Trow v Police [2021] NZHC 2012 (5 August 2021)

Last Updated: 16 September 2021

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 38 report being privately obtained by Mr Trow. Her Honour noted:

If no updated report is obtained, the Court will be required to make an assessment of Mr Trow’s fitness to plead based on a historical report. If an updated report is obtained, the Court will be required to make a retrospective assessment as to Mr Trow’s condition in the period 2008-2016. Plainly both options have disadvantages.

• [8] However, she also observed that counsel had agreed that it would be useful, in the first instances, to attempt to obtain an expert view on the preliminary question whether an intellectual disability such as Mr Trow’s, rather than a mental illness, is capable of “improvement”. Accordingly, Gwyn J adjourned the appeal to allow Mr Hudson to make those inquiries.

• [9] An expert report on that preliminary question was given by Dr Sabine Visser (a consultant clinical and neuropsychologist and special forensic psychologist) on 13 July 2021. Dr Visser assessed the psychological reports that had been given regarding Mr Trow from 1997 onwards, and concluded that, based on this information, his IQ on a 95 per cent confidence level was between 52 at the lowest and 60 at the highest (although Dr Visser did acknowledge that she did not have all the testing information and data from the reports to completely verify this).

• [10] Dr Visser noted that in most literature, the diagnosis of an intellectual disability is accepted as a lifelong condition that cannot be changed, but that it was now accepted that adaptive functioning can be affected by teaching and support in a caring environment.

• [11] Her ultimate opinion was 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, particularly given that it appeared unlikely that he had access to a rehabilitative environment from 2005 to 2016, due to his itinerant lifestyle.

• [12] Mr Trow also seeks leave to appeal out of time and leave to adduce fresh evidence. The Crown does not oppose the granting of leave. I therefore grant both applications.
• [13] A hearing by way of teleconference was held to progress the appeal towards determination.

Position of the parties

Mr Trow

• [14] After setting the procedural background and noting Dr Visser’s decision, Mr Hudson, counsel for Mr Trow, submitted that in terms of next steps, on the basis of Dr Visser’s report, he did not consider that there would be any benefit from obtaining a further assessment for Mr Trow.

• [15] Counsel submitted that Mr Trow was intellectually impaired and had remained so since the 2005 proceedings, and that he continued to maintain his appeal against conviction on the basis that he was not fit to stand trial throughout the period between 2008 and 2016.

The Crown

• [16] Mr Bourke, counsel for the Crown, accepted Dr Visser’s finding that, in conjunction with the earlier s 38 reports, it was highly unlikely that Mr Trow would have improved so considerably since 2016 that he no longer fulfilled the criteria of intellectual disability.

• [17] Counsel then turned to a discussion of post-conviction issues of fitness, and firstly noted the case of Britz v R, where the Supreme Court (discussing the case of SR v R in the Court of Appeal), made the following observations on these types of appeals:²

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

² Britz v R [2013] NZSC 38 at

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] According to counsel, under s 7(1) of CPMIP, a Court in this type of appeal is not actually making a finding of unfitness (as that may be made only before all evidence in a trial has concluded), and noted the observations of Palmer J on this issue:³

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.

• [19] In that case, the appellant (who was working as a window-washer at an intersection) kicked the rear taillight of a motorist’s vehicle, causing it to crack. In June 2015, he pleaded guilty to a wilful damage charge and was convicted and sentenced, but in 2016, he faced fresh charges (relating to common assault on family members) and s 38 reports were ordered. Those reports confirmed that the appellant had an intellectual disability and that he was unfit to plead, and he was made a special care patient for 12 months. The appellant brought an appeal against his wilful damage charge out of time, on the basis that he was unfit to stand trial.

• [20] Palmer J found that it was reasonable to infer that that at the time of the appellant’s 2015 conviction, they had an intellectual disability and were unfit to stand trial. He therefore set aside the conviction.

• [21] Counsel also referred to the case of Leapai v Police, where the appellant appealed his entire criminal history between 2001 and 2010.⁴ He had been found unfit to stand trial in 2008 in relation to dishonesty offending, and was released back into the community after support services under the Intellectual Disability Act 2003 had been put into place. The appellant again faced charges in 2011, and again was found unfit to plead as a result of an intellectual disability. Following the filing of the appeal,

³ Paraha v Police [2017] NZHC 2001 at [23] (footnotes omitted).

⁴ Leapai v Police [2012] NZHC 708.

the appellant was found to have a longstanding and permanent intellectual disability that meant that had he been assessed between 2001 and 2010, he would have been found unfit to stand trial. This led to Potter J setting aside all of the appellant’s convictions.

• [22] In terms of Mr Trow’s case, counsel noted that a number of his files had been destroyed by police, but that based on the updated report by Dr Visser, a reasonably strong inference could be drawn that Mr Trow had an intellectual disability between November 2008 and June 2016 and that he would have been unfit to stand trial. Counsel noted that should the Court be satisfied that a miscarriage of justice has occurred, it could set the conviction aside under s 233 of the Criminal Procedure Act 2011 (CPA).

• [23] In particular, counsel noted that one of the factors that led the Court to make no further orders in both Paraha and Leapai was that the appellants already had support services in place as a result of unfitness findings, whereas it was unclear whether there were any current supports in place for Mr Trow.

Relevant law and analysis

• [24] Under s 232(4) CPA, a miscarriage of justice is defined as any error, irregularity, or occurrence in or in relation to or affecting the trial that has created a real risk that the outcome of the trial was affected or has resulted in an unfair trial or a trial that was a nullity.

• [25] In Nonu v R, the Court of Appeal discussed the requirements of fitness to stand trial under the CPMIP Act:⁵

The CPMIP Act introduced a new regime for determining if a defendant is fit to stand trial. The definition of unfitness to stand trial in s 4 of the CPMIP Act differs from the test previously contained in s 108 of the Criminal Justice Act 1985, which was only engaged if a defendant was found to be mentally disordered under the Mental Health (Compulsory Assessment and Treatment) Act 1992. Parliament's intention when it passed the CPMIP Act was to broaden the qualifying criteria for assessing whether or not a defendant is unfit to stand trial by including persons who are mentally impaired through, for example, an intellectual disability, a personality disorder or a neurological

⁵ Nonu v R [2017] NZCA 170 at [25]- [26] (footnotes omitted).

disorder. Parliament wanted to ensure persons with intellectual disabilities, personality and neurological disorders, and other conditions were not forced to stand trial in circumstances where doing so would offend the following principles.

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.

• [26] The Court went on to state:⁶

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 disability, nothing more than a bystander.

• [27] This case has some similarity to the circumstances in Paraha and Leapai, as it involves a retrospective assessment of whether the appellant was unfit at a past date, when they faced criminal charges.

• [28] A similar situation arose in Wilkinson v Police in 2017.⁷ In that case, the appellant had pleaded guilty to a charge of indecently assaulting a 16-year-old girl in January 2012 and was subsequently charged with similar offending in 2016 but found unfit to stand trial under the CPMIP Act. The psychiatrists who assessed the appellant as being unfit to stand trial in 2016 were then asked to consider whether he was also likely to have been unfit to plead to the charge in 2012. They prepared a joint opinion confirming that in their view the extent and severity of the appellant’s impairments with regard to his understanding of the legal process were such that on balance he probably would have been unfit to stand trial in 2012. This evidence persuaded the

⁶ At [29] (footnotes omitted).

⁷ Wilkinson v New Zealand Police [2017] NZHC 1737.

Court that a miscarriage of justice had occurred in relation to the 2012 charge, and the conviction was quashed.

• [29] However, as noted in Paraha above, there is certainly some difficulty in applying a retrospective assessment to a trial that has already occurred, particularly when there is a scarcity of evidence. The Court of Appeal also made this point in SR v R, referring to the English case of R v Walls:⁸

Unless there is contemporaneous evidence to suggest that notwithstanding his plea and the apparent satisfaction of his legal advisers and the judge that he was fit to tender it, and participate in the trial, it will be very rare indeed for a later reconstruction, even by distinguished psychiatrists who did not examine the appellant at the time of trial, to persuade the court that notwithstanding the earlier trial process and the safeguards built into it that the appellant was unfit to plead, or close to being unfit or that his decision to deny the offence and not advance diminished responsibility can properly be explained on this basis. The situation is, of course, different if, as in Erskine, serious questions about his fitness to plead were raised in writing or expressly before the judge at trial.

• [30] Despite this, a potentially distinguishing feature is the fact that, unlike Wilkinson, Paraha and Leapai, the appellant in this case, Mr Trow, had already been the subject of an s 38 report and had previously been deemed unfit to stand trial. Arguably, this provides a stronger basis for the Court to consider whether at the time of his more recent offending between 2008 to 2016, Mr Trow was unfit to stand trial. Dr Visser’s report also provides useful evidence for this assessment.

• [31] As a result, I consider that the appeal should proceed to hearing, given that there does seem to be a potential concern that during the time at which Mr Trow was charged, convicted and sentenced, he was unfit to stand trial, and that concern should be considered by the Court.

• [32] The proper Court for the hearing to take place is in the High Court at New Plymouth. Mr Hudson, who is based in Auckland, applied for leave to participate in the hearing by AVL. Subject to the New Plymouth High Court having the technology to permit that, I grant that application.

⁸ SR v R [2011] NZCA 409 at [58].

Result

• [33] 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.

Churchman J

Solicitors:

Crown Solicitor, New Plymouth for Respondent

cc: J Hudson, Barrister, Auckland for Appellant