment suffered by the defendant, Dr Skipworth said:
He’s at 60, which is a long way below 70, so there are very few people in our community who have an IQ as low as he does. He is very intellectually disabled, and that of course was evident from very early in his life when he didn’t walk or talk at the appropriate times. That was noticed by his caregivers. He didn’t do well at school and dropped out early. So he not only had an intellectual disability from birth, but he didn’t benefit from the education that most of us would’ve had. And so yes he’s in a very disabled
— the number of people in our community with his level of disability at any age is very small. And of course because he was assessed by youth experts at the time, they were able to norm his performance with other youth. And as far as I know, his IQ hasn’t been more recently assessed. But they are reasonably stable numbers across time and so it’s very likely that were it to be reassessed now, it would not be very different to what it was then.
Discussion
[38] The Court of Appeal has recently endorsed its earlier findings as to the principles underpinning the fitness to stand trial.12 In Nonu v R it was held that:13
[26] There are three key principles underpinning the fitness to stand trial requirements of the CPMIP Act. First, the requirements promote fairness to a defendant by protecting his or her rights to a fair trial and to present a defence. Second, the requirements also promote the integrity and legitimacy of the criminal justice system by only holding defendants accountable if they understand the reasons why they have been prosecuted, convicted and punished. Third, the requirements enhance society's interest in having a reliable criminal justice system by not placing on trial defendants who, through lack of fitness, are unable to advance an available defence.
[39]Further, the Court also endorsed the following statement:14
[29] An inquiry into a defendant’s fitness to stand trial, however, involves more than an assessment of whether or not the defendant can participate in his or her trial by simply performing relevant trial functions. A defendant must also have the capacity to participate effectively in his or her trial. This involves an assessment of the defendant’s intellectual capacity to carry out relevant trial functions. The reason for the need to inquire into the defendant’s capacity to participate effectively in his or her trial is that the principles we have explained above are not honoured in cases where, for example, a defendant superficially appears to participate in his or her trial but in reality is, because of intellectual [or mental] disability, nothing more than a bystander.
[40] With the additional benefit available to this Court of hearing from both experts, it is clear that the appellant meets the test for unfitness to stand trial. There has also been further evidence placed before me that the defendant was previously found unfit to plead in the Youth Court. This was not known to the District Court Judge. Two reports prepared in the Youth Court initially considered that the appellant would be fit to plead but later reports both found that even with a communication assistant, the appellant would likely be found unfit to stand trial and that was, in fact, the outcome.
[41]Unfit to stand trial, is defined in s 4 of the CP(MIP) Act as follows:
(a) means a defendant who is unable, due to mental impairment, to conduct a defence or to instruct counsel to do so; and
12 Hanara v R [2022] NZCA 608.
13 Nonu v R [2017] NZCA 170 (footnotes omitted).
14 Nonu v R, above n 13 (footnote omitted).
(b)includes a defendant who, due to mental impairment, is unable—
(i)to plead:
(ii)to adequately understand the nature or purpose or possible consequences of the proceedings:
(iii)to communicate adequately with counsel for the purposes of conducting a defence
[42] In the present case, the District Court made a finding of fitness based on fitness to enter a guilty plea in circumstances where counsel advised that the defendant did not intend to enter a guilty plea.
[43] The section does not easily support the distinction made between ability to plead guilty and a wider ability to stand trial. A person who is unable to plead clearly comes within the section but a person who is able to plead but unable, due to mental impairment, to conduct a defence or to instruct counsel to do so also meets the test for unfitness.
[44] A finding of fitness only to permit a defendant to enter a guilty plea is not a neutral or benign result. It brings the mentally impaired defendant within the criminal justice regime. It exposes that defendant to the punitive elements of the criminal justice system, and it creates a risk that future considerations of fitness will be affected by an apparent finding of fitness in respect of the hearing that the defendant pleaded guilty to. A quite wrong impression could be created.
[45] In the present case the Crown has responsibly conceded that the appellant is likely to be found unfit.
[46] The expert evidence paints a picture of an appellant who is, in laymen’s terms, significantly mentally impaired due to intellectual disability. That intellectual disability will not change over time. His adaptive functioning may give the impression he is more capable than he is. That is not to say that because he is unfit to plead the appellant should have carte blanche to behave however he wishes to. It simply means that the criminal justice system is not the correct forum to deliver appropriate consequences for his actions. In this case, the best that the experts could say was that
in a very simple hearing and hypothetically perfect situation, the appellant might be able to adequately participate in a trial.
Result
[47] The defendant is mentally impaired by reason of his intellectual disability. I find that he is unfit to stand trial pursuant to s 8A(2) and (3) of the CP(MIP) Act.
[48] I quash the finding of fitness made in the District Court on 12 September 2023 and remit the matter back to the District Court for an involvement hearing pursuant to s 10 of the CP(MIP) Act.
Wilkinson-Smith J
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