Wheble v R [2024] NZCA 541 (23 October 2024)

Last Updated: 29 October 2024

IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA

CA638/2022 [2024] NZCA 541

	BETWEEN	ANTHONY JOHN WHEBLE Appellant
	AND	THE KING Respondent

Hearing:	2 October 2024
Court:	Mallon, Gwyn and Moore JJ
Counsel:	A C Cresswell for Appellant A J Ewing for Respondent
Judgment:	23 October 2024 at 11 am

JUDGMENT OF THE COURT

1. The application for an extension of time to appeal is granted.
2. The application to adduce fresh evidence is granted.

100. The appeal is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Gwyn J)

Table of contents

Introduction

• [1] Mr Wheble pleaded guilty to a charge of attempted murder. He was sentenced by Lang J in the Auckland High Court on 20 October 2022 to preventive detention.^[1] Mr Wheble initially filed an appeal against sentence. He now seeks leave to appeal his conviction.

Leave to appeal out of time

• [2] The time limit for filing an appeal against conviction is 20 working days,^[2] but the first appeal court can extend the time.^[3] This Court recently summarised the principles governing leave to appeal in Kriel v R.^[4] The overarching question is whether it is in the interests of justice to do so.
• [3] Mr Wheble’s appeal against sentence was filed within time, but approximately six months later he indicated he was exploring challenging his conviction. Mr Wheble eventually filed grounds of appeal on 20 February 2024, 16 months after his sentencing. His amended notice of appeal dated 23 February 2024 is an appeal against conviction. His sentence appeal was not pursued, but has not been formally abandoned. For the avoidance of doubt, we dismiss the appeal against sentence.
• [4] Ms Cresswell, counsel for Mr Wheble, notes the change of counsel in late 2023 as accounting for some of the delay and also says that the grounds for a conviction appeal became apparent only when a psychiatrist was engaged to review one of the s 88 reports prepared for Mr Wheble’s sentencing.^[5] The Crown says the delay in challenging the conviction is inadequately explained, but abides the Court’s decision on an extension of time. In light of the lack of prejudice to the Crown and given there was no fault on Mr Wheble’s part, we grant the application for leave to appeal out of time.

Factual background

The offending

• [5] On 12 January 2020 Mr Wheble was in the exercise yard at Auckland Prison, holding a shank, being a weapon made from a sharpened toothbrush with a disposable razorblade inserted into the end. The victim was a fellow prisoner, also present in the yard. The victim had both lower legs in plaster from an unrelated injury he had sustained earlier. He was sitting on the ground and leaning up against a wall.
• [6] Mr Wheble kicked the victim in the forehead, causing him to slump to the ground in a defenceless state. Mr Wheble then lifted the victim’s head and repeatedly stabbed him in the face with the shank. He let go of his head, took a step back and proceeded to kick the victim in the head on five further occasions.
• [7] The victim collapsed unconscious. Mr Wheble then held his head up with one hand and cut both his eyelids with the shank. Mr Wheble then stabbed the victim in the face 14 times. When the victim slumped over onto his left side, Mr Wheble repeatedly sliced the right side of his neck, causing a deep laceration above his carotid artery, 10 cm in length. He then stepped back and kicked the victim in the head on a further seven occasions.
• [8] The assault ceased when Corrections staff entered the yard. Mr Wheble was searched and found to be in possession of two shanks. The assault on the victim lasted for approximately a minute and was recorded in full by CCTV cameras. As a result of the attack the victim suffered extensive lacerations to his neck and eyelids, bruising and swelling to both eyes and the forehead, and multiple cuts to the face and neck.

Guilty plea; sentencing

• [9] Mr Wheble pleaded guilty to attempted murder on 8 February 2022, the first day of trial. He had previously been convicted for attempting to murder a fellow prisoner, in October 2018 at the Otago Regional Correctional Facility.^[6] Lang J sentenced Mr Wheble to preventive detention on 20 October 2022.

Grounds of conviction appeal

• [10] At the hearing before us, Ms Cresswell advanced the grounds of appeal in the following way: the fact that expert advice was not obtained at the time of the guilty plea means that Mr Wheble’s plea was entered without proper determination of his fitness to enter a plea, and the availability or otherwise of a defence of insanity, resulting in a miscarriage of justice. Although the amended grounds of appeal do not advance the second aspect as a separate ground of appeal, we have proceeded on the basis that these are the two, interlinked, grounds of appeal. Both limbs turn on the available evidence about Mr Wheble’s mental health, which is addressed below.

Applications for leave to adduce further evidence

• [11] The appellant sought leave to admit an affidavit from clinical psychiatrist Dr Mhairi Duff, dated 4 December 2023 and a psychiatric report by Dr Duff, dated 24 January 2024. Leave was not opposed by the Crown because, as this Court noted in McKay v R, where fitness to plead is raised on a conviction appeal “an appellate court will be liberal in the exercise of its discretion to receive further evidence on [the] topic”, given that s 17(4)(a) of the Criminal Procedure (Mentally Impaired Persons) Act 2003 (CPMIP) contemplates a mentally impaired appellant having the right to file evidence against a pre-trial finding about their fitness.^[7]
• [12] If Mr Wheble is to successfully impugn his guilty plea, he must supply evidence that a defence of insanity was available. The evidence is also relevant to the allegations of trial counsel error, further supporting its admission in these circumstances.^[8] Accordingly, we grant leave for Dr Duff’s evidence to be adduced. The Crown also adduced an affidavit dated 8 April 2024 from Mr Wheble’s trial counsel, Baden Meyer. Leave to adduce this evidence is not required.^[9]

Evidence on appeal

• [13] There are four sources of evidence about Mr Wheble’s mental state at the time of the offending and when he entered his guilty plea. These are:

(a) trial counsel’s account of his interactions with Mr Wheble between March 2021 and August 2022;

(b) Mr Wheble’s mental health records while in prison;

(c) two reports prepared under s 88 of the Sentencing Act 2002 for Mr Wheble’s sentencing, dated 26 April 2022 and 4 July 2022; and

(d) Dr Mhairi Duff’s affidavit.

• [14] We summarise each of those four sources of evidence in turn.

Trial counsel’s perception of Mr Wheble’s mental state

• [15] Mr Meyer represented Mr Wheble between March 2021 and August 2022. He deposes that during that 18 month period he met with Mr Wheble about 25 times. Mr Meyer logged each interaction with Mr Wheble and set out the detail of each interaction in his evidence. At all meetings, Mr Wheble presented as coherent. Mr Meyer says he did not detect any irrationality, paranoia or delusions. Mr Wheble appeared to understand counsel’s advice, the legal process, and the implications of his decision to plead guilty. Mr Wheble gave Mr Meyer a clear (albeit brief) account of the events that led to the charge of attempted murder, in the following terms:

(a) he had deliberately attacked the victim;

(b) the attack was planned in advance; and

(c) he had not intended to kill him. On the contrary, he had taken care not to hit any arteries in the victim’s neck.

• [16] At their first meeting, Mr Meyer explained to Mr Wheble the usual indicia of insanity, including hearing voices, a sudden snap, lack of memory, lack of awareness and disordered thinking. Mr Meyer said Mr Wheble made it very clear to him that what he did was a conscious decision, of his own volition. Mr Meyer said he saw no sign of an acute mental disorder and nothing in his interactions with Mr Wheble led him to believe that Mr Wheble was insane at the time of the offending. Mr Wheble indicated he did not want to pursue a defence of insanity and instructed Mr Meyer that he wished to pursue a defence of having a lack of murderous intent.
• [17] Mr Meyer’s evidence was that, although Mr Wheble did not present as insane or lacking capacity, he formed the view that it would be “common sense” to seek a s 38(1)(b) CPMIP report given that Mr Wheble already had a conviction for attempted murder and now faced another charge of attempted murder. He noted the aggravated and strange nature of Mr Wheble’s offending and the extreme level of violence exhibited. Mr Meyer said Mr Wheble’s “actions were not, in my opinion, normal behaviour and having a [s 38(1)(b)] report completed, would have, in my view, been beneficial”.
• [18] Mr Meyer sought s 38 reports on three separate occasions, but on each occasion the Court declined to order the requested report.

(a) The first request occurred on 15 April 2021. Mr Meyer sought a report under s 38(1)(b) to determine whether Mr Wheble was insane within the meaning of s 23 of the Crimes Act 1961. The basis for seeking that report was the nature of the offending: Mr Wheble’s actions were not normal behaviour, involving extreme violence in an apparently unprovoked manner while serving a sentence for attempted murder using the same modus operandi. Mr Meyer believed that having the report completed would have been beneficial. By minute of 19 April 2021 Fitzgerald J declined to order the report, saying that the alleged offending in and of itself did not suggest any concern with Mr Wheble’s mental health.

(b) The second request for a s 38(1)(b) report occurred on 31 May 2021. In addition to the reasons previously advanced, counsel advised that the defendant has a long history of mental health issues and associated interactions with mental health services. In her minute following the associated callover on 2 June 2021, Fitzgerald J did not order the report.

(c) The third application, made on 10 August 2021, sought an assessment under both s 38(1)(b) and (a) — the latter being an assessment of whether the person is unfit to stand trial. Counsel sought the reports as a result of additional disclosure which included letters written by Mr Wheble, which he considered gave cause for concern. The third application was also declined by Fitzgerald J in a minute of 11 August 2021.

• [19] The Judge said in the 11 August 2021 minute:

[5] ... In particular, Mr Wheble appears in a position to instruct Mr Meyer on various matters and to be cognisant of the progress of this proceeding. Accordingly, and while the threshold for triggering enquiries into fitness to stand trial is not high, there must be a proper basis to engage this formal process and I was not persuaded that position had been reached.

• [20] In that same callover minute, Fitzgerald J allocated a sentence indication hearing for 2 December 2021. However, on 6 December 2021, Mr Wheble said he had decided to proceed to trial.
• [21] Following the Court declining the applications for s 38 reports, Mr Meyer engaged his own psychiatrist, Dr Karl Jansen, to prepare a report independently. He sought and obtained funding approval for that report. However, Mr Wheble refused to meet with Dr Jansen as scheduled on 15 December 2021. On 23 December 2021 Mr Wheble instructed Mr Meyer he did not wish to proceed with the report and would not be engaging with any more psychiatrists. Mr Meyer says he was specifically instructed by Mr Wheble on that day to cease pursuing s 38(1)(b) reports.
• [22] On 23 December 2021 Mr Wheble instructed Mr Meyer to enter a guilty plea, contingent on receiving assurance that his conviction would be deferred until the repeal of the three strikes law. If the Court would not defer conviction, he would proceed to trial. Mr Wheble’s stated reasoning was that by close to the end of the trial there might be a more significant government update on the three strikes repeal.
• [23] A pre-trial minute of Gordon J dated 25 January 2022 notes that counsel for Mr Wheble advised that his instructions were that Mr Wheble would enter a guilty plea, conditional on being provided certainty that no conviction would be entered until the repeal of the three strikes law. The Court was not prepared to accept a guilty plea with such a condition.
• [24] On the morning of 8 February 2022, the day the trial was due to start, Mr Wheble instructed Mr Meyer that he did not wish the trial to proceed and that he would plead guilty to the charge. Mr Wheble provided Mr Meyer with a handwritten letter outlining his instructions and his reasoning for changing his plea. Mr Wheble read the letter to Mr Meyer. The letter has been adduced in evidence. Mr Wheble explained in detail that, despite not having the assurance regarding three strikes repeal, he wished to plead guilty. He did not wish to put the jury through seeing the CCTV footage of the incident. Mr Meyer discussed with him a further forensics report that could be obtained that might be of assistance at sentencing. Mr Wheble agreed to engage with the report writers in order to get the best sentence he could. Mr Meyer says it was evident to him that Mr Wheble was attempting to gain credit at sentencing, wherever possible.
• [25] Mr Wheble provided signed instructions on the change in plea. Those instructions were obtained in person and Mr Meyer’s colleague, Luka Grbavac, was also present at the meeting.
• [26] In summary, Mr Meyer’s view is that Mr Wheble was fit to plead. He bases this assessment on their numerous interactions, ranging from phone calls and AVL meetings to prison visits. He says that in each of these engagements, Mr Wheble presented as cogent and coherent, demonstrating a clear understanding of the legal processes, the charges against him, and the implications of the various decisions he might make. Mr Meyer also says that Mr Wheble clearly understood his advice, his options and the consequences of each option. He had all the extensive prosecution disclosure. The summary of facts was reviewed with Mr Wheble line by line, he was shown the CCTV footage of the attack more than once and was fully appraised of the legal proceedings and his options. Mr Meyer also says that he did not observe any mental unwellness (including irrationality, paranoia and delusion) in Mr Wheble. There was no impediment to their communication. In Mr Meyer’s view, Mr Wheble’s decision to plead guilty was a rational and informed one.
• [27] After entering a plea and before sentencing, Mr Meyer had a number of further meetings with Mr Wheble. At a meeting on 2 May 2022, they reviewed the content of a s 88 report dated 27 April 2022, which by this stage had been received, and that mentioned Mr Wheble having received treatment throughout his time in prison. Mr Meyer’s evidence is that this was the first time he became aware of any treatment Mr Wheble had received. He had previously sought Mr Wheble’s records from the Auckland District Health Board (ADHB), as was his usual practice, but was told there were no records.^[10] Mr Meyer noted in cross-examination that the Mason Clinic was a provider of psychiatric services to the prison service, through the ADHB.

Mr Wheble’s mental health records while in prison

• [28] In early 2020 Mr Wheble was a client of the forensic prison team. In his last psychiatric review before the index offence, on 26 November 2019, Dr Kyros Karayiannis (the author of one of the subsequent s 88 reports) reported Mr Wheble as suffering persecutory and paranoid delusions involving prison officers.
• [29] The index offence occurred on 12 January 2020. At his next review on 20 January 2020, a psychiatrist meeting with Mr Wheble recorded the following:^[11]

He reported that he is pretty good but said that we probably have heard about what happened. He was referring to the incident where he was reported to have slashed another inmate’s throat in unit 13. When asked his account of the incident, he denied [there] was any gang involvement or that he felt compelled to do it, he was unclear if it was impulsive or planned, he was quite reluctant to elaborate further. He seemed surprised at the word “victim” when we asked if he knew how the victim was. He said he had written what went through his mind before the incident in a “rhyme/rap” for us but he forgot to bring it with him today. He said he will pass it to us the next time. Later on in the review, he described his actions in relation to the incident as something spiritual where he said he had to do it to protect the people and animals outside (referring to outside prison), he denied it was planned, he said “all my concerns will be taken care [of]”, he said he does think about the victim and how he was doing. He said he has not been charged for the incident yet. He stated he does not want to be violent and denied having violent thoughts. When asked if he had violent fantasies he was vague, suspicious and hesitant with his reply. ... He does allude to some rather odd spiritual description in relation to his account of the serious violent assault which happened in unit 13. However, it remains unclear if the incident was driven by a psychotic process. Of note, he does describe and present with several symptoms consistent with psychopathy, namely lack of remorse and empathy, glibness, grandiose sense of self-worth, impulsivity, lack of realistic long term life goals and poor behavioural control. ... He describes on-going persecutory and paranoid delusions involving the [prison] officers. In addition there is likely moderate generalised anxiety disorder with obsessive-[compulsive] symptoms as described above.

• [30] In November 2021, after a June 2021 referral because of paranoid delusions and self-harm, Mr Wheble was discharged by the psychiatric team, as he was again compliant with his medication.
• [31] Mr Wheble pleaded guilty on 8 February 2022. On 22 February 2022 he was re-referred and described as “very paranoid”. A psychiatrist recorded that Mr Wheble had been “non-compliant with his medications since at least December 2021”. He presented with significant obsessive compulsive disorder symptoms, obsessive thoughts of self-mutilation and “a level of persecutory delusions and possible auditory hallucinations with attendant poor insight”.
• [32] On 1 March 2022 Mr Wheble was reported to have relapsed into persecutory beliefs after not taking his medication. By 21 March he was said to be suffering “significant psychotic symptoms” with gradual improvement since he had started taking medication again. A diagnosis of schizophrenia, with features of psychopathy, was recorded.
• [33] By July 2022, Mr Wheble’s paranoia and persecutory ideation had returned and between August and December 2022 he self-harmed by cutting off parts of his ears, eyelid and (on 19 October 2022) his left ring finger.
• [34] Mr Wheble was sentenced to preventive detention on 20 October 2022.

Dr Karayiannis’ s 88 report

• [35] In April 2022, two months after Mr Wheble pleaded guilty, he was briefly interviewed by consultant psychiatrist Dr Karayiannis. Dr Karayiannis found no evidence of significant cognitive impairment or intellectual disability; Mr Wheble had good recall of past events and dates. Mr Wheble did report persecutory and paranoid delusions regarding others tampering with his food and drink and likely auditory hallucinations or misinterpretations of others talking about him.
• [36] Dr Karayiannis reached the view that Mr Wheble met the requisite criteria for a diagnosis of schizophrenia disorder. Mr Wheble’s history suggested that for a period of at least five years he had experienced delusions, hallucinations, formal thought disorder, odd and disorganised behaviour, characterised by episodes of irrational violence. Dr Karayiannis noted those symptoms had been continuous, apart from periods of remission when on treatment.
• [37] Dr Karayiannis noted that Mr Wheble would have a mental impairment in terms of s 4(a) of CPMIP, namely schizophrenia disorder, and that Mr Wheble also met the criteria for a “mental disorder” under the Mental Health (Compulsory Assessment and Treatment) Act 1992.
• [38] Dr Karayiannis’ report referred to Mr Wheble’s long-standing history of self‑harm and assaulting other inmates with weapons. He noted “there had been concern that some of these factors have been related to persecutory delusions, but this had not been clearly elicited”.
• [39] Dr Karayiannis also recorded that Mr Wheble had been diagnosed with co‑morbid severe antisocial personality disorder with psychopathic traits, and a history of severe antisocial violent behaviour.
• [40] In relation to Mr Wheble’s future risk, Dr Karayiannis said “it [was] likely that his personality styles and characteristics, and historically substance use, contribute[d] significantly to his behaviour; and these [were] much less amenable to psychiatric treatment”.

Dr Louw’s s 88 report

• [41] In June 2022, four months after Mr Wheble’s guilty plea, a psychologist, Dr Willem Louw, interviewed Mr Wheble. Mr Wheble refused to share his mental health history.
• [42] In relation to the index offending, Mr Wheble told Dr Louw that he had been under the influence of a stimulant at the time. He said the victim had been relatively new to prison and boasting about his attacks on other prisoners, so Mr Wheble had been motivated to assault the victim to dissuade him from a future attack. He denied trying to kill the victim but accepted he had gone too far.
• [43] Dr Louw noted Mr Wheble’s “pervasive pattern of violence and aggression”. In Dr Louw’s opinion Mr Wheble’s violent offending could have a nexus either to psychosis, his psychopathic personality, or a substance use disorder.

Dr Duff’s opinion

• [44] Dr Duff interviewed Mr Wheble in August 2023. In her view, Mr Wheble’s mental health history “across more than a decade reflects a recurrent picture of persecutory and religious delusions, self-referential ideation, intermittent thought disorder and consistent themes of probable perceptual abnormalities”. She records that it is possible he has an unstable psychotic threshold and decompensates into brief periods of psychosis, or that he has a chronic psychotic illness but is intermittently able to mask or minimise symptoms.
• [45] In relation to insanity, Dr Duff notes that there are “hints of persecutory themes” within each of Mr Wheble’s account of his two attempts to murder another prisoner, but the connection between his mental health issues and his offending “were never formally explored”.
• [46] In relation to fitness to plead, Dr Duff’s view is that Mr Wheble distrusts mental health professionals and offers non-mental illness related explanations for his observed behaviours. This may have influenced how amenable he would be to exploring a defence of insanity. Dr Duff says that Mr Wheble’s fitness to stand trial “should arguably have been canvassed”.

Appeal against conviction following guilty plea

• [47] The appeal against conviction is brought under s 229 of the Criminal Procedure Act 2011. The Court must allow the appeal if, relevantly, there has been a miscarriage of justice. “Miscarriage of justice” is defined as:^[12]

... any error, irregularity, or occurrence in or in relation to or affecting the trial that –

(a) has created a real risk that the outcome of the trial was affected; or

(b) has resulted in an unfair trial or a trial that was a nullity.

• [48] The reference to “trial” in s 232(4) includes a proceeding in which the appellant has pleaded guilty.^[13]
• [49] A miscarriage is more than “an inconsequential or immaterial mistake or irregularity”.^[14] A “real risk” that the outcome was affected exists when “there is a reasonable possibility that a not guilty (or more favourable) verdict might have been delivered if nothing had gone wrong”.^[15]

Was Mr Wheble fit to plead?

The law on fitness to plead

• [50] “Unfit to stand trial” is defined in s 4 of CPMIP, as:

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

(b) includes a defendant who, due to mental impairment, is unable—

(i) to plead:

(ii) to adequately understand the nature or purpose or possible consequences of the proceedings:

(iii) to communicate adequately with counsel for the purposes of conducting a defence

• [51] “Mental impairment” is not defined in CPMIP but has been interpreted to mean “a disorder or condition affecting the rationality of an accused to an extent that may compromise his or her fitness to stand trial”.^[16]
• [52] A mentally impaired defendant will be unfit to stand trial if, at the relevant time, he or she lacks capacity to “participate effectively” in his trial.^[17] As this Court recognised in Solicitor-General v Dougherty, a “case specific contextual assessment” is required.^[18]
• [53] In Tihema v R, the Supreme Court endorsed the effective participation standard, noting that effective participation comprises the ability to:^[19]

(a) understand the nature and implications of the trial process;

(b) evaluate the impact of relevant information on the conduct of the defence;

(c) make the fundamental decisions referred to in Hall v R;^[20] and

(d) communicate instructions to counsel and give evidence, if that election is made.

• [54] But, as this Court noted in Britz v R, different considerations apply to determining fitness to plead.^[21] The Court said:

[113] ... the entering of guilty pleas does not require an ability to give adequate instructions to counsel during a trial, nor is there any need to process information and arrange one’s thoughts as would be necessary in the more stressful context of a trial.

• [55] Ms Ewing for the Crown also refers to R v Marcantoni, a decision of the Court of Appeal of England and Wales:^[22]

[8] ... There will be cases in which the defendant would be unable to follow proceedings at trial or to give evidence but would not lack the decisional capacity necessary for entering a plea of guilty. We would question the desirability of denying such a defendant the option of pleading guilty. Once it is established that a defendant who intends to plead guilty has the capacity to do so and that his plea is a sound basis for a safe conviction, it is difficult to see why he should be considered unfit to plead on the ground that he would be unable to understand a trial which will not take place or to give evidence in his defence when the evidence he would give, if called, is that he is guilty and he would not therefore be cross-examined.

• [56] And this Court in Tuira v R said:^[23]

[68] ... [W]hether an appellant was unfit at the relevant times (or whether there is a real risk that he was) is an intensely factual inquiry requiring an overall assessment of the available evidence. The critical focus is on fitness at the time the pleas were entered. Mr Tuira needed then to have sufficient capacity to convey his version of events to his counsel; he needed an adequate understanding of the nature of the charges he was facing and the defences available to him; and he needed an adequate understanding of the implications of his guilty pleas.

• [57] As noted in Britz v R, on appeal a court will most likely be assisted by contemporaneous evidence.^[24] And in SR v R this Court had regard to senior trial counsel’s perception of whether there were any issues at the time.^[25]

Was Mr Wheble fit to plead?

• [58] It is now apparent from the evidence that Mr Wheble suffers a mental impairment (schizophrenia disorder) that periodically manifests in paranoid delusions, particularly when he is refusing to take his medication.
• [59] Mr Meyer’s detailed evidence is that Mr Wheble consistently presented as “cogent and coherent, demonstrating a clear understanding of the legal processes, the charges against him, and the implications of various decisions he might make”. Mr Meyer says he did not observe any mental unwellness and nor was there any impediment to his communications with Mr Wheble. As recorded above, on three separate occasions Mr Meyer sought reports under s 38 of CPMIP. These requests were declined by the Court. Mr Meyer says the reports were sought on the general basis of the nature of the offending, rather than any specific concern arising from his interactions with Mr Wheble. Mr Meyer’s belief is that Mr Wheble’s decision to plead guilty was rational and informed.
• [60] While Dr Duff in her opinion says that fitness “should arguably have been canvassed”, she does not offer a formal opinion that Mr Wheble was in fact unfit, such as by addressing matters canvassed in Hanara v R.^[26] Dr Duff says that Mr Wheble’s mental illness:

... may have contributed to Mr Wheble’s decision making in relation to considering the defences potentially open to him and impacted on his competency to understand his options, weigh up the relative merits of one choice or another, reach a decision and instruct legal counsel competently in his defence.

• [61] However, Dr Duff did not have the benefit of trial counsel’s input. Mr Meyer’s experience of Mr Wheble was exactly the opposite. In Hanara v R, this Court reached a different conclusion to an expert assessment of the appellant prepared without the benefit of input from trial counsel.^[27]
• [62] A formal finding of unfitness to plead or unfitness to stand trial can be made only between the commencement of criminal proceedings and the conclusion of all the evidence at trial.^[28] But that does not prevent an appellate court from inquiring into and deciding whether a miscarriage of justice has occurred because an accused person was suffering at the relevant time from a mental disorder or some other form of mental impairment such that the statutory procedure should have been followed.^[29]
• [63] We conclude that, having regard to trial counsel’s evidence and the expert evidence of Dr Duff, Mr Wheble has not established that he was unfit to plead guilty. Applying the three requirements of fitness to plead identified in Tuira (at [56] above), we find that:

(a) Mr Wheble had sufficient capacity to convey his version of events to counsel. Mr Wheble gave his counsel a clear account of his offending including what he had wanted to achieve by that offending. Mr Meyer did not detect any signs of delusion or any difficulty in communication.

(b) Mr Wheble was facing a straightforward charge — attempted murder. His instructions to his counsel demonstrate he understood the essential nature of that charge. That is clear from the fact he instructed counsel that he wished to advance lack of murderous intent as a defence and did not want to pursue a defence of insanity. We find he had an adequate understanding of the nature of the charges he was facing and the defences available to him.

(c) Mr Wheble had an adequate understanding of the implications of his guilty plea. Mr Wheble knew a guilty plea would mean “waiving” the trial and being convicted and sentenced. He said his reason for doing so was to spare the jury considering the evidence against him, including the CCTV footage. Mr Wheble had a clear understanding of the sentencing process and likely outcomes, as evidenced by his attempts in the period leading up to the plea to maximise the sentencing benefits associated with a guilty plea.

Trial counsel error in relation to plea?

• [64] The principles applying to appeals based on trial counsel error are well-settled and were set out by the Supreme Court in R v Sungsuwan and by this Court in R v Scurrah.^[30] In Sungsuwan, the majority said:^[31]

[C]onsideration of whether there was in fact an error or irregularity on the part of counsel, and whether there is a real risk it affected the outcome, generally will be an appropriate approach. If the matter could not have affected the outcome any further scrutiny of counsel’s conduct will be unnecessary. But whatever approach is taken, it must remain open for an appellate court to ensure justice where there is real concern for the safety of a verdict as a result of the conduct of counsel even though, in the circumstances at the time, that conduct may have met the objectively reasonable standard of competence.

• [65] In Scurrah, this Court said:^[32]

[17] The approach appears to be, then, to ask first whether there was an error on the part of counsel and, if so, whether there is a real risk that it affected the outcome by rendering the verdict unsafe. If the answer to both questions is “yes”, this will generally be sufficient to establish a miscarriage of justice, so that an appeal will be allowed.

...

[20] But there will be rare cases where, although there was no error on the part of counsel (in the sense that what counsel did, or did not, do was objectively reasonable at the time), an appeal will be allowed because there is a real risk that there has been a miscarriage of justice.

• [66] Mr Meyer is an experienced trial counsel. His evidence demonstrates that he was aware of the unusual nature of Mr Wheble’s offending and, while there was no specific trigger for him doing so, sought to take the precautionary step of obtaining a s 38 report. He did so on three separate occasions. When the Court declined to order a report he obtained funding for and sought an independent report from Dr Jansen. Mr Wheble chose not to engage with Dr Jansen. Mr Meyer had a careful discussion with Mr Wheble about the consequences of pleading guilty and was satisfied that Mr Wheble understood those consequences, and the disadvantages and potential benefits of doing so. Throughout, Mr Meyer’s conduct of Mr Wheble’s defence was careful and thorough. As this Court noted in Akash v R expectations of counsel should not be put at an unrealistic “counsel of perfection” standard.^[33] We find no error by trial counsel in advancing a guilty plea on Mr Wheble’s behalf.

Did justice miscarry because trial counsel did not explore a defence of insanity?

Law on impugning a guilty plea

• [67] It is only in exceptional circumstances that an appeal against conviction will be allowed where the conviction followed a guilty plea. As this Court observed in R v Merrilees:^[34]

[35] It is often the case that an offender pleads guilty reluctantly, but nevertheless does so, for various reasons. They may include the securing of advantages through withdrawal of other counts in an indictment, discounts on sentencing, or because a defence is seen to be futile. Later regret over the entering of a guilty plea is not the test as to whether that plea can be impugned. If a plea of guilty is made freely, after careful and proper advice from experienced counsel, where an offender knows what he or she is doing and of the likely consequences, and of the legal significance of the facts alleged by the Crown, later retraction will only be permitted in very rare circumstances.

• [68] The exceptional circumstances in which a conviction appeal may be countenanced following a guilty plea were described in R v Le Page:^[35]

(a) Where the appellant did not appreciate the nature of, or did not intend to plead guilty to, a particular charge.

(b) Where on the admitted facts the appellant could not in law have been convicted of the offence charge.

(c) Where the plea was induced by a ruling which embodied a wrong decision on a question of law.

• [69] In Merrilees this Court added a further category: where trial counsel erred in advising as to the non-availability of certain defences or potential outcomes or where counsel wrongly induced a decision to plead guilty under a mistaken belief or assumption that no tenable defence existed or could be advanced.^[36] The overriding consideration must be whether the plea produced a miscarriage of justice, noting that the concept of miscarriage of justice “is not to be thrust into an over-defined straightjacket” and that the categories of exceptional circumstances justifying a vacation of plea after the entry of a guilty plea are neither closed nor complete.^[37]
• [70] The appellant must do more than simply assert the existence or potential existence of a defence to demonstrate a miscarriage of justice.^[38] As this Court described it in Cooper v R, this requires the raising of a defence that has “some substance”.^[39]

Trial counsel error in failing to explore defence of insanity?

• [71] The miscarriage of justice asserted in this case is said to have arisen from counsel’s failure to investigate and advise on the availability of a plea of insanity. Ms Cresswell submitted that the facts of the case, including Mr Wheble’s prison records and the two s 88 reports, should have alerted reasonably diligent counsel to seek further information about Mr Wheble’s mental health.
• [72] The principles relevant to trial counsel error are set out above.^[40] To recap, Mr Meyer’s evidence is that, shortly after being assigned to represent Mr Wheble, he discussed with him the potential availability of the defence of insanity. He raised the indicia of insanity. In response, Mr Wheble instructed Mr Meyer to pursue a defence of lack of murderous intent. Mr Wheble explained that he had only wanted to inflict grievous bodily harm on the victim, but not to kill him. He explained how, to that end, he had carefully planned the assault and carried it out with care.
• [73] Based on Mr Wheble’s instructions to him, Mr Meyer did not think insanity was a tenable defence — he gave a “coherent and detailed description of his actions”, knew what he had done, and knew that it was morally wrong.
• [74] Nevertheless, as already outlined, Mr Meyer sought a s 38(1)(b) CPMIP report on whether Mr Wheble might be insane and did so on three separate occasions, all of which were declined by the Court. Mr Meyer also requested Mr Wheble’s mental health records from the ADHB, but was ultimately told they held no records. Mr Meyer privately instructed a psychiatrist, Dr Jansen, but Mr Wheble refused to be interviewed by him. Mr Meyer says the first time he was aware of Mr Wheble having received treatment while in prison was on 2 May 2022 where he reviewed with Mr Wheble the 27 April 2022 s 88 report.
• [75] We are satisfied that that there was no trial counsel error in failing to explore a defence of insanity. Once Mr Meyer was satisfied that Mr Wheble was fit to plead, he could not, in our view, have disregarded Mr Wheble’s instruction that he did not wish to pursue a defence of insanity. Having regard to the steps taken by Mr Meyer, it is unclear what more he could have done.

Was insanity a tenable defence?

• [76] We go on to consider whether in fact insanity might have been a tenable defence.
• [77] To establish a defence of insanity, the defendant has the onus of proving on the balance of probabilities that they were insane at the time of the offending.^[41] This involves a two-stage test: first, proving the defendant suffered from a “disease of the mind”^[42] or “natural imbecility”^[43] at the material time; and second, if that disorder existed, proving that the defendant did not understand the “nature and quality” of their actions or that their actions were morally wrong.
• [78] Evidence indicating a potential presence of a disease of the mind includes the 26 November 2019 s 88 report of Dr Karayiannis which records that, before the index offending, Mr Wheble was having persecutory and paranoid delusions about prison officers. A psychiatrist who met with him eight days after the offending recorded that those delusions were ongoing. As of April 2022 Mr Wheble was formally diagnosed as having schizophrenia disorder. We accept that the first stage of the test may be satisfied.
• [79] As to the second stage, the one issue that might have given us concern in terms of s 23(2)(b) of the Crimes Act (knowing that the act or omission was morally wrong) was the reference from Mr Wheble’s psychiatric interview on 20 January 2020, cited in Dr Karayiannis’ s 88 report, where Mr Wheble:

... described his actions in relation to the incident as something spiritual where he said he had to do it to protect the people and animals outside (referring to outside prison), he denied it was planned, he said “all my concerns will be taken care [of]”, ...

• [80] However that reference is at odds with the account Mr Wheble gave to Dr Louw that he was under the influence of an illicit substance during the attack and that he was aiming to “dissuade” the victim, who had boasted of attacking other inmates, from attacking him. It is also inconsistent with the account Mr Wheble gave to trial counsel. At no other point did Mr Wheble say that he attacked the victim with a spiritual motivation.
• [81] Dr Duff does not comment on whether Mr Wheble was insane when he offended. Rather, her affidavit addresses “whether there is evidence to support the proposition that Mr Wheble may have been unable to adequately consider defences potentially available to him”, including insanity. Dr Duff notes that the connection between his mental health issues and his offending was “never formally explored”.
• [82] We agree with the Crown that, absent an expert opinion, an insanity defence was untenable. Nor can the two s 88 reports fill this gap. While both reports noted the possibility that Mr Wheble’s violence could have been the product of a psychotic process, Dr Karayiannis recorded that “had not been clearly elicited” and Dr Louw noted that there were other explanations for Mr Wheble’s extreme violence against other prisoners — his psychopathic traits and substance abuse. Ultimately, we are satisfied that Mr Wheble has not established that insanity was a tenable defence. There is no plausible evidence that Mr Wheble did not understand the nature and quality of his actions or that what he did was morally wrong. It is also unclear whether any disease of the mind was operative at the time of the offending.

Conclusion

• [83] We conclude that Mr Wheble was fit to enter a guilty plea and has not demonstrated that his counsel’s conduct deprived him of a tenable defence.

Result

• [84] The application for an extension of time to appeal is granted.
• [85] The application to adduce further evidence on appeal is granted.
• [86] The appeal is dismissed.

Solicitors:
Crown Law Office | Te Tari Ture o te Karauna, Wellington for Respondent

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^[1] R v Wheble [2022] NZHC 2730 [sentencing notes].

^[2] Criminal Procedure Act 2011, s 231(2).

^[3] Section 231(3).

^[4] Kriel v R [2024] NZCA 45 at [79]–[87].

^[5] Sentencing Act 2002, s 88.

^[6] R v Wheble [2019] NZHC 1301.

^[7] McKay v R [2009] NZCA 378, [2010] 1 NZLR 441 at [103].

^[8] See Pay v R [2024] NZCA 41 at [48]–[53]; and Mohamed v R [2023] NZCA 143 at [38].

^[9] Court of Appeal (Criminal) Rules 2001, r 12A.

^[10] As is apparent from the s 88 reports discussed below at [35]–[43], the response by the ADHB to Mr Meyer was inaccurate.

^[11] This record was quoted in Dr Karayiannis’ s 88 report.

^[12] Criminal Procedure Act, s 232(4).

^[13] Section 232(5).

^[14] R v Matenga [2009] NZSC 18, [2009] 3 NZLR 145 at [30].

^[15] R v Sungsuwan [2005] NZSC 57, [2006] 1 NZLR 730 at [110].

^[16] SR v R [2011] NZCA 409, [2011] 3 NZLR 638 at [158]–[159].

^[17] Nonu v R [2017] NZCA 170 at [29]; and Hanara v R [2022] NZCA 608 at [112]–[114].

^[18] Solicitor-General v Dougherty [2012] NZCA 405, [2012] 3 NZLR 586 at [56].

^[19] Tihema v R [2024] NZSC 112 at [45]–[46], endorsing the approach in Nonu v R, above n 17, at [30].

^[20] Hall v R [2015] NZCA 403, [2018] 2 NZLR 26 at [65].

^[21] Britz v R [2012] NZCA 606 at [113]–[114].

^[22] R v Marcantonio [2016] EWCA Crim 14, [2016] 2 Cr App Rep 81 at [8]. This approach was preferred by this Court in Hanara v R, above n 17, at [145]–[146].

^[23] Tuira v R [2018] NZCA 43, citing Britz v R, above n 21, at [92] (footnote omitted).

^[24] Britz v R, above n 21, at [92].

^[25] SR v R, above n 16, at [48].

^[26] Hanara v R, above n 17, at [118].

^[27] At [132].

^[28] Cumming v R [2008] NZSC 39, [2010] 2 NZLR 433 at [13].

^[29] Cumming v R, above n 28, at [13]; and Britz v R, above n 21, at [23].

^[30] R v Sungsuwan, above n 15; and R v Scurrah CA159/06, 12 September 2006.

^[31] R v Sungsuwan, above n 15, at [70] per Gault, Keith and Blanchard JJ.

^[32] R v Scurrah, above n 30, at [17] and [20].

^[33] Akash v R [2020] NZCA 590 at [58].

^[34] R v Merrilees [2009] NZCA 59. This approach was cited with approval in Akash v R, above n 33, at [27].

^[35] R v Le Page [2005] NZCA 67; [2005] 2 NZLR 845 (CA) at [17]–[19].

^[36] R v Merrilees, above n 34, at [34].

^[37] Whichman v R [2018] NZCA 519 at [36], citing Wilson v R [2015] NZSC 189, [2016] 1 NZLR 705 at [104]; and Akash v R, above n 34, at [29].

^[38] Nixon v R [2016] NZCA 589, (2016) 28 CRNZ 698 at [11].

^[39] Cooper v R [2013] NZCA 551 at [20]–[21].

^[40] At [64]–[65].

^[41] Crimes Act 1961, s 23. See also The Queen v Cottle [1958] NZPoliceLawRp 16; [1958] NZLR 999 (CA) at 1014 and 1022 per Gresson P, 1025 per North J and 1031 per Clearly J; R v MacMillan [1966] NZLR 616 (CA) at 624; and R v Dixon [2007] NZCA 398, [2008] 2 NZLR 617 at [32].

^[42] R v Cottle, above n 41, at 1028; and Marong v R [2018] NZCA 531 at [24].

^[43] See the discussion on “natural imbecility” in R v Tu [2016] NZHC 1334 at [79] and [80].