SR v R [2011] NZCA 409; [2011] 3 NZLR 638 (25 August 2011)

	Home \| Databases \| WorldLII \| Search \| Feedback Court of Appeal of New Zealand

ORDER PROHIBITING PUBLICATION OF THE JUDGMENT AND ANY PART OF THE PROCEEDINGS (INCLUDING THE RESULT) IN NEWS MEDIA OR ON THE INTERNET OR OTHER PUBLICLY AVAILABLE DATABASE UNTIL FINAL DISPOSITION OF TRIAL. PUBLICATION IN LAW REPORT OR LAW DIGEST PERMITTED.

Court: Randerson, Potter and Ronald Young JJ Counsel: T Ellis and G Edgeler for Appellant

D Order prohibiting publication of the judgment and any part of the proceedings (including the result) in news media or on the internet or other publicly available database until final disposition of trial.

	Para No
Introduction	[1]
The appeal against the Hamilton convictions	[7]
The factual background	[7]
The appellant’s submissions in relation to the Hamilton convictions	[28]
Hamilton convictions – discussion	[35]
Was there a real risk the appellant might not have been fit to stand trial in respect of the Hamilton charges?	[61]
Nullity/Miscarriage	[66]
Application for extension of time to appeal	[68]
The appeal against the High Court ruling on s 9 of the CPMIP and the associated ruling on propensity evidence	[78]
First preliminary issue - jurisdiction	[78]
Second preliminary issue – capacity to instruct counsel	[93]
The Judge’s findings	[96]
Factual background	[100]
The propensity evidence ruling	[108]
The grounds of appeal advanced in relation to the propensity evidence issue	[117]
The s 9 ruling	[138]
The grounds of appeal in relation to the s 14 ruling	[144]
The Judge’s findings	[146]
The Judge’s conclusions on the s 14 issue	[161]
Our own review of the evidence	[164]
Generic issues	[192]
_{Conclusion and disposition}	[193]

[1] The appellant is facing trial in the High Court in Wellington on two counts of arson. It is alleged that he lit fires at Wellington College on 12 and 14 December

[2] The appellant has raised issues about his fitness for trial. Dobson J ruled under s 9 of the Criminal Procedure (Mentally Impaired Persons) Act 2003 (the CPMIP) that, on the balance of probabilities, the evidence was sufficient to establish that the appellant lit the fires.¹The Judge also later ruled under s 14 of the CPMIP that the appellant is not mentally impaired and is fit to stand trial.²

[3] The Crown sought to introduce as propensity evidence at the appellant‘s trial two previous convictions for arson committed by him at school premises in the Hamilton area in 2004. Dobson J ruled that the evidence of the previous convictions was admissible at trial.³

(a) CA783/2010: an appeal against the Hamilton convictions with an associated application to extend the time for filing the appeal;

(b) CA838/2010: an application for leave to appeal against the propensity evidence ruling; and

[5] We regard the logical starting point as the appeal against the Hamilton convictions. The sole ground for that appeal is that there were issues about the appellant‘s fitness for trial at that time and that these were not dealt with. It is said that the processes under the CPMIP were triggered by material available to the Court and counsel prior to and during the appellant‘s trial, but the processes under the Act were not undertaken. In consequence, the appellant contends that his trial in Hamilton and the convictions which followed are a nullity. Alternatively it is said that a miscarriage of justice resulted and the Hamilton convictions should be set

[6] Obviously, if the Hamilton convictions are set aside, they could not be used as propensity evidence in respect of the current allegations. It is common ground that the absence of that evidence would weaken the Crown‘s case in relation to the current charges to the point where an application for a discharge under s 347 of the Crimes Act 1961 could well succeed.

[7] The appellant was originally facing three charges of arson at his Hamilton trial. The first was an allegation that he had set fire to the Te Rapa Police Station on

21 May 2001. After a jury trial before Judge Denise Clark, concluding on 15 March

2005, he was found not guilty on that count, but guilty on two other counts. The first related to the lighting of a fire at Cambridge High School on 16 March 2004 and the second to a fire at Forest Lake Primary School on 20 May 2004.

[8] At the conclusion of his trial, Judge Clark remanded the appellant to the Henry Bennett Centre in Hamilton for a report under s 35(1) and (4) of the CPMIP. A report under s 35(1) is obligatory when a court proposes to make an order under s 34(1) of the Act. That section enables the court to impose a range of alternative sentences and to make orders which we discuss further below. When a report is obtained under s 35, subs (4) provides that a person who has an intellectual disability must, during the period in which the inquiries are made under subs (1), be assessed under Part 3 of the Intellectual Disability (Compulsory Care and Rehabilitation) Act

(1) If the court is satisfied of the matters specified in subsection (2), the court may deal with an offender who is convicted of an imprisonable offence—

(a) by sentencing the offender to a term of imprisonment and also ordering that the offender—

(2) For the purposes of subsection (1), the court must be satisfied, on the evidence of 1 or more health assessors, that the offender's mental impairment requires the compulsory treatment or compulsory care of the offender either in the offender's interest, or for the safety of the public or for the safety of a person or class of person.

(3) Before the court makes an order under subsection (1)(a)(i) or (b)(i), the court must be satisfied on the evidence of 1 or more health assessors (at least 1 of whom must be a psychiatrist) that the defendant is mentally disordered.

(4) Before the court makes an order under subsection (1)(a)(ii) or (b)(ii), the court must be satisfied on the evidence of 1 or more health assessors that the defendant—

(5) No order may be made under this section in respect of an offender who is, at the time of the conviction, subject to a sentence of imprisonment.

[10] We note that if orders are to be made under any of the alternatives in s 34(1), the court must have evidence from at least one health assessor that the offender‘s mental impairment requires the compulsory treatment or compulsory care of the offender either in the offender‘s interest or for the safety of the public or for the safety of a person or class of persons. A health assessor is defined as meaning a

practising psychiatrist who is a registered medical practitioner, a medical psychologist or a specialist assessor under the Intellectual Disability Act.⁴

[11] The Court received a report for sentencing purposes from a clinical psychologist, Dr Stephen Haines, dated 3 May 2005. Dr Haines‘ report was extensive but contained the following summary with regard to the appellant‘s eligibility under the Intellectual Disability Act:

[The appellant‘s] global intellectual functioning on the WAIS-R, the closest measure of his abilities at age 18 years classifies him in the Extremely Low to Borderline range. The chances are 95 out of 100 that his true Full Scale IQ falls within the range 68 to 80. This is consistent with his performance on other psychometrics administered at the time and within the bonds (sic) of error of recently administered tests.

According to his history, [the appellant‘s] significantly sub-average intellectual functioning would seem to have a genesis in the developmental period prior to age 18 years.

[The appellant] was considered at age 17 years to have shown significant adaptive functioning deficits across four skill areas important for an adult‘s functioning in home and community living. Current assessment indicates similar significant deficits across six skill areas of adaptive function.

As such it is my opinion that on balance of probabilities, [the appellant] meets the DSM-IV criteria for a diagnosis of Mild Mental Retardation and thus his intelligence functioning is indicative of intellectual disability as defined in section 7 of the IDCCR Act (2003).

[12] Dr Haines‘ assessment that the appellant met the DSM-IV criteria for a diagnosis of Mild Mental Retardation and that his intelligence functioning was indicative of intellectual disability under s 7 of the Intellectual Disability Act must be understood in the light of the s 7 definition. That section provides:

(1) A person has an intellectual disability if the person has a permanent impairment that—

(b) results in significant deficits in adaptive functioning, as measured by tests generally used by clinicians, in at least 2 of the skills listed in subsection (4); and

(2) Wherever practicable, a person's general intelligence must be assessed by applying standard psychometric tests generally used by clinicians.

(3) For the purposes of subsection (1)(a), an assessment of a person's general intelligence is indicative of significantly sub-average general intelligence if it results in an intelligence quotient that is expressed—

(5) For the purposes of subsection (1)(c), the developmental period of a person generally finishes when the person turns 18 years.

[13] Section 8 of the Intellectual Disability Act makes it clear that a person does not have an intellectual disability simply because the person has a mental disorder, a personality disorder, an acquired brain injury, or does not feel shame or remorse about the harm caused to others.⁵Section 8 goes on to clarify that if a person does not have an intellectual disability as defined, the provisions of the Intellectual Disability Act as to compulsory care cannot apply to that person whether or not he or she has any other disability.⁶

[14] Dr Haines noted that the appellant‘s destabilising factors included paranoid personality traits, possible trauma-related symptomatology, boredom, social isolation, events that stress his ability to influence his environment, poor affect

_{regulation ability, poor distress tolerance ability, and behavioural
drift. He was of}

⁵_{Intellectual Disability (Compulsory Care and
Rehabilitation) Act 2003, s 8(1).}

⁶Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003, s 8(2).

the opinion that the appellant would be best managed in Community Secure Care and that the appellant should be designated a ―care recipient‖ under the Intellectual Disability Act. He recommended further assessment by a clinical psychologist and programmes specifically targeted at his offending.

[15] The report prepared by Dr Haines referred to an assessment made after the appellant‘s arrest on the Hamilton charges by a registered psychologist, Dr Olive Webb. This assessment, dated 4 August 2004, was prepared by Dr Webb at the request of Ms Michel Ennis, the Care Co-ordinator for an organisation known as Disability Support Link. The assessment was made for the purpose of determining the appellant‘s eligibility for intellectual disability services. Dr Webb‘s assessment was that the appellant scored verbal performance and full-scale IQ‘s in the borderline range when intellectually assessed with the psychometric test known as WAIS-III; his picture completion sub-test score was higher; while his Working Memory Index Score was well within the range of intellectual disability. He had a reading age of about five years and his verbal recognition skills were assessed as being at the four and a half year old level, in the intellectual disability range. Other testing showed that he was significantly below his peers in all areas of adaptive functioning. His daily living skills were at a level that might be expected of an eight to eight and a half year old. His overall communication and daily living skills were assessed as being average compared with comparable groups with intellectual disability.

[16] Dr Webb recommended that her assessment be made available to the appellant‘s counsel but there is no evidence that counsel or the sentencing Judge received it. Dr Webb‘s assessment was, however, made available for consideration by Dobson J in relation to the current offending.

[17] The assessments made by Dr Haines and Dr Webb contrasted sharply with comments made by the appellant‘s Care Manager and his Care Co-ordinator Ms Ennis in the Individual Care and Rehabilitation Plan prepared as part of Dr Haines‘ report. They reported that the appellant had no difficulty communicating his wishes and needs. He understood clearly what was asked or said to him and, if unsure, would question what he was being asked. The Care Manager and Care Co- ordinator added that the appellant could process basic information so long as it was

kept simple and clear. He was able to read and write at a basic level and if he could not understand a detailed document, he would ask for assistance.

[18] At this time, the appellant was aged 27 years and was receiving assistance from a community trust known as the Community Living Trust. According to Dr Haines‘ report, he had been placed initially with several families for short periods but later began living alone with some support for day to day living. It was reported that he had obtained a driver‘s licence and owned his own car.

[19] At the time of the appellant‘s sentencing on 5 May 2005,⁷Judge Clark also had before her a pre-sentence report in which it was recorded that the appellant had admitted lighting both fires. It was noted that the appellant suffered from congenital dwarfism. The report writer assessed the appellant as having a high risk of reoffending. It was considered that the offending had occurred against a background of a poor self-image (on account of his size) and a sense of misplaced revenge. It was recommended that he be imprisoned or, alternatively, held in a secure therapeutic environment.

[20] In sentencing the appellant, Judge Clark said the fires at the two schools had been set alight in very similar ways, without the use of ―more usual accelerants‖, but through newspapers being placed under the building. She was satisfied that, on the basis of Dr Haines‘ report, the appellant should be dealt with under s 34 of the CPMIP. She imposed a term of imprisonment of two and a half years but ordered, under s 34(1)(b), that the appellant be detained in a secure facility as a special care patient under the Intellectual Disability Act. Given the nature of the order made, which involved both a term of imprisonment and an order that the sentence be served in secure care under the Intellectual Disability Act, the order should have been made under s 34(1)(a) of the CPMIP as the Judge later recognised. However, as we shortly relate, other jurisdictional difficulties later came to light.

appellant‘s intellectual functioning. In a letter dated 25 May 2005 to Ms Ennis,

In the IDCCR Special Assessment: Eligibility Report, prepared for [the appellant] dated 1/5/2005, I offered a clinical opinion on balance of evidence at the time, that [the appellant] could be considered to have an intellectual disability under the IDCCR Act (2003).

In the first instance, psychometric assessments showed that [the appellant‘s] intellectual functioning is most likely to fall in the Borderline Intellectual Functioning range. Although on common clinical practice, given significant reported adaptive deficits, [the appellant] could be considered to have an intellectual disability, he would, on review not meet the criteria available under the IDCCR Act.

Moreover, recent discussion (9/5/2005) with Dr Jane O‘Dwyer, Consultant Psychiatrist, Henry Bennett Centre, Hamilton, suggests reason to reconsider the extent and nature of SR‘s adaptive deficits. Dr O‘Dwyer considers [the appellant] to have an Antisocial Personality Disorder, and from ongoing observation on the ward, that this dysfunction is likely to underlie much of his reported adaptive deficits. Within the structured environment of the ward, it seems [the appellant] has shown few skill deficits, is described as able to function as independently as other non-intellectually disabled clients, shows appropriate social and communication skills, is able to manage his own finances, and to maintain his own safety with acutely psychotic clients. [The appellant‘s] adaptive function would thus require reassessment to determine the relative influence of personality dysfunction (for example, the extent to which his reported deficits is (sic) Community Use represent skill deficits or antisocial behaviour).

In summary, the relative influence of [the appellant‘s] personality on his adaptive behaviour requires further assessment to clarify the extent of his adaptive skill deficits and hence their prominence in considering his intellectual disability and rehabilitation needs. However, on review, [the appellant‘s] intellectual functioning also places him above the criteria available for intellectual disability under Section 7 of the IDCCR Act 2003.

[22] In short, Dr Haines now considered the appellant did not meet the criteria for intellectual disability under the Intellectual Disability Act and that his adaptive behaviour required further assessment to clarify the extent of his adaptive skill deficits and their relationship to the consideration of his intellectual disability and rehabilitation needs. He had reached that view in part after discussion with Dr Jane O‘Dwyer, a consultant psychiatrist at the Henry Bennett Centre. She was reported by Dr Haines to consider that the appellant had an anti-social personality disorder and that this was likely to underlie much of his reported adaptive deficits. As had been earlier noted by the Care Co-ordinator, Dr Haines reported that the appellant had shown few skill deficits and was described as being able to function as

independently as other non-intellectually disabled clients and showed appropriate social and communication skills.

[23] Dr Haines‘ letter was provided to the Crown. In the meantime, it was realised there were jurisdictional problems with the sentence passed by the Judge. The Crown applied under s 372 of the Crimes Act 1961 for correction of an erroneous sentence. Under that provision, if the judge considers that the sentence is one that by law could not be passed, the judge may pass such sentence as ought to have been passed.

[24] It transpired that, by virtue of the transitional provisions of the CPMIP,⁸s 34(1)(a) of the CPMIP did not apply to an offence committed before the commencement of the Act. Since the offences for which the appellant had been convicted had occurred before the Act came into force on 1 September 2004, the Judge had no jurisdiction to pass the sentence or make orders under s 34(1)(a).

[25] Judge Clark issued a reserved judgment on 3 August 2005⁹in which she accepted there had been no jurisdiction under s 34(1) of the CPMIP to impose a sentence of two years imprisonment and to order that the appellant be detained in a secure facility as a special care recipient under the Intellectual Disability Act. She accepted a submission made on behalf of the appellant‘s then counsel, Mr T Sutcliffe, that she should instead order under s 34(1)(b)(ii) of the CPMIP that the appellant be cared for as a care recipient under the Intellectual Disability Act. She directed that he be detained in a secure facility and that the term of the order be two and a half years under s 37 of the CPMIP.

[26] The Crown had placed before the Court an affidavit by Ms Ennis in which she produced the letter Dr Haines had written to her on 25 May 2005 retracting his earlier opinion that the appellant met the criteria for intellectual disability. She added that before Dr Haines had produced his first report, he had expressed to her varying views about whether the appellant met the criteria for intellectual disability.

_{She sought advice from the Ministry of Health but there was no time to
obtain a}

[27] Judge Clark accepted a submission made by the appellant‘s counsel that she should not take into account the affidavit from Ms Ennis or Dr Haines‘ advice about his change of mind on the intellectual disability issue. She accepted counsel‘s submission that her ability to take into account changes of circumstances on an application under s 372 of the Crimes Act was limited. She considered Ms Ennis‘s affidavit was effectively fresh evidence, more properly considered in another forum where matters could be more fully canvassed. It is not necessary for us to express any view on the appropriateness of Judge Clark‘s approach on this issue.

[28] Mr Edgeler dealt with the argument in relation to the Hamilton convictions. He focussed his submissions on s 14 of the CPMIP rather than s 9. That was appropriate given that the appellant admitted lighting the Hamilton fires both to the probation officer and also later when he was interviewed by the police in relation to the Wellington charges. He made similar admissions when giving evidence before Dobson J.

[29] Mr Edgeler submitted that it must have been clear to the Judge and counsel from an early stage of the criminal process that the appellant had intellectual deficits. Although it might not have been clear whether these deficits were sufficiently severe to warrant a formal diagnosis of intellectual disability, the indications ought to have raised in the minds of those dealing with the appellant that there was an issue about his fitness for trial. Counsel also referred to evidence from a detective who interviewed the appellant who stated that his rights were explained in a ―manner appropriate to him‖ and that when the appellant was presented with a copy of a search warrant he acknowledged that he could ―sort of read‖.

―limited intellect‖ who was residing by himself but who still required supervision on

[31] Mr Edgeler also referred to the evidence of two witnesses called by the Crown to give evidence of conversations with the appellant in which he had expressed interest in fires and how they were lit. These witnesses also gave evidence that they recognised the appellant‘s voice on a tape of a 111 call made to the police in relation to the subject fires as well as comments of an incriminating nature they said the appellant had made. Both of these witnesses had acted as support persons for the appellant in the provision of meals, shopping and taking him for drives. Each had been working for the Community Living Trust, an organisation which assists with the intellectually disabled.

[32] Mr Edgeler submitted that Mr Sutcliffe, as the appellant‘s trial counsel, had recognised the appellant did not have normal intellectual capacity. He pointed to Mr Sutcliffe‘s opening address to the jury in which he stated that the jury would hear about the appellant‘s special needs and his reasons for living a nocturnal lifestyle. Counsel submitted to the jury that the appellant hid away from the world at night because of his ―physical and intellectual disability‖.

[33] These comments were repeated and amplified by defence counsel in his closing address to the jury. He referred again to the appellant‘s obvious physical and intellectual disadvantages; the fact that his living abilities were seriously compromised to the extent that he was being assisted by the caregivers from the Community Living Trust; his paranoia with regard to the police, his unusual answers to questions when giving evidence; and difficulties in processing questions which were too complex. The Judge reiterated defence counsel‘s comments in this respect in her summing up but without adding any observations of her own.

[34] Mr Ellis submitted that, against this background, counsel should have raised the issue of the appellant‘s fitness to stand trial or, if he did not do so, the Judge ought to have embarked upon the statutory process under the CPMIP on her own initiative. Mr Ellis invited us to revisit the decision of this Court in McKay v R¹⁰as to the circumstances in which the statutory procedure under the CPMIP may be

[35] In McKay v R and this Court‘s subsequent decision in R v Te Moni,¹²the statutory process under subpart 1 of Part 2 of the CPMIP was triggered by counsel raising the issue with the Judge. In McKay, the process was not precisely followed while in Te Moni the process, although triggered, was not completed. In McKay, this Court held that no miscarriage had resulted because the process was completed substantially in accordance with the statute. In contrast, in Te Moni, this Court found that the failure to complete the process, once raised, led to a miscarriage of justice. Once started, the process had to be taken through to completion. A new trial was ordered.

[36] In McKay, this Court noted that the CPMIP does not specifically state what is needed to trigger the procedures under subpart 1. Four possible tests as to what constitutes a triggering of the process were discussed. The Court opted for the first stating:

[34] ... that the procedure should be triggered if the accused, his or her counsel, or the Crown raises a question as to the accused‘s fitness to stand trial. In the normal course of events, whenever there is an application or request, the statutory process should thereafter be followed. Rarely, a judge may think that the application is sufficiently lacking in apparent merit that some further enquiry is appropriate before engaging the statutory process. In such cases, the judge must make such enquiries as seem appropriate in the circumstances, always bearing in mind that one should be cautious before refusing to respond to such a request.

[37] After referring to statutory tests adopted in New South Wales and Victoria, and decisions of the New South Wales Court of Criminal Appeal,¹³this Court went on to say:

[39] ... Our Parliament appears to have been content to leave this question to the good sense of trial judges. What Parliament has chosen not to be prescriptive about, we have concluded we should not be prescriptive about either. It is a low standard we have set, which is very dependent on the integrity and good judgement of counsel. ...

[40] We should add that there may be rare cases where the procedure should be triggered even in the absence of an application by counsel. The judge himself or herself may consider that the accused‘s conduct either

during the course of the alleged offending or during the court proceeding itself has been or is so bizarre as to raise a concern as to the accused‘s fitness to stand trial. If the judge has such concerns and if the accused is represented by counsel, the judge should discuss his or her concern with counsel. Where the accused is acting for himself or herself, the judge will need to make a call. Sometimes, the process may need to be initiated even over the wishes of the accused if the judge considers there is real doubt as to the accused‘s fitness to stand trial. Fair trial considerations would override the rights of an accused in that circumstance.

[38] Counsel submitted that best practice on the part of counsel is to be found in Article 9(3) of the International Criminal Court Code of Professional Conduct for Counsel:

3. Where a client‘s ability to make decisions concerning representation is impaired because of mental disability or for any other reason, counsel shall inform the Registrar and the relevant Chamber. Counsel shall also take the steps necessary to ensure proper legal representation of the client according to the Statute and the Rules of Procedure and Evidence.

[39] In oral submissions, counsel submitted there was an obligation on the part of the judge to commence the statutory process under the CPMIP if counsel informs the judge that the defendant is mentally impaired, intellectually disabled, suffering from a mental illness, unfit for trial, or if counsel asks for a report under s 38 of the CPMIP.

[40] The difficulty in any of the formulations suggested by counsel is that they all presuppose the accused has one or more of the identified conditions. A further problem is that the expression ―mental impairment‖ is not defined in the CPMIP and may not be capable of precise definition. Plainly, it must be referable to a mental state or condition which impairs fitness to stand trial as we discuss further below. Fitness is negatively defined in s 4(1) of the CPMIP:

(a) means a defendant who is unable, due to mental impairment, to conduct a defence or to instruct counsel to do so; and

(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.

[41] Where a question is raised as to fitness to stand trial by the accused, his or her counsel, or by the prosecutor, the position is more straightforward. The presiding judge would ordinarily then follow the statutory process, relying on the good sense and experience of counsel as well as his or her own experience and judgement. Even so, as was said in McKay, a judge might consider it appropriate in some circumstances to make further inquiry before the statutory process is commenced.

[42] We also agree with the observations in McKay to the effect that the statutory procedure may be triggered in rare cases even in the absence of the issue being specifically raised. It might be necessary for the Judge to initiate the process under the CPMIP even against the wishes of counsel or an accused where necessary in the interests of securing the ultimate entitlement of the accused to a fair trial. We can envisage circumstances where, for example, a family member or friend familiar with the accused, or perhaps a prison officer, forensic nurse or other responsible person, might raise an issue about an accused‘s fitness to stand trial. Or, as this Court suggested in McKay, the process may need to be triggered where the nature of the offending or the accused‘s behaviour is so out of the ordinary as to raise real doubt as to his or her fitness for trial.

[43] In the absence of an issue being raised in the usual way as described in [41], the threshold at which the process should be initiated should not be set so low that needless time and resource is spent considering fitness to stand trial when it is not genuinely in issue. But neither should the threshold be set so high that accused persons who may not be fit for trial are nevertheless tried and convicted. That could breach the fundamental right to a fair trial.

[44] We are conscious of the need not to lay down a prescriptive test to apply in circumstances where no issue of fitness is raised in the usual way since the circumstances are likely to vary infinitely. But we consider that a judge ought to initiate the statutory process under the CPMIP where there are reasonable grounds to believe that an accused may be unfit for trial. As this Court said in McKay, the circumstances where a judge may have to act on his or her own initiative in this

respect are likely to be relatively rare. In general, a judge is entitled to rely on the good judgement of counsel but the ultimate duty of the judge to ensure a fair trial may require the judge to act even in the absence of counsel raising the issue.

[45] In the recent decision of the English Court of Appeal in R v Walls¹⁴the Court adopted the following passage from the judgment of the Lord Chief Justice in R v Erskine¹⁵as to the duty of the trial judge:

Assuming that the defendant is legally represented (and in cases like these, he will normally be represented by leading and junior counsel, as well as solicitors) his legal representatives are best placed to decide whether to raise the issue of fitness to plead, and indeed to seek medical assistance to resolve the problem. There is a separate and distinct judicial responsibility to oversee the process so that if there is any question of the defendant‘s fitness to plead, the judge can raise it directly with his legal advisers.

[46] We refer in more detail to the facts of this case later when discussing our conclusions in relation to the present case.

[47] In considering whether the statutory process ought to have been initiated in the present case, it is necessary to have regard to all the circumstances known to counsel and the court at the time of trial.

[48] There can be no doubt that Mr Sutcliffe was aware as trial counsel that the appellant had some intellectual deficits since he urged the jury to take this into account when assessing the appellant‘s evidence at trial. However, in using the expression ―intellectual disability‖ we are satisfied that Mr Sutcliffe was not using this expression in the sense defined by the Intellectual Disability Act. Rather, he was urging the jury to take the appellant‘s deficits into account when considering his evidence and assessing his credibility. Mr Sutcliffe is an experienced and capable trial counsel who, we are satisfied, would have raised the issue of fitness for trial if he had any real doubts on that score.

remarks to the jury, the Judge would have been aware that the appellant‘s intellectual

evidence that the appellant was being assisted in the community by the witnesses who gave evidence for the Crown. But we are satisfied there were no circumstances calling for the Judge to intervene on her own initiative.

[50] The evidence at trial is relevant. Our own assessment of the transcript of the evidence the appellant gave is that, in general, he appears to have understood the questions put to him without undue difficulty and responded appropriately in both his evidence in chief and in the lengthy cross-examination to which he was subjected by the Crown prosecutor. He had difficulty in responding only on one or two isolated occasions when he asked for clarification of the questions. He did not have any difficulty, for example, in understanding what expressions such as ―suspicious behaviour‖ and ―accelerants‖ meant.

[51] We also consider it is appropriate to take into account the observations of the appellant‘s Care Manager and Care Co-ordinator as already discussed.¹⁶They had the opportunity to consider the appellant‘s level of understanding and communication skills soon after his conviction when he was remanded to the Henry Bennett Centre for assessment. Their views on this were forthright and support the conclusion that those dealing with the appellant at the time would not have had any basis to conclude that there was any serious doubt about the appellant‘s abilities relative to fitness for trial.

[52] Their evidence provides a proper foundation to conclude that Mr Sutcliffe would likely have formed the same view of the appellant‘s abilities. That is consistent with our own assessment based on the trial transcript.

[53] In addressing the evidence as to whether the CPMIP process ought to have been initiated, we accept the submission made by Ms Edwards for the Crown that it would have been helpful if the appellant had waived privilege so that Mr Sutcliffe could have been asked to place before the Court evidence of his observations of the appellant‘s cognitive skills, his level of understanding of the court processes and his

[54] As matters stand, we have no evidence either from Mr Sutcliffe or the appellant suggesting there were any difficulties in this respect. No challenge was made to the appellant‘s Hamilton convictions until after his arrest for the current offending over four years later.

[55] The judgment of the English Court of Appeal in R v Walls has already been mentioned. It is very relevant to the present case since the issue of the appellant Mr Walls‘ fitness to stand trial was raised only upon his appeal against conviction for sexual assault on a child. At the outset of the trial, the trial judge asked the appellant‘s counsel if he had obtained a psychological profile of him. Counsel said no such profile had been obtained and the Judge took the matter no further. However, after the jury‘s verdict, the Judge made some observations about the failure by defence counsel to obtain the profile. Counsel‘s response was that, although the appellant had some learning difficulties, there had never been any issue of his fitness to plead. It transpired, when a pre-sentence report was obtained, that the appellant had an IQ between 63 and 71 which the court described as being at the extremely low to borderline range of intelligence.

[56] On appeal, fresh evidence was introduced from two psychiatrists. Both concluded that the appellant was unfit to plead or to stand trial at the time of his trial and at the time of their later examination of him. The Court of Appeal rejected the evidence of one of the psychiatrists as unreliable but considered carefully the evidence of the other psychiatrist, applying what was described as the classic test for

fitness to plead in the United Kingdom.¹⁷Despite the evidence of the remaining

psychiatrist, the Court of Appeal found that the appellant was not unfit to plead.

[57] The evidence the Court relied upon included the detailed and clear account the appellant gave to the police at interview; no-one had considered it appropriate to raise any issue about the appellant‘s fitness to plead; the ―very conscientious‖ trial judge did not consider it necessary to address the issue of fitness to plead; neither Crown counsel at trial nor the Crown Prosecution Service considered that anything

_{arose during the trial suggesting the appellant was unfit to plead;
no-one raised the}

¹⁷As enunciated by Alderson B in R v Pritchard (1836) 7 CP 303; later reaffirmed in R v Padola

question of the trial court appointing an intermediary in the exercise of the court‘s powers;¹⁸there had been no waiver of privilege so the court could examine what was set out in the appellant‘s instructions; and the absence of evidence from the appellant‘s trial counsel as to his view of the appellant‘s fitness to plead.

[58] In Walls, the Court adopted¹⁹the following observations made by the Lord Chief Justice in R v Erskine as to attempts, post-trial, to raise fitness issues for the first time:²⁰

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.

[59] Although there are material differences in the relevant United Kingdom legislation,²¹the Walls decision has strong factual parallels to the present case. Many of the features relied upon by the Court of Appeal apply equally here. There may be rare cases where questions of fitness for trial may be successfully raised post-trial for the first time, but there are likely to be significant evidential difficulties in doing so, particularly after long delay as occurred in the present case.

[60] For the reasons already given, we are not persuaded that the process under subpart 1 of Part 2 the CPMIP ought to have been initiated on the basis of the evidence and circumstances known to counsel and the Judge prior to the appellant‘s convictions for the Hamilton offending. That finding is sufficient to dispose of the appeal against the Hamilton convictions but we nevertheless go on to consider whether, in the light of the available expert evidence, there is anything to suggest there was a real risk that the appellant might not have been fit to stand trial in respect

Was there a real risk the appellant might not have been fit to stand trial in respect of the Hamilton charges?

[61] In considering this question, we are entitled to take into account the evidence available at the time of sentencing as well as the much more extensive evidence available to Dobson J in the recent High Court hearings in relation to the current charges faced by the appellant. That evidence, as we later relate, canvassed the appellant‘s history and relevant reports over an extensive period both before and after the Hamilton convictions.

[62] Although in his initial report of 3 May 2005 Dr Haines found that the appellant met the definition of intellectual disability in s 7 of the Intellectual Disability Act, only a few weeks later he reached the opposite conclusion after making further inquiries and seeking the views of Dr O‘Dwyer. It was Dr Haines‘ revised view not only that the appellant‘s intellectual functioning was not such as to meet the criteria for intellectual disability but also that Dr O‘Dwyer‘s diagnosis that the appellant had an anti-social personality disorder was likely to underlie much of his reported adaptive deficits. At least within the Henry Bennett Centre, the appellant had shown few skill deficits and was described as functioning as independently as other non-intellectually disabled clients. He also showed appropriate social and communication skills.

[63] When Dr Haines‘ revised opinion is considered in light of the other evidence available at the time of trial, it does not support the conclusion the appellant was unfit for trial or that there was any real cause for concern that he might have been unfit. Our conclusion in that respect is supported by the much more substantial body of evidence before Dobson J which we will consider later in this judgment.

[64] Mr Ellis also submitted that, even if the appellant was fit to stand trial, special assistance should have been provided to him to enable him to participate effectively in his trial. It was submitted that this was an aspect of the appellant‘s right to a fair trial. Reliance was placed on the observations made in R (C) v

Sevenoaks Youth Court²²(noted also in Walls²³) and observations made by the United

[65] We can deal with this point briefly on the basis that there is no evidential foundation for this submission. If it had been intended seriously to advance this submission, it would have been necessary for evidence to be adduced as to whether there was any need for special assistance. There is none.

[66] We asked counsel for further submissions as to the effect of any finding that the process under subpart 1 of Part 2 of the CPMIP ought to have been initiated. Would the consequences have been that the trial was a nullity or would the failure have potentially given rise to a miscarriage of justice? Counsel have provided submissions on this point as requested for which we are grateful. However, in view of our factual findings, we have decided it is not appropriate for us to address this issue.

[67] The point was left open by this Court in R v McKay and, since our request for further submissions, we note that the Supreme Court has granted leave to appeal against the decision of this Court in Down v R.²⁵That decision includes consideration of whether the prosecuting authority‘s omission to obtain the leave of a District Court Judge or Registrar to lay an information meant that no jurisdiction was conferred or was an irregularity so fundamental it should result in the proceedings

being treated as a nullity. In our view, it is preferable for this issue to be addressed in a case where the issue clearly arises and in the light of any guidance the Supreme Court provides.

22 November 2010. This was some five years and eight months after his convictions on 15 March 2005 and five years and three months after the orders made under

²⁴_{Law Commission Unfitness to Plead (Consultation
Paper No 197 2010) at [2.102]–[2.104].}

s 34(1)(b)(ii) of the CPMIP. In terms of s 388 of the Crimes Act 1961, the appeal against conviction ought to have been brought (at the latest) within 28 days after the amended orders made by Judge Clarke on 3 August 2005.

[69] The notice of appeal did not advance any reasons for the delay of more than five years in filing the appeal. The submissions originally filed on behalf of the appellant in support of the appeal against conviction noted that the delay was readily understandable given the appellant‘s intellectual deficits and difficulties with reading. It was also submitted that, given the trial resulted in his detention in intellectual disability care, he did not have any reason to appeal. No affidavit was filed by or on behalf of the appellant explaining the reasons for the delay.

[70] After the hearing of the appeal, we issued a Minute requesting the appellant to file an affidavit in support of his application for extension of time. No affidavit was filed in response to this direction. Instead, his counsel raised a number of reasons why no such affidavit needed to be filed.

[71] First, it was submitted that the Court of Appeal (Criminal) Rules 2001 make no express provision for any such affidavit. Rule 11 provides that an appellant may include an application for an extension of time to appeal by completing the relevant part of the notice of appeal and r 12 provides that a notice of appeal in the relevant form that is given out of time must be treated as if it contained an application for an extension of time. Neither rule refers to any supporting affidavit.

[72] However, the long-standing practice of this Court is that an appellant usually files an affidavit explaining the delay, particularly where the delay is extensive as it is in this case. The absence of any supporting evidence is a factor the Court takes into account in deciding whether an extension should be granted.

[73] The next point raised by counsel is that no time limit could apply to overturn the convictions if the Hamilton trial was a nullity. In view of our findings, this submission is not available to the appellant.

[74] Next, it was submitted that time did not run (especially where an appellant has intellectual deficits) until a judge formally tells a person that they have a right of appeal. This argument is untenable. No New Zealand authority is cited and, in any

event, s 388 of the Crimes Act is explicit in identifying the time limit as running from the date of conviction or later sentence.

[75] Finally, it was submitted that there was no ―sentence‖ and therefore time did not begin to run. This argument is also untenable in the light of s 379 of the Crimes Act which defines ―sentence‖ for the purpose of appeal as including any order of the Court made on conviction.

[76] As this Court has recently reiterated, an extension of time will be granted when it is in the interests of justice in a particular case.²⁶Factors of relevance to the overall balancing test approach set out in R v Knight²⁷and endorsed in R v Lee²⁸include 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 any others affected and on the administration of justice, and any prejudice to the Crown.

[77] Here, the length of the delay is very substantial; the delay is not explained in any way; and, most importantly, our findings are such that the appeal does not have any merit. In the circumstances, we decline leave to extend time to appeal against the Hamilton convictions.

The appeal against the High Court ruling on s 9 of the CPMIP and the associated ruling on propensity evidence

[78] Mr Ellis raised a preliminary issue about the jurisdiction of the High Court to consider the issue of fitness for trial. He submitted that the process under subpart 1 of Part 2 of the CPMIP had commenced in the District Court and should have been concluded in that Court. This issue was raised with Dobson J in the High Court but not ruled upon because counsel wished to have the fitness issue resolved and accordingly agreed to proceed in the High Court. To that extent, the submission made has a distinctly academic character. Nevertheless, we deal with it since it may

[79] On 14 December 2009, Judge Broadmore made an order in the District Court under s 38 of the CPMIP for the preparation of an assessment report as to the appellant‘s fitness to stand trial. A consultant psychiatrist, Dr Justin Barry-Walsh, provided a report to the District Court dated 29 December 2009. It appears that no formal steps were taken thereafter to deal with the report before the appellant was committed to the High Court on 22 February 2010 under the standard committal procedure.

[80] Thereafter, further reports ordered by the High Court under s 38 were provided by Dr Barry-Walsh and by a Ms Louisa Medlicott, a registered clinical psychologist who is also a specialist assessor under the Intellectual Disability Act. In addition, the appellant obtained reports from Mr Greg Woodcock, a registered clinical psychologist. These reports were also placed before Dobson J.

[81] Mr Ellis referred to s 11 of the CPMIP which was introduced with effect from

29 June 2009. That amendment coincided with the changes to the committal procedures in the District Court which were effected by the Summary Proceedings Amendment Act (No 2) 2008 as from 29 June 2009. Section 11 of the CPMIP (as amended) provides:

(2) If the question whether the defendant is unfit to stand trial is to be determined before or without a committal hearing, the Court must hold a special hearing to ascertain whether the Court is satisfied of the matter specified in section 9.

(3) The provisions of Part 5 of the Summary Proceedings Act 1957 that relate to committal hearings, so far as they are applicable and with any necessary modifications, apply to every hearing held under subsection (2).

(4) A hearing held under subsection (2) takes the place of a committal hearing under Part 5 of the Summary Proceedings Act 1957.

(5) If the question whether the defendant is unfit to stand trial is to be determined in the course of a committal hearing, the Court must ascertain whether it is satisfied of the matter specified in section 9.

(6) For the purpose of subsection (5), the Court may (whether on the application of the party or on the Court's own initiative) do either or both of the following:

(a) consider any evidence presented at the committal hearing: (b) hear any new evidence.

(7) A District Court Judge must preside over a Court that conducts a special hearing under subsection (2) or determines whether the defendant is unfit to stand trial in the course of a committal hearing.

[82] In McKay v R, this Court considered whether s 11 applied where a question arose as to fitness to stand trial after committal but before trial. The Court concluded there was jurisdiction to consider fitness to stand trial between committal and trial. It was not necessary to wait until the trial commenced.²⁹But the Court did not consider the issue of jurisdiction where the fitness issue is raised prior to committal.

[83] Mr Ellis submitted that it would be odd if an accused could be committed for trial when he or she might be unfit to stand trial. He submitted that once the process had been commenced (in this case by the ordering of a report under s 38 of the CPMIP) then the process must continue in the District Court. That process could only be undertaken by a District Court judge by virtue of s 11(7) of the CPMIP.

[84] Under the Summary Proceedings Amendment Act (No 2) 2008, a ―committal hearing‖ is defined as meaning a hearing required as a consequence of an oral evidence order under s 180 or 181 of the Act.³⁰In this case, no oral evidence order was sought, so a committal hearing was not required. Instead, committal occurred under the standard committal process. That process does not involve any consideration of the evidence and neither the prosecutor nor the defendant may be present or make oral or written submissions.³¹Under the standard committal process, the court must, without considering any evidence filed by the prosecution, commit the defendant for trial.³²

[85] However, as this Court noted in McKay v R, s 11(1) of the CPMIP is not to be

_{read literally as excluding the application of the section where there
is no ―committal}

hearing‖.³³That is because the remaining provisions of s 11 contemplate the possibility of an issue about fitness for trial being considered at a special hearing before or without a committal hearing. The purpose of a special hearing is to ascertain whether the court is satisfied, under s 9 of the CPMIP, that the evidence is sufficient to establish that the defendant caused the act or omission that forms the basis of the offence charged. If a special hearing is held, then it takes the place of a committal hearing. Alternatively, s 11 contemplates that a question about fitness to stand trial may also be determined in the course of a committal hearing. In that case,

the court must ascertain whether it is satisfied that the matter is as specified in s 9.³⁴

[86] It seems clear that Parliament contemplated that a question about fitness to stand trial (at least so far as it relates to the s 9 issue) could be considered in a committal hearing or in a special hearing convened for the purpose. If a special hearing is convened to consider the s 9 issue, then it takes the place of a committal hearing.

[87] But the question is whether, in a case where the defendant is to be committed for trial in the High Court, the fitness issue must be considered in the District Court when a s 38 report has been ordered but no other steps have been taken in the District Court either before or after a standard committal.

[88] We are satisfied that, in these circumstances, the fitness for trial issue need not be determined in the District Court. Section 11(2) requires a special hearing presided over by a District Court judge only in circumstances where the question of fitness to stand trial is to be determined before or without a committal hearing. It does not oblige the District Court to hold a special hearing where there has been a committal to the High Court under the standard committal process even if a s 38 report has been ordered or received before the standard committal occurs.

[89] That is consistent with s 7 of the CPMIP in terms of which a court may make

a finding on fitness issues ―at any stage after the commencement of the proceedings

_{and until all the evidence is concluded‖. A ―court‖
means any court exercising}

jurisdiction in criminal proceedings.³⁵We note too that s 8 of the CPMIP permits a court to postpone the determination of a fitness question if it thinks it is in the best interests of the defendant to do so (provided that any postponement may not extend beyond the stage at which all the trial evidence is concluded).

[90] While we do not have before us any evidence as to whether a formal postponement was made, we are satisfied this was the effect of what occurred. The appellant could have sought an oral evidence order in which case a committal hearing would have been required. He did not do so, being content instead for the standard committal process to occur. It appears that, although the issue was mentioned to the High Court Judge by the appellant‘s counsel, no objection was taken to the fitness issue being determined in the High Court and it proceeded accordingly.

[91] We do not wish to be taken as deciding that it will never be appropriate in such circumstances to determine the fitness issue in the District Court in cases where there is to be a committal to the High Court for trial. Our interpretation of s 11(2) is that it permits the fitness issue to be determined in the District Court or in the High Court depending on the circumstances. Where the standard committal process occurs, the better course will often be to have the fitness question postponed and determined in the High Court along with any other pre-trial issues which may arise. But there may be cases where the evidence of a lack of fitness for trial is so strong, or where the Crown case is weak, that it may be more appropriate to decide the issue in the District Court.

[92] We also sought further submissions from counsel as to the consequences if we were to find that the committal process should have taken place in the District Court rather than the High Court. In view of our findings, it is unnecessary to consider this issue further.

_{process to determine the fitness issues in the High Court. This
involved conducting}

first a hearing to decide whether the appellant had the capacity to instruct counsel for the purposes of the inquiry under ss 9 and 14 of the CPMIP. The Judge heard from Dr Barry-Walsh and Ms Medlicott and determined in his decision issued on

25 November 2010³⁶that the appellant‘s mental state enabled him adequately to

instruct counsel. The Judge noted specifically that any finding in that respect was not to prejudice the further inquiries to be made, particularly that under s 14 as to fitness to stand trial.

[94] The Judge also accepted, in retrospect, that it was not appropriate to have proceeded as counsel had urged. He concluded that the issue of competence to instruct counsel would, except in cases where there are fundamental obstacles to any dialogue at all with an accused, be more appropriately addressed as an aspect of the

accused person‘s fitness to stand trial. ³⁷As a general proposition, we agree with the

[95] There was no appeal from the conclusion reached by Dobson J about the appellant‘s capacity to instruct counsel but it was agreed that the evidence adduced from the expert witnesses at the hearing in which that issue was determined could be taken into account in relation to the Judge‘s later determination of the s 14 issue.

[96] Dobson J ruled on 25 November 2010 that evidence of the appellant‘s convictions for the Hamilton offending was admissible as propensity evidence in his trial for the current offending. The appellant seeks leave to appeal against that ruling.

[97] In a further ruling on 17 December 2010, Dobson J ruled, in terms of s 9 of the CPMIP, that, on the balance of probabilities, the evidence against the appellant was sufficient to establish that he lit the two fires on 12 and 14 December 2009. There is a right of appeal under s 16 of the CPMIP against a s 9 finding. In terms of s 17(1) of the CPMIP, the court on appeal must quash the finding and direct the

_{appellant be discharged if satisfied the evidence against the appellant
is not sufficient}

to establish the appellant caused the act or omission that forms the basis of the offence in question.

[98] The Judge expressed reservations about determining the admissibility of the propensity evidence before undertaking the s 9 inquiry. However, counsel agreed that, in the circumstances of the case, it was appropriate to resolve the propensity evidence issue given its relevance to the s 9 determination.

[99] We note that the issue of the extent to which it is appropriate to consider questions of admissibility in the context of s 9 hearings has not been definitively determined.³⁸It will usually be necessary to consider obvious issues such as relevance and reliability and, in some cases, it may be appropriate to determine other issues of admissibility.

[100] The following summary of the evidence in relation to the current offending is drawn from the judgment of Dobson J delivered on 17 December 2010:

2009. A security guard patrolling the area discovered smoke coming from underneath a building labelled ACE2. Only minor damage occurred near the

underneath the building. The police located black plastic bags, towelling fabric and cardboard under the building. The towelling was subsequently

[17] The classroom is accessed via Tasman Street in Wellington, again with close proximity to [the appellant‘s] then residential address. It appears that no attempt was made to locate [the appellant] after this fire was discovered.

[18] Then on 14 December 2009 at 4.15am, the same security guard responded to a fire alarm triggered at the ACE2 building. On this occasion, extensive damage was caused. Again, plastic bags and fabric were found. Towelling fabric was found under charcoal and a fire investigator concluded that the most likely cause was that ignition of the fabric had in turn ignited the building.

_{appellant‘s] flat several times, but received no reply. At around
that time he}

³⁸See the discussion in McKay at [48]–[50] and R v Ruka [2011] NZCA 404 at [76]–[77].

was seen entering the building where his flat was located carrying a red bag over his shoulder. At 5am, the Police located [the appellant] as he was returning to his flat. He was described as breathing heavily, and being sweaty, as if he had been exerting himself over a period.

[20] [The appellant] explained that he had been out for a walk. The Police discovered on his person a cigarette lighter and a small torch. He also had dirt on the knees and upper legs of his trousers and was carrying a second pair of shoes in the bag.

[21] [The appellant] was arrested and taken to the Police station. He exercised his right to talk to a lawyer in private. As a result of that, the lawyer he had spoken to advised the Police that [the appellant] did not wish to be interviewed. He was nonetheless interviewed for some 85 minutes. He denied lighting any fires but admitted walking through the grounds earlier in the morning and seeing the orange glow of fire underneath a building. He said that he had been at home all evening on the night of the earlier fire at Wellington High School.

[22] The Police have calculated that the location of all three fires and [the appellant‘s] then residential address are within, at most, 800 metres of each other. Accordingly, both sites of the fires were readily accessible to [the appellant] on foot. He was found to have been out in the very early hours of the morning on which the first and third fires were lit.³⁹

―weak support‖ for the proposition that the dirt on his trousers was the same as the dirt under the building.

[101] The Judge recorded that the likely reason why the police did not make any meaningful inquiries as to the prospect of fires being lit by anyone else was that the appellant was known to the police as an arsonist by reason of the convictions for the Hamilton offending.

[102] It was common ground in the High Court, and before us, that, for the purposes of s 9 of the CPMIP, the only issue was whether it was more likely than not that it was the appellant who lit the fires on 12 and 14 December 2009. It has always been acknowledged by the Crown that its case against the appellant is entirely circumstantial. The Judge set to one side count 1 in the indictment which related to a

_{suspected arson of changing rooms in Nairn Street Park on 9 December
2009. The}

appellant was discharged under s 347 of the Crimes Act in relation to count 1 and it is no longer in issue.

[103] The appellant gave evidence before Dobson J and denied lighting the fires. He acknowledged a degree of mental pressure bearing upon him in the weeks and months prior to the fires and said this led him to a pattern of going for walks in the middle of the night. The Judge found that when the appellant was asked directly whether he had lit the fires, he repeatedly objected that such a question was unfair since, although he did not light the fires, those questioning him would think that he had done so because of his previous convictions for arson.

[104] The Judge concluded the Crown case against the appellant was strongest in relation to count 3 (the fire on 14 December 2009). The appellant had been discovered, shortly after the fire had been lit, with a cigarette lighter, a small torch, dirty trousers and a second pair of shoes. The Judge had earlier noted that parts of the classroom where both the fires were lit were elevated above sloping ground sufficient to allow reasonably easy access. The Judge found the appellant had the opportunity to light the fire and had acknowledged he had been in the vicinity and had seen the fire. The Judge considered this comprised a strong prima facie case on the balance of probabilities. Added to that was the propensity evidence which the Judge had earlier ruled was admissible. The Judge was satisfied that the onus under s 9 had been discharged in respect of count 3.

[105] In addressing count 2 (the fire on 12 December 2009) the Judge considered it appropriate to have regard to the conclusion already reached in respect of count 3. He noted that a pattern of conduct in the current charges did not necessarily have to be established in a chronological sequence going forward. Count 2 related to an attempt to burn the same building, in the same way, just two nights earlier. The Judge noted the appellant had denied going out on the night of the offending on

12 December but observed this might have been influenced by a perception that the police had no evidence he did go out that night. In addition to the pattern of conduct which the Judge saw, he noted that the appellant had the same opportunity on each occasion since his flat was in close proximity to the school where the fires were lit. And, as with count 3, the Judge considered the propensity evidence could also be

brought into consideration. On that basis, the Judge found the Crown had discharged the onus required on the balance of probabilities under s 9 in respect of count 2.

[106] As to the effect of the appellant‘s evidence denying the offending, the Judge noted that his counsel had submitted the Crown had not directly challenged the appellant‘s evidence as untruthful by putting to him directly that, in denying the offending, he was lying. In response to this submission, the Judge found:

[38] I am satisfied from a review of Mr Snape‘s cross-examination that he more than sufficiently put in issue the accuracy of [the appellant‘s] recollection as to his involvement in the lighting of the fires.

[39] To find in the present context that it is more likely than not that [the appellant] lit the fires involves a finding that it is more likely than not that he is not telling the truth in denying lighting those fires. I am satisfied that that finding is justified.

[107] Mr Ellis was critical of the approach taken by the Judge in this respect and we will return to that later in this judgment. However, we next deal with the Judge‘s findings with regard to the propensity evidence.

[108] In his decision of 25 November 2010, Dobson J noted the Crown intended to call evidence of the appellant‘s conviction on the two charges of arson at Hamilton along with evidence from the fire inspection officer as to the circumstances of the fires which gave rise to those charges. Addressing the factors under s 43(3) of the Evidence Act 2006, the Judge noted first that the fact there were convictions in 2005 in respect of fires lit by the appellant at two schools, while not deserving of any mathematical weighting, nevertheless provided greater probative value than a single earlier occurrence.

[109] However, the Judge noted that the gap of some four years between the Hamilton and Wellington offending might be treated as lessening the prospect of a finding of a pattern of repetitive behaviour. In this respect, the appellant had been released from care in Hamilton in July 2006 and had moved to Wellington shortly afterwards.

[110] As to the similarities of the offending in Hamilton and in Wellington, the Crown had submitted that the offending all occurred in the early hours of the morning; the targets were within walking distance of the appellant‘s residence; all of the convictions involved fires lit at school classrooms; and all were lit at various places under the buildings.

[111] The Judge considered a submission made on behalf of the Crown that arson was comparatively unusual in terms of criminal behaviour. He referred to a comment to that effect made by the English Court of Appeal in R v Hanson.⁴⁰The Judge noted that the remarks made in R v Hanson had been adopted in various cases in this Court.⁴¹

[112] These cases identified both arson and child abuse as constituting inherently unusual behaviour. However, Dobson J noted that the observations made in these cases were not supported by empirical evidence and expressed some reservations about conclusions based essentially on intuitive reaction. He concluded, however, that:

[64] ...As a matter of common sense, I acknowledge that arson is happily a relatively rare crime, so that a far smaller percentage of the population are likely to commit such offences in the first place than, say, crimes such as grievous bodily harm. Just as sexual offending by mature males against young females is confined to a very small portion of the population and is therefore ―unusual‖, so is arson.

[65] In the end, that is probably enough for it to be unusual in the sense contemplated by s 43(3)(f). That criterion attributes potential relevance to something that is less than distinctive, but which is likely to be rationally relevant to a comparison of the earlier, established incidents and the current disputed ones.

[75] Reflecting on all these considerations, I am satisfied that the propensity evidence proposed in relation to the two prior convictions for arson would be admissible at a trial of [the appellant], at least in relation to

the two current charges involving arson of school buildings. I do accept that the activity of deliberately lighting fires is inherently unusual, and the similarities of groups of offending (March and May 2004, then November

2009), the prospect of [the appellant] having ready access to the majority of sites on foot, the mode of lighting the fires by going under the classrooms,

buildings targeted in all cases were school classrooms, are cumulatively of sufficient propensity for such evidence to be admissible.

[115] The Judge considered any prejudicial effect of the evidence could be addressed by clear directions given to the jury.

[116] The Judge amplified his reasoning on the propensity issue in his ruling of

[32] Reflecting on the extent and materiality of the similarities between the 2004 arsons, and the present allegations, I note the following:

(a) Both properties targeted in the earlier convictions were school classrooms and, putting to one side count 1 in the present indictment, the same type of property was targeted in counts 2 and 3 in the present indictment.

(c) There is a pattern of repeat lighting of fires with the 2004 fires occurring in quick succession, and the same being the case with the three fires up to the point of [the appellant‘s] apprehension on the present charges.

(d) All the fires were lit towards the middle of the night, and at least in the hours of darkness. This is hardly a strikingly distinctive feature, given that the cover of darkness is very likely to be deployed by persons intent on arson and hoping to avoid detection. In [the appellant‘s] case, it adds little to the notion of his opportunity for such offending, given that he acknowledges in both time periods a tendency to a nocturnal lifestyle.

(e) Those qualified to comment on [the appellant] after his apprehension for the 2004 fires described him as being at a high risk of re- offending. That is not of itself a ―similarity‖, but rather a factor which would suggest that the other similarities are deserving of somewhat more weight than would be the case if, for example, there was a context-specific explanation for [the appellant‘s] 2004 offending that was not likely to recur.

[117] In addressing the Judge‘s findings on the admissibility of propensity evidence, Mr Ellis submitted that Dobson J‘s findings fell short of the specificity required by the recent decision of the Supreme Court in Mahomed v R.⁴²In this respect Mr Ellis cited the following passage from the judgment of the majority of the Court.⁴³

[3] The rationale for the admission of propensity evidence rests largely, as William Young J says, on the concepts of linkage and coincidence. The greater the linkage or coincidence provided by the propensity evidence, the greater the probative value that evidence is likely to have. It is important to note, however, that the definition of propensity evidence refers to a tendency to act in a particular way or to have a particular state of mind. It is necessary, therefore, that the propensity have some specificity about it. That specificity in order to be probative must be able to be linked in some way with the conduct or mental state alleged to constitute the offence for which the person is being tried.

[118] Mr Ellis did not elaborate on this submission which stems, of course, from the definition of propensity evidence in s 40(1) of the Evidence Act. We are not persuaded there was any lack of specificity in the Judge‘s approach. The only matter at issue is whether it was the appellant who lit the fires. The Judge was specific about this and all the evidence he took into account was addressed to that issue. In simple terms, the question was whether the Hamilton convictions made it more likely that the Wellington fires were lit by the appellant and whether the probative value of that evidence outweighed any unfairly prejudicial effect.

[119] Mr Ellis next submitted that the only similarities between the Hamilton arsons and those with which the appellant is now charged are that they all occurred at a school; the fires were lit in the early morning; and all were within walking distance of the appellant‘s home. On the other hand, there were a number of dissimilarities. Mr Ellis submitted that, in relation to the Hamilton convictions, the appellant had kept newspaper clippings; had taken photographs of the fires; had made a telephone call to the fire service; was found to have been watching the fire; and he had spoken with fire officers at the scene. None of those factors were present

[120] Mr Ellis also submitted that no petrol or other accelerant was used in relation to the Wellington offending whereas an accelerant had been used in the Hamilton fires. This submission is not supported by the trial evidence. In sentencing the appellant for the Hamilton offending, Judge Clark referred to the fact that newspapers had been placed under the school buildings but ―other more usual accelerants‖ had not been used. The evidence was that petrol was used in the 2001 fire (for which the appellant was acquitted) but no accelerant was used for the 2004 fires.

[121] While this Court has said on many occasions that the focus under s 43 of the Evidence Act is upon similarities rather than dissimilarities, we agree with Mr Ellis that dissimilarities are not to be ignored in the overall analysis. Equally, however, drawing distinctions in matters of detail between the offending alleged and the propensity evidence from prior occasions is not usually a profitable exercise.

[122] Here, we agree with Dobson J‘s conclusion that there is a sufficient degree of similarity between the Hamilton offending and the Wellington charges. We do not view the dissimilarities as decisive. Those relied upon do not relate directly to the lighting of the fires. Rather, they relate to other conduct by the appellant showing a close interest in the fires around the time they were made. Indeed, they could be viewed as supporting the Crown case as they tend to demonstrate the appellant‘s close interest in fire lighting and, as Mr Ellis himself put it, the thrill which the appellant derives from that activity. The absence of such factors in respect of the Wellington charges may be explained by a greater degree of caution by the appellant as his police interview suggests.

[123] Mr Ellis next challenged the finding by the Judge as to the degree to which arson may be regarded as an unusual crime. ⁴⁴He submitted, relying on figures for arson in the United States and other jurisdictions, that arson was a crime of a widespread nature.⁴⁵Obviously there will be more arson cases in the United States

⁴⁵Referring to a report by John Hall ―Intentional Fires and Arson‖ (Fire Analysis and Research

referred to by Mr Ellis makes no comparative analysis with the incidence of other crimes.

[124] In New Zealand, the incidence of arson is relatively low. After the hearing, it was brought to our attention that the Ministry of Justice had published a report on crime statistics⁴⁶which contains at Table 2.9 a breakdown of property offences over the period 1997 to 2006. This shows the incidence of arson in comparison to other property-type offences. For convenience, we set out the table here:

Offence type	1997	1998	1999	2000	2001	2002	2003	2004	2005	2006
Burglary	6719	6374	5938	6339	5502	5711	5424	6398	6481	6087
Theft	13208	13793	13720	13246	14145	13921	14269	14276	14170	14644
Receiving stolen goods	3084	3374	3000	3010	2827	2437	2611	2729	2509	2683
Motor vehicle conversion	2793	2538	2431	2173	2053	2093	2130	2110	1967	2127
Fraud	18661	17124	15078	14394	14220	12765	13629	13550	11078	10770
Arson	198	313	209	170	198	213	212	219	238	209
Wilful damage	4800	5087	5156	5232	5065	5103	5285	5551	5802	6724
Other property	4211	4692	5646	5071	4705	5303	5461	5016	4199	4019
TOTAL	53674	53295	51178	49635	48715	47546	49021	49849	46444	47263

[125] We invited counsel‘s submissions in relation to these statistics. The appellant‘s counsel acknowledged that the incidence of arson was more rare than other property offences but submitted this did not show that arson was an unusual offence such as to be a relevant consideration in terms of s 43 of the Evidence Act

2006. He submitted that the statistics would have been more helpful if they had shown the number of persons convicted of arson (as distinct from the number of convictions) and whether any of the persons convicted had a previous conviction for arson.

[126] We accept that the statistics cannot be taken too far in this context. However, we are satisfied that the low incidence of arson amongst property-related criminal

⁴⁶Conviction and Sentencing of Offenders in New Zealand: 1997 to 2006 (April 2008).

offending in New Zealand means that the relatively unusual nature of the offence is such that where an accused has committed similar offending in the past, it tends logically to support the conclusion that he is more likely to have committed the subject offending.

[127] Mr Ellis submitted the admission of the propensity evidence would compromise the appellant‘s right to offer an effective defence in terms of s 8(2) of the Evidence Act and s 25(e) of the New Zealand Bill of Rights Act 1990. He acknowledged, however, the view expressed by the minority of the Supreme Court in Mahomed v R⁴⁷that there was little or no practical difference between the balancing tests under s 8 and s 43 of the Evidence Act (a view with which the majority did not disagree).

[128] In essence, s 43 of the Evidence Act addresses the point raised by Mr Ellis. Propensity evidence may only be admitted if it has a probative value in relation to an issue in dispute which outweighs the risk that the evidence may have an unfairly prejudicial effect on the defendant. As the majority of the Supreme Court noted in Mahomed v R, unfairness is generally found when, and to the extent, the evidence carries with it a risk that the jury will use it for an improper purpose or in support of

[129] Mr Ellis submitted that, without the propensity evidence, the Crown case was weak to the point where it would be vulnerable to an application under s 347 of the Crimes Act. He said the Court should, in such circumstances, subject the propensity evidence to a greater degree of scrutiny, particularly where the propensity evidence is to be based largely on previous convictions. We agree that care must be taken in assessing whether propensity evidence should be admitted, particularly in a case where the other evidence available to the Crown is relatively weak as it is here. However, we are satisfied that the scrutiny applied by Dobson J was appropriate.

[130] The final issue raised (both on this topic and in relation to the s 9 ruling) is

_{that the Judge failed to take into account the appellant‘s denials
of the Wellington}

offending. In particular, the Judge had rejected the appellant‘s denial without adequate reasons. Associated with this criticism was a submission that the Judge indulged in impermissible speculation when rejecting the appellant‘s denial that he went out on the occasion of the first Wellington fire and stating that he might have been influenced by a perception that the police had no evidence that he did go out that night.

[131] In support, Mr Ellis cited three cases decided by the Supreme Court of Canada.⁴⁹We accept it would have been helpful if the Judge had given reasons for rejecting the evidence of the appellant. The Judge appreciated that, to find it was more likely than not that the appellant lit the fires, it was necessary to find, at least on the balance of probabilities, that the appellant was not telling the truth when he denied lighting them. Yet he simply found he was satisfied that a finding to that

[132] Mr Ellis accepted it was unusual in this context for an accused person to give evidence. A judge conducting an inquiry under s 9 of the CPMIP would normally be faced with a consideration of the Crown evidence including any admissions made by the accused. Where the accused person gives evidence denying the offending, the task for the judge will be to consider all of the evidence including that adduced by the Crown and any evidence given or called by the defence. However, unlike a criminal trial, the Judge need only be satisfied on the balance of probabilities that the accused person committed the act in question.

[133] Given the careful analysis undertaken by the Judge of the evidence of the Crown, supported by the propensity evidence, we infer that the conclusion the Judge reached about the truthfulness of the appellant‘s account was based on his assessment of the appellant‘s oral evidence in the light of the other evidence tending to establish that the appellant lit the fires. It was clearly open to the Judge to conclude on the balance of probabilities that the appellant was not telling the truth.

[134] We note that the Canadian cases cited on behalf of the appellant can be distinguished since none of them dealt with a finding of the kind here in question. In

R v CLY the trial Judge, sitting alone without a jury, had considered the complainant‘s evidence first and concluded that she believed her before considering any of the other evidence. The appellant argued that the presumption of innocence was thereby undermined. A majority of the Supreme Court disagreed. The majority was satisfied that the Judge‘s reasons revealed that she understood that a finding that the complainant was credible did not mean the onus shifted to the accused to show that he was not guilty. It was not accepted that the sequence in which the Judge set out her findings on credibility undermined her articulated and correct statement of

[135] In R v EM, one of the issues on appeal was whether the trial Judge failed, when giving his verdict, to explain why he rejected the accused‘s denial of the charges. In considering the test for sufficiency of reasons, the Court described that it must be satisfied, looking at the reasons in their entire context, that the trial judge appears to have seized the substance of the critical issues. If there is contradictory evidence, the court should ask itself whether the trial judge appears to have

recognised and dealt with the contradictions.⁵¹In terms of the case before it, the

Court concluded that although there were some omissions, when the record was considered as a whole, the basis for the verdict was evident.

[136] Finally, in R v Laboucan the Supreme Court emphasised that credibility findings must not be influenced by the witness‘ status as the accused. Any assumption that an accused will lie to secure his or her acquittal flies in the face of the presumption of innocence, as an innocent person, presumably, need only tell the truth to achieve this outcome.⁵²On the facts of the case itself, the Court concluded that although some of the trial Judge‘s comments may have given cause for concern when viewed in isolation, they had to be read in the context of the entire reasons. When done so, it could be seen that the trial Judge when reasoning through his

verdict properly assessed and weighed the evidence of all the witnesses, including

_{the accused, without undermining the presumption of innocence or burden
of proof.}

[137] We conclude that while it would have been desirable for the Judge to have given reasons for his finding about the appellant‘s truthfulness, his failure to do so does not take us to the point where we regard his conclusions as wrong or unsafe. Nor do we consider that the Judge was distracted from his essential task by referring to a possible reason for the appellant denying he went out on the occasion of the first Wellington fire. It was, after all, no more than a possible explanation. As the three Canadian cases demonstrate, the focus must be on how the judge considered the evidence as a whole. We are satisfied that the Judge in this case did properly have regard to the entirety of the evidence and was justified in reaching the conclusion he did.

[138] On the remaining evidence relied upon by the Judge to support his finding under s 9 of the CPMIP, Mr Ellis submitted that the fact that the appellant lived within walking distance of the fires was only evidence of opportunity and did little to implicate him; there was little probative value in the appellant failing to answer the door when the police called; there was no evidence that either of the fires was lit by a lighter; and the finding of dirt on the appellant‘s trousers carried little evidential weight given the appellant‘s rather unusual lifestyle.

[139] We accept that, taken individually, none of these matters is strongly probative but it is the cumulative effect which is significant. Even so, without the propensity evidence, the Crown case was fairly weak. But when the propensity evidence is added, a stronger case emerges. We add that, in his police interview, the appellant admitted seeing the first of the Wellington fires while denying lighting it.

[140] Mr Ellis submitted finally that the police had failed to investigate the possibility that others may have been responsible for the arsons. He said that, because of the appellant‘s past history, the police simply approached him without bothering to inquire whether there were others who might have committed the crimes alleged. It was submitted that the Court had to be satisfied the appellant was more likely to have lit the fires than anyone else.

[141] As earlier noted, counsel for the Crown accepted in the High Court that the police had made no meaningful inquiries as to the prospect of the fires being lit by anyone other than the appellant. However, it was not suggested anyone else was in the vicinity of the fire at the relevant time.

[142] We accept the submission made by Ms Edwards that it was not necessary for the Crown to prove the appellant was more likely to have lit the fires than anyone else. That would place an impossible burden on the prosecution. Ultimately, if the jury is persuaded at trial that there is a reasonable possibility the appellant did not light the fires, then he would be entitled to be acquitted. However, the Crown‘s burden at trial is altogether different from the burden under s 9 of the CPMIP. We are satisfied that the evidence implicating the appellant as the culprit was sufficient to support the finding made by the Judge under that section.

[143] We conclude that there are no grounds to disturb the findings made on propensity evidence and s 9 of the CPMIP.

[144] Mr Ellis submitted the Judge was wrong to find that the appellant was fit to stand trial. He submitted that, at best, the appellant should be regarded as being on the borderline of being intellectually disabled. He accepted that, historically, the appellant‘s Full Scale IQ (FSIQ) was probably in the range of 74 to 82.⁵³While acknowledging that the focus of the hearings in the High Court was on the appellant‘s intellectual disability, he submitted the appellant also had a range of

personality disorders which, taken together with his borderline intellectual disability, were such that the Judge ought to have found he was not fit for trial.

[145] Mr Ellis also contended in his written submissions that the Judge had adopted a meaning of mental impairment which was too narrow and had wrongly conflated

⁵³The measurement of IQ involves a variety of components. FSIQ refers to the overall score.

[146] On 1 April 2011, the Judge heard evidence from Mr Woodcock, Dr Barry- Walsh and Ms Medlicott. He also had two written reports from each of those witnesses and the evidence given by Dr Barry-Walsh and Ms Medlicott at the earlier hearing on 22 November 2010. As well, the Judge had available to him historical reports from Dr Olive Webb dated 4 August 2004 and from Dr Erin Eggleston dated

[147] The Judge also viewed a video recording of an interview of the appellant conducted by a police officer on 14 December 2009. The video recording had been made available to the three expert witnesses who gave evidence before the Judge on

[148] The Judge commenced by careful analysis of the expert evidence. He dealt first with Mr Woodcock‘s evidence. It will be recalled that Mr Woodcock was the expert engaged on behalf of the appellant. In his first report of 15 November 2010, Mr Woodcock had concluded that the appellant‘s FSIQ was 65, with a 95 per cent confidence that his IQ was between 62 and 70. This assessment was measured by

the Wechsler Adult Intelligence Scale 3^rdedition (WAIS-III). As the Judge noted,

Ms Medlicott pointed out that this scale had been replaced in 2008 by the WAIS-IV measure which cast immediate doubt on the validity of the assessment made by Mr Woodcock.

[149] The Judge noted that Mr Woodcock‘s original opinion was that the appellant was mentally impaired. He suffered from mild mental retardation which raised questions about his ability properly to instruct counsel and his ability to understand the processes of the Court in a way which would enable him to conduct an adequate defence. The Judge also noted that in a subsequent report prepared by Mr Woodcock, he had concluded the appellant was subject to suggestibility.

[150] Importantly, the Judge recorded that when Mr Woodcock came to give oral evidence, he immediately acknowledged that he was disquieted by the record of the video interview already mentioned. Mr Woodcock‘s comments, as recorded by the Judge, were:

I‘m disquieted because the interaction between Mr R and the constable were such that I did not get a sense that Mr R was suffering from an intellectual disability. Far from it, that his interaction with the constable left me with a notion that he was both adept at dealing with the police and able to counter arguments that the constable gave forth as to why the constable thought that Mr R had committed the offence. Mr R was very, very adept at being able to counter those arguments and to produce arguments for himself, to substantiate his position. At some stages I had, and I‘m not wishing to be flippant here, I seriously wondered which of the two people had the higher IQ.

[151] The Judge went on to say that Mr Woodcock had stated that if he had seen the DVD of the interview before testing the appellant, he would have tested him for malingering. He was concerned about the reliability of the reported intellectual deficits and could not be sure that the results of his testing were not affected in consequence.

[152] Despite these obvious misgivings, Mr Woodcock remained of the view that the appellant was mentally impaired taking into account the presence of an anti- social personality disorder, some indication of psychopathy and the prospect of a narcissistic personality disorder. In respect of the nine questions posed by Baragwanath J in P v Police⁵⁴on whether an accused person is unfit to stand trial, Mr Woodcock was inclined to suggest that the appellant did manifest, at least to some extent, some of the difficulties identified in those questions.

[153] The Judge then summarised the evidence of Dr Barry-Walsh. He noted that Dr Barry-Walsh had reviewed various other reports about the appellant and had interviewed him twice in relation to the current offending. Dr Barry-Walsh considered the appellant could communicate with counsel more than adequately and he was not unfit to stand trial. He considered, as we have found above, that the concept of mental impairment must be applied in the context of the ability of an accused person to stand trial. Questioned about the finding by other experts that the appellant had an anti-social personality disorder, Dr Barry-Walsh said that a description of that kind could apply to between 50 and 80 per cent of all prisoners

[154] It is common ground that the appellant does not suffer from any identified mental illness. Dr Barry-Walsh accepted that this could not rule out the possibility of finding that an accused person suffering from a personality disorder was mentally impaired. Where personality dysfunction was so severe as to prevent the person functioning in the ways required to participate in a criminal trial, a finding of mental impairment might be possible. However, Dr Barry-Walsh did not find any such impairment in the appellant‘s case.

[155] Ms Medlicott was of the view that the appellant did not meet the required criteria for a diagnosis of intellectual disability. She had administered tests on the basis of the WAIS-IV measure but cautioned about the reliability of the outcomes. They may have been distorted as a consequence of clinical tests conducted by Mr Woodcock on the WAIS-III measure relatively shortly before her own testing. She expressed strong reservations about the validity of the WAIS-III tests administered by Mr Woodcock. The WAIS-IV measure had superseded the WAIS-III test and she considered it to be more reliable in the assessment of intellectual capacity. She disputed Mr Woodcock‘s view that the appellant was vulnerable to suggestibility, noting that, on her own viewing of the record of the police interview, she did not identify any sign of suggestibility.

[156] The Judge added that his own impression, having reviewed the record of the police interview, was very similar to the reaction of Mr Woodcock already noted. The Judge said this was consistent with his observations of the appellant giving evidence in court at an earlier hearing and the way in which he had conducted himself at earlier interlocutory hearings.

[157] The Judge then considered submissions made to him by counsel as to the meaning of the expression ―mentally impaired‖ in the CPMIP. The Judge did not consider it appropriate to apply the meanings of expressions drawn from legislation in other contexts such as the concept of a disability for the purposes of s 21 of the Human Rights Act 1993. He agreed with observations made by Fogarty J in

_{R v Roberts}⁵⁵_{to the effect that
modern academic thinking was moving towards}

For the purposes of this next step of psychiatric assessment I think it is sufficient to emphasise two points. That by statute an enquiry into whether or not a person is fit to stand trial is an enquiry into whether or not the person is ―mentally impaired”, as distinct from “mentally disordered‖ or “insane”. A person who is mentally disordered and/or insane and/or intellectually disabled, will be mentally impaired. But it does not follow that mentally impaired should depend upon one of those three diagnoses. In this case the enquiry is directed to examining whether the accused is capable of conducting a defence, or instructing counsel to do so.

The second point to emphasise is that the cause of ―due to mental impairment‖ has to be applied against the task expected of the accused person. The judgment has to be made in the context. It is not satisfied by the accused demonstrating some fundamentals of rationality. So the question is whether or not [R] is ―unable, due to mental impairment, to conduct a [rational] defence or to instruct counsel to do so‖, in this case.

[40] ...a mental impairment is a disorder or condition affecting the rationality of an accused to an extent that may compromise his or her fitness to stand trial. It needs to have regard not only to an accused person‘s ability to understand and make a rational decision on a plea, but all subsequent aspects of conducting a defence. It is the first aspect of a two-stage inquiry. There may be recognisable impediments to a person‘s rationality (ie he or she is mentally impaired) but then, on a second analysis, that impairment can be characterised as not sufficient to render the person unfit to stand trial.

[41] However, a literal approach recognising any impairment to the mental faculties by contrast with the mentally healthy population would broaden the concept of mental impairment beyond that which is warranted in this statutory context.

[159] We agree with the observations made by Fogarty J and Dobson J. The linking of mental impairment with fitness to stand trial is mandated by s 14(2) of the CPMIP:

(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

[160] In some cases, such as where an accused is found to be insane, suffering from a recognised mental illness or having an intellectual disability as defined by the Intellectual Disability Act, a finding of mental impairment such as to render him or her unfit to stand trial will be practically inevitable. However, there may be other less severe forms of mental impairment which may not have the effect of rendering the accused unfit to stand trial. That is a matter for judicial evaluation based on the expert evidence and assessed against the definition of the phrase ―unfit to stand trial‖ already cited.

[161] The Judge preferred Ms Medlicott‘s analysis that the appellant was not intellectually disabled, noting that Mr Woodcock had acknowledged doubts about the reliability of his tests. The Judge considered Ms Medlicott‘s testing was consistent with previous assessments of the appellant.

[162] While accepting that a finding the appellant was not intellectually disabled did not mean that he was not mentally impaired, the Judge preferred the view of Dr Barry-Walsh that such personality traits as had been identified in the appellant were not present to an extent that constituted a mental impairment. Dr Barry-Walsh had acknowledged that the appellant might have problems coping with issues confronting him, was likely to suffer from low moods and from deficiency in social interaction, as well as difficulties with anger, but these were not sufficient to constitute a mental impairment in the relevant sense.

[163] Finally, the Judge considered the responses of the appellant in the police interview were entirely consistent with a rational appreciation of the significance of

the questions and the importance of answering in a way that would not directly incriminate him. The Judge concluded:

[47] I remain wary of placing any significant reliance on my own lay observations of [the appellant‘s] capacity to contribute to his own defence. I would not do so if my own views were contrary to those of the experts. However, in the end all of the experts had consistent reactions to the DVD interview. The impression it gives of a competent response is so clear, that it would defy common sense for me to disregard it. Accordingly, on an analysis of all the material available to me, I am satisfied that [the appellant] is not mentally impaired in the sense that applies under s 14(1) of the CPMIP. He is accordingly fit to stand trial.

[164] We are conscious of the observations made by the English Court of Appeal in Walls that it is the duty of the court, save in clear cases, to rigorously examine the expert and other evidence adduced against the relevant criteria relating to the issue of fitness to stand trial.⁵⁷That obligation applies to the judge at first instance and to an appellate court hearing an appeal under ss 16 and 17 of the CPMIP.

[165] We are satisfied that the standard of proof on appeal is the same as that applicable at first instance, namely, on the balance of probabilities.⁵⁸Although ss 16 and 17 make no reference to the standard of proof, it would be wholly illogical if a different standard applied on appeal to that applicable at first instance.

[166] One of the reports available to Dobson J was that of Dr Erin Eggleston, a registered clinical psychologist. Dr Eggleston examined the appellant on 8 and

13 December 2005 and provided a report dated 18 January 2006. The appellant had been referred to Dr Eggleston by Ms Ennis for an opinion as to whether his status as a care recipient in terms of the Intellectual Disability Act should continue. Since Dr Eggleston‘s examination of the appellant took place only nine months after his Hamilton trial, his findings have a material bearing in determining whether the appellant was mentally impaired at the time of that trial. Dr Eggleston had available to him the previous reports prepared by Dr Haines in 2005 and Dr Webb‘s

[167] In summary, Dr Eggleston found that the appellant‘s FSIQ was in the range of 74 to 82 which ruled out intellectual disability as defined by the Intellectual Disability Act. The psychometric testing undertaken by Dr Eggleston at this time was consistent with the earlier assessment by Dr Webb (74 to 83). Dr Haines had reported an assessment of 68 to 80 but, as Ms Medlicott‘s evidence revealed, Dr Haines had not conducted psychometric testing of his own but relied on an assessment made by a Dr James.

[168] Dr Eggleston considered that the appellant‘s predominant disorder was anti- social personality disorder characterised by an enduring pattern of disregard for and violation of the rights of others. He also considered that the appellant had most of the traits associated with psychopathy. Of particular note in that respect were his poor behavioural controls, poor ability to regulate his thoughts of revenge, lack of remorse or empathy and his history of a range of anti-social behaviour.

[169] Dr Eggleston noted that the appellant had an ability to follow simple instructions, had the capacity for practical judgment, and had no deficits in attention, verbal repetition, visual perception, memory or abstract reasoning. There were mild deficits noted in calculation and a discrepancy between his oral comprehension and word recognition when reading.

29 December 2009, Dr Barry-Walsh noted that repeated assessments of the appellant had established that, although he had some intellectual limitations, he was not intellectually disabled. He described the appellant as having an unfortunate personality style characterised by a combination of anti-social and dependent traits and difficulties coping. However, he considered the appellant had a good understanding of the legal process; he clearly articulated how he intended to plead and Dr Barry-Walsh had no doubt that the appellant would not be unfit to be tried. He confirmed earlier assessments that there was no evidence of a psychiatric difficulty that would constitute a disease of the mind.

[171] Dr Barry-Walsh confirmed these views in his second report to the court dated

health difficulties were those of personality dysfunction. He did not find it helpful to use labels such as ―anti-social personality disorder‖ or ―paranoid personality disorder‖. He did not consider the appellant‘s personality dysfunction was sufficiently severe to be characterised as a mental impairment in the absence of other mental illness. Irrespective of the presence or absence of a mental impairment, the appellant was considered to be fit to stand trial.

[172] Ms Medlicott reported to the High Court on 17 November 2010. Her report included an extensive review of assessments and reports made in respect of the appellant over the period from 1994 to 2010. These included the assessments and reports prepared by Dr Webb, Dr Haines and Dr Eggleston in the period 2004 to

2006 at the time of the Hamilton offending. She also made a critical assessment of Mr Woodcock‘s report of 15 November 2010 which we discuss further below. As well, she conducted psychometric tests using the WAIS-IV measure.

[173] Ms Medlicott‘s conclusion was that, taken together, the appellant did not meet the first criterion for the diagnosis of an intellectual disability (an FSIQ of 70 or less). Ms Medlicott considered that Dr Webb‘s assessment of the appellant in 2004 was not consistent with the profile of a person with an intellectual disability. She noted shortcomings in the initial analysis made by Dr Haines in 2005, followed shortly afterwards by the reversal of his earlier opinion on the issue of intellectual disability. As to adaptive deficits, Ms Medlicott considered, if the appellant did have any such deficits, it did not follow that he had a disability. Rather, any such deficits were more consistent with his dysfunctional personality.

15 November 2010. He also made available to him previous reports and assessments although these did not include the reports of Dr Haines. Mr Woodcock conducted psychometric testing using the WAIS-III measure as earlier noted. He concluded the appellant‘s overall cognitive ability was in the extremely low range (an FSIQ of 65). This meant, in Mr Woodcock‘s opinion, that the appellant fulfilled the essential criteria for a diagnosis of mild mental retardation.

[175] As this Court noted in Te Moni, a diagnosis of mild intellectual disability reflects a level of intellectual functioning somewhat lower than the expression would suggest to a lay person.⁵⁹Mr Woodcock‘s report said that the essential feature of mental retardation is significantly sub-average general intellectual functioning accompanied by significant limitations in adaptive functioning. This raised questions about the appellant‘s ability to instruct counsel and to understand the court processes sufficiently so as to be able to conduct a defence. While Mr Woodcock was of the opinion that the appellant was mentally impaired, he considered it was a

matter for the court to decide whether the appellant was fit to stand trial. Despite that view, Mr Woodcock‘s interview with the appellant suggested that he had only a very rudimentary understanding of his current legal situation and the legal process. Further, it suggested that his ability to comprehend instructions and advice was at a very superficial level. Mr Woodcock considered the appellant had only a limited ability to follow basic factual testimony.

[176] Later, Mr Woodcock assessed the appellant under the Gudjonsson Suggestibility Scale. This is a tool for assessing the immediate recall and degree of suggestibility of an individual and comparing the results with forensic populations as well as the general population. The conclusions Mr Woodcock drew from this testing were that the appellant struggled to retain new verbal information in his short-term memory and was more susceptible to leading questions than the normative sample. He was prone to shifting his answers in response to being told he had made an error or being asked leading questions on multiple occasions. However, following negative feedback (suggesting his answers were wrong) there was no marked increase in the overall number of suggestions the appellant accepted.

[177] The Judge was entitled to discount the views of Mr Woodcock for two principal reasons. First, his methodology was the subject of substantial criticism from Ms Medlicott. Her reasons included Mr Woodcock‘s use of the outdated WAIS-III measure for psychometric testing; the difficulty in obtaining valid data from the administration of the psychometric measure while the subject is in prison (the results so obtained should be perceived as representing the lowest possible level

_{of functioning); the appellant ought to have been tested to ascertain
whether he was}

motivated to perform poorly on the assessment; and it should not be concluded that the findings represented what the appellant‘s intellectual functioning was during his developmental period (a reference to the definition in s 7(1)(c) of the Intellectual Disability Act). Overall, Ms Medlicott‘s view was that it should not be concluded that the data provided by Mr Woodcock reflected the appellant‘s actual intellectual functioning ability.

[178] The second principal reason to support Dobson J‘s discounting of Mr Woodcock‘s evidence has already been canvassed. He frankly acknowledged, after viewing the video interview of the appellant by the police officer, that he had no sense the appellant was suffering from an intellectual disability. He left the court in no doubt that the appellant‘s performance in the interview showed he was adept at dealing with the police and was able to offer constructive counter arguments to substantiate his position.

[179] Having viewed the video interview ourselves, we agree with the assessment made by Mr Woodcock, a view which the Judge plainly accepted himself. The appellant was interviewed by a detective at about 6.30am on Monday 14 December

2009 immediately after he had been spoken to by the police at his flat soon after the second fire earlier that morning. The interview lasted more than an hour. Our clear impression is that the appellant well understood all the questions that were put to him by the detective. He was tested about all the evidence and circumstances the Crown relied upon but his answers demonstrated that he was well able to hold his own in response to the detective‘s persistent questions.

[180] He maintained a consistent account. He said he had not gone out on the evening of 12 December. On the morning of 14 December, he had been walking past the place where the fire occurred, noticed a glow and could smell smoke, but maintained that he had not been responsible for lighting the fire. He gave an explanation for having the lighter and torch in his possession. He also explained why he had two pairs of shoes with him and why he had some dirt on his trousers. He understood the meaning of circumstantial evidence and also showed an understanding of the process which would need to be followed in order to provide forensic evidence linking the dirt found on his clothing to the dirt found under the

building where the fire had occurred. He responded similarly in respect of the footprint evidence which the detective put to him. The detective was obliged to acknowledge it was possible that the footprint could be that of a fire officer or other person attending the scene of the fire.

[181] The appellant accepted he was seen by a police officer at his door returning home that morning at a time after the fire had been lit but he explained that, because he had been approached so often by the police about lighting fires, it would be better if he were home in case the police called at his door as they had on other occasions. He gave a similar reason for not reporting the fire when he saw it. This was that, in relation to the Hamilton offending, a cellphone call he had made to the fire service had been traced and placed him in the locality of the fires.

[182] Overall, our impression is consistent with that of the Judge. The appellant had no difficulty in understanding what was put to him or in articulating reasonably plausible answers to the detective‘s questioning.

[183] We have also reviewed the oral evidence given by the expert witnesses in the High Court both in November 2010 and April 2011. Ms Medlicott amplified her criticisms of Mr Woodcock‘s initial findings on this point. She emphasised that the best clinical practice is to assess a person‘s intellectual functioning over a period of time. An assessment made at one point in a person‘s life and development is only a snapshot and should not be taken in isolation. In this respect, Ms Medlicott was critical of Mr Woodcock‘s failure to take into account the earlier assessments made by Dr Webb and Dr Eggleston. Her own analysis of Dr Webb‘s data showed that the appellant had a FSIQ in the range of 72 to 80 at a confidence level of 95 per cent. And, of course, Dr Eggleston‘s assessment was to similar effect.

[184] Ms Medlicott maintained her criticisms of the use by Mr Woodcock of the outdated WAIS-III psychometric testing measure. She also rejected a suggestion made in cross-examination that differences in intellectual functioning over time might have meant that Mr Woodcock‘s assessment of the appellant‘s IQ was as low as 60.

[185] The Judge‘s conclusion that the appellant was not intellectually disabled under the Intellectual Disability Act was inevitable on the evidence since, in the end, all three expert witnesses were in agreement on that issue.

[186] In these circumstances, counsel for the appellant sought to suggest to the expert witnesses that the appellant was suffering from various forms of personality disorder which could have amounted to mental impairment. Mr Woodcock suggested there was some indication of psychopathy and that the appellant may have a narcissistic personality disorder (although he referred to this only as a ―gut feeling‖). He was of the view that if a person was suffering from personality disorders of this kind, then he or she was mentally impaired.

[187] However, this view was emphatically rejected by Dr Barry-Walsh. He repeated the view he had expressed in his written report that the labelling of personality disorders was fraught with difficulty. He disputed the suggestion that anti-social personality disorder, narcissistic personality disorder and the possibility of psychopathy advanced by Mr Woodcock could, either individually or collectively, amount to a mental impairment. He did not consider the appellant was suffering from a narcissistic personality disorder at all.

[188] Dr Barry-Walsh was clearly surprised at the suggestion that the appellant‘s personality function might be evidence of mental impairment. In his experience, it was the first time that proposition had been advanced in cases such as this. Although he recognised there may be occasions where a person‘s personality is so damaged and so disorganised that, even without a clear mental illness, they could be so impaired as to be found unfit to stand trial, this was rare in his experience and the appellant did not fall into that category.

[189] There was extensive cross-examination in the High Court on the basis of Baragwanath J‘s decision in Police v P. Mr Woodcock accepted his views on these issues had changed in some respects. For example, while he still considered the appellant‘s understanding of the charges he was facing was rudimentary and simplistic, his view on the appellant‘s understanding of the charges and the exercise of rights of challenge to jury members had changed. He also considered the

appellant‘s short-term memory issues might impair his ability to give appropriate instructions to counsel. He said the appellant had a cursory understanding of legal processes, but having reviewed the video interview, he did not think the appellant would be totally inept in devising a defence. He added that the appellant had been remarkably restrained and cogent during the video interview. He accepted finally that a social worker present in court could facilitate the process of the appellant instructing counsel.

[190] Dr Barry-Walsh remained firmly of the view that the appellant was fit to stand trial in terms of the statutory definition in s 4 of the CPMIP.

[191] On the evidence, we conclude that the Judge was fully entitled to reach the view that any personality disorder from which the appellant may have been suffering was not such as to amount to mental impairment in the relevant sense. Given the misgivings expressed by Mr Woodcock, the Judge was justified in preferring the views of Dr Barry-Walsh and Ms Medlicott. We are also satisfied that no basis has been demonstrated for challenging Dobson J‘s ultimate conclusion that the appellant was fit for trial in terms of the s 4 definition.

[192] Mr Ellis made available to us copies of the submissions of a generic nature which he made in R v Ruka, an appeal under the CPMIP which had been heard by this Court but not decided at the time of the hearing of the current appeal. The decision in that case has now been delivered. ⁶⁰It is sufficient for us to observe that, to the extent the generic issues raised are relevant to the present case, we have no reason to take any different view from the conclusions reached in Ruka.

(a) We decline to extend the time for appealing against the Hamilton convictions (CA783/2010).

(c) We dismiss the appeals against the rulings made in the High Court under ss 9 and 14 of the Criminal Procedure (Mentally Impaired Persons) Act 2003 (CA232/2011).

[194] It will be a matter for the High Court to consider in due course whether any special assistance is required for the appellant at trial bearing in mind the need to ensure the appellant is able to effectively participate in his trial.

Court of Appeal of New Zealand

SR v R [2011] NZCA 409; [2011] 3 NZLR 638 (25 August 2011)