Ferguson v R [2010] NZCA 2 (3 February 2010)

Last Updated: 16 February 2010

IN THE COURT OF APPEAL OF NEW ZEALAND

CA594/2008

[2009] NZCA 157

THE QUEEN

v

JASON MARK FERGUSON

Hearing: 20 April 2009

Court: Ellen France, Heath and Fogarty JJ

Counsel: C J Tennet and B J Hunt for Appellant
N P Chisnall for Crown

Judgment: 30 April 2009 at 10.30 am

JUDGMENT OF THE COURT

1. The application for extension of time for filing the appeal is granted.
2. The appeal is to be set down for hearing forthwith.
   

REASONS OF THE COURT

(Given by Ellen France J)

Introduction

[1] The appellant was convicted of murder following trial by jury in December 2002 before Rodney Hansen J. He was sentenced on 5 February 2003 to a term of life imprisonment. He now seeks an extension of time for the filing of an appeal against his conviction.
[2] At the hearing of this matter, we dealt only with the application for an extension of time for filing the appeal. Because we have decided Mr Ferguson should be able to have the substantive appeal heard, we need only deal briefly with the relevant background and our reasons.

Factual background

[3] The events giving rise to the charge took place on 9 June 2002. Mr Ferguson had met the victim, John Sorrenson, while hitch-hiking and they had spent the evening together. Mr Ferguson admitted he struck the victim several times and stabbed him a number of times. His defence at trial was that he was provoked into doing so when the victim grabbed at his penis after Mr Ferguson came out of the shower. The defence case was that this conduct triggered a recall of past abuse leading to a loss of self-control.

Grounds of appeal

[4] Numerous grounds are sought to be advanced on appeal. However, the central issue on which we heard argument was on the effect of Mr Ferguson’s mental state at the time of trial. The relevant chronology of events on this aspect is set out below.
[5] On 13 June 2002, a District Court judge ordered a psychiatric report. Mr Ferguson was seen by a consultant psychiatrist, Dr Majeed, who on 26 June 2002 sought more time to assess Mr Ferguson. Dr Majeed reported further to the Court on 4 July 2002. In that report the psychiatrist noted material indicating Mr Ferguson had suffered from post traumatic stress disorder after an earlier incident of sexual abuse but considered he did not suffer any other mental illness. Dr Majeed considered Mr Ferguson was not suffering from intellectual disability of a level or degree which would interfere with his ability to enter a plea, instruct counsel or follow the court process.
[6] On 1 August 2002 at the request of Mr Ferguson’s counsel Dr Russell Wilson, a clinical psychologist conducted an intellectual assessment of Mr Ferguson. He concluded in a report dated 25 November 2002 that Mr Ferguson had IQ scores in the “mildly” intellectually impaired range.
[7] Prior to Dr Wilson’s report being finalised, on 1 October 2002 Judge McAloon made a compulsory in-patient treatment order by consent under the Mental Health (Compulsory Assessment and Treatment) Act 1992. The element of risk identified was an attempt at serious self-harm. The Judge said that in terms of the Act Mr Ferguson suffered from a mood disorder. Dr Majeed was involved in this application and was present at the hearing in the District Court. He subsequently provided a further report for the High Court on sentence.

Submissions

[8] Mr Tennet, on behalf of Mr Ferguson, argues that issues of fair trial arise because Mr Ferguson’s fitness to stand trial was not re-assessed closer to the trial, ie after his committal and/or in the course of the trial during which the committal remained operative. Leave is sought to admit evidence from Dr Olive Webb, a psychologist, in relation to Mr Ferguson’s intellectual ability and two other affidavits on another prospective appeal point relating to the composition of the jury.
[9] For the Crown, Mr Chisnall says the delay in bringing this application is not explained and that, in itself, tells against an extension of time. In addition, Mr Chisnall submits that the prospective appeal has no merit. Mr Chisnall emphasises that the committal decision was based on Mr Ferguson’s recurring major depression. He also notes Dr Majeed observed that Mr Ferguson’s thought processes were normal. The Crown opposes the application for leave to admit further evidence.

Discussion

[10] The principles applicable to the decision whether to grant an extension of time are set out in R v Knight [1998] 1 NZLR 583 at 587 (CA). Those principles were endorsed in R v Lee [2006] 3 NZLR 42 at [96] (CA) where Glazebrook J observed that the “overall standard” was that of the interests of justice requiring a balancing of the relevant factors. The relevant factors include:

[99] ... the wider interests of society in the finality of decisions, the strength of the proposed appeal, whether the liberty of the subject is involved, the practical utility of any remedy sought, the extent of the impact on others affected and on the administration of justice, and any prejudice to the Crown.

[11] Against the background outlined above, we consider this is a case where Mr Ferguson’s individual interests outweigh the wider interests in finality. On the material before the Court, it is not clear exactly what consideration was given to Mr Ferguson’s fitness to stand trial after his committal. Some difficulties in that respect arise because Mr Ferguson was represented at trial by the late Kevin Ryan QC and it has not yet been possible to obtain an affidavit from junior defence counsel. It may be necessary, for the appeal, to obtain a report from the trial Judge on some of the issues including what, if anything, was known about the compulsory treatment order. Given the seriousness of the charge Mr Ferguson was facing, in the unusual combination of circumstances in this case, we consider an extension of time should be granted.
[12] Given our decision, we do not deal with Mr Tennet’s application to admit new evidence; that should be dealt with on the hearing of the appeal. Counsel are to confer on timetabling and on any further evidence. If necessary, a teleconference can be sought to deal with any issues arising.
[13] The Registrar is to set the appeal down for hearing.

Solicitors:
Crown Law Office, Wellington