R v Taylor [2016] NZDC 6670 (15 April 2016)

Last Updated: 7 November 2016

EDITORIAL NOTE: NAMES AND/OR DETAILS IN THIS JUDGMENT HAVE BEEN ANONYMISED.

IN THE DISTRICT COURT AT PALMERSTON NORTH

CRI-2015-054-000665 [2016] NZDC 6670

THE QUEEN

v

_{JUSTIN TAYLOR}

Hearing:	15 April 2016
Appearances:	B D Vanderkolk for the Crown No appearance by or for the Defendant S N Hewson as Amicus Curiae
Judgment:	15 April 2016

ORAL JUDGMENT OF S B EDWARDS

[Findings under s 14 Criminal Procedure (Mentally Impaired Persons) Act

_2003]

[1] Justin Taylor faces a number of charges arising from a series of events on

2 March 2015 which started outside the Ministry of Social Development’s branch office in [location deleted] and continued on the way to and at his home address on [address deleted].

[2] The charges are wounding with intent to cause grievous bodily harm or, as an alternative charge, wounding with intent to injure, three charges of aggravated assault and failing to stop for police.

[3] The issue of Mr Taylor’s fitness to stand trial having been raised, these charges were the subject of a hearing under s 9 Criminal Procedure (Mentally

_{Impaired Persons) Act 2003, (“the CPMIP Act”), on 29 February this year.}

R v JUSTIN TAYLOR [2016] NZDC 6670 [15 April 2016]

[4] After reviewing the prosecution evidence I found I was satisfied on the balance of probabilities that the evidence against Mr Taylor was sufficient to establish he caused the physical acts which form the basis of charges.

[5] The next step in the process was to obtain the evidence of two health assessors as to whether or not Mr Taylor is mentally impaired. Those reports were required before we could proceed with a hearing under s 14 to determine whether Mr Taylor is unfit to stand trial.

[6] These reports have now been obtained. There is a report from Dr Justin Barry-Walsh dated 23 March 2016, and a second report from Dr Lehany dated 13 April 2016. I am grateful to both health assessors for agreeing to the Court’s request to provide these reports in unusual circumstances. The reports are based entirely on a review of available documentation, which includes some notes from the Māori Mental Health team who assessed Mr Taylor following his arrest for this offending. Neither psychiatrist has been able to interview Mr Taylor, as he has consistently refused to be interviewed or even meet with a psychiatrist.

[7] Both psychiatrists indicate that it is not possible to give a definitive opinion about the presence of mental impairment or assess fitness to stand trial in the absence of an interview. However, despite this they have understood the position the Court is in with having to comply with the process mandated in McKay v R1 and have helpfully provided their views obtained from the available documentation.

[8] A preliminary issue to address today is whether this s 14 hearing can even proceed in Mr Taylor’s absence. He has not been brought to Court today. I have received information from Linton Prison advising that he told staff in no uncertain terms that he would not be attending Court. He also refused to be strip searched which is a prerequisite for transport to, and attendance at, Court.

[9] Having now presided on several occasions when Mr Taylor has been in

Court, I am aware of his ability to behave in a disruptive manner and I am also aware that if he does not wish to do something he can create real security difficulties. I did

1 McKay v R [2009] NZCA 378, [2010] 1 NZLR 441.

not wish to endanger any prison or police escort staff and so directed that no attempts should be made to force Mr Taylor to attend Court today.

[10] Section 14 (2) CPMIP Act provides that the parties must be given an opportunity to be heard and present evidence as to the issue of fitness to stand trial. This arises only if the Court is satisfied that the defendant is mentally impaired, so arises only at the second stage of the s 14 inquiry.

[11] Looking at the question of opportunity to be heard, I note that as recorded in my minute of 29 February Mr Taylor declined to stay in Court for the s 9 hearing. Once he realised the scheduled three day Judge-alone trial was not proceeding, he told me he had no interest in remaining for a s 9 hearing.

[12] There is a transcript of our discussion from that date which records that following my attempts to explain the purpose of the s 9 hearing to him, Mr Taylor said;

Nah, I’m here for a trial, I’m not here for a hearing. If this is not a trial I am

off. I’ll catch you later.

[13] Given that previous indication from Mr Taylor that he had no wish to be involved in the CPMIP process, I am satisfied this same position is reflected in his refusal to attend Court today.

[14] One remaining issue is the relevance of s 118 Criminal Procedure Act 2011. It sets out the hearings at which a defendant must be present. Subsection (2) provides for a number of exceptions, the second of which is if the Court orders the defendant be removed from the Court for interrupting the hearing to such an extent that it is impracticable to continue in his or her presence.

[15] Of course, Mr Taylor’s declining to attend today means that he cannot be said to be interrupting the hearing to the extent that it is impracticable to continue, however, on a number of occasions in the past it has been necessary to rely on s 118(2)(b) to continue with the proceedings in Mr Taylor’s absence after he has been removed from Court. That has just not been the case before me, but before other Judges in this Court.

[16] I record that I am satisfied it is appropriate to continue with both stages of the s 14 hearing in Mr Taylor’s absence today.

[17] My first task at this hearing under s 14 is to determine on the evidence before me whether Mr Taylor is mentally impaired. This is a pre-condition for an unfitness finding. The term mental impairment is not defined in the CPMIP Act. It is to be interpreted broadly to include both mental disorder and intellectual disability and impairment from other causes such as acquired brain injury. Cognitive defects and functional disorders may also amount to a mental impairment.

[18] The Court of Appeal in the case of SR v R2 approved Dobson J’s statement in

the High Court about the meaning of mental impairment. He said:

...a mental impairment is a disorder or condition affecting the rationality of an accused to the extent that may compromise his or her fitness to stand trial...

[19] In his report, Dr Barry-Walsh considers the views Mr Taylor holds and the way he expresses them, taken from the transcript of the discussions in Court on

29 February. He is of the opinion that collectively these materials indicate Mr Taylor is a man who appears to be rigid and entitled in his views and seems to be less reasonable than most people.

[20] However, Dr Barry-Wash notes that Mr Taylor is not alone in his views. His position on sovereignty, the confederation of tribes and the 1835 Declaration of Independence is not one he is alone in holding. Dr Barry-Walsh also refers to well recognised movements in the western world whose followers hold similar sovereign citizen or free-man views.

[21] He considers that Mr Taylor’s beliefs are congruent in general with these recognised subcultures. Taking into account the assessment by Māori Mental Health Services after Mr Taylor’s arrest, Dr Barry-Walsh considers that although he may be a man who is difficult to deal with and who holds rigidly to unhelpful and unconstructive views, Mr Taylor is unlikely to be mentally ill. He considers it less likely the sources of his beliefs and therefore his actions, arise from a mental

_{disorder such as a delusional disorder or other psychotic illness.}

2 SR v R [2011] 3 NZLR 638, at [158] – [159].

[22] Dr Barry-Walsh qualifies that opinion by noting again that he has not had the opportunity to interview Mr Taylor.

[23] Dr Lehany also confirms it is not possible to give a definitive opinion regarding the presence of mental impairment in the absence of formal interview or assessment. However, on the basis of the information available to him he could find no convincing evidence that Mr Taylor is suffering from a mental impairment and he did not appear to be exhibiting clear signs of mental illness.

[24] I am therefore satisfied on the evidence before me that the defendant is not mentally impaired, or more appropriately in this case, I am not satisfied there is sufficient evidence to find the defendant is mentally impaired.

[25] The second stage of the s 14 inquiry is to determine whether the defendant is unfit to stand trial. On one view of s 14, this must only be done if the Court is first satisfied the defendant is mentally impaired. However, out of an abundance of caution I will address the issue of fitness to the extent the psychiatrists have been able to do so.

[26] Dr Barry-Walsh felt that the transcript of discussions on 29 February showed Mr Taylor demonstrated some understanding of Court processes, although there was evidence of misinterpretation. He took the view that on balance, Mr Taylor was not unfit to stand trial.

[27] Dr Lehany examined the question of fitness in a little more detail. The phrase is of course defined in CPMIP Act as meaning a defendant who is unable, due to mental impairment, to conduct a defence or to instruct counsel. It includes a defendant who is unable to plead, to adequately understand the nature or purpose or possible consequences of the proceedings or to communicate adequately with counsel for the purpose of conducting a defence.

[28] From his review of the documentation, Dr Lehany considered that it appeared Mr Taylor does understand the nature and purpose of the Court, although he does not accept its legitimacy. In his opinion, this failure to accept the legitimacy of the Court is not as a result of mental impairment and therefore does not mean he is unfit to stand trial.

[29] There is Court of Appeal authority for the proposition that the fitness to plead inquiry does not include determining whether a defendant will act in his or her own best interests. This is the decision in Solicitor-General v Dougherty.3 Mr Dougherty was charged with 74 counts of filing false GST returns. He elected to act for himself. His defence was that not only was he being persecuted by the Inland Revenue Department but that the Commissioner of Inland Revenue deliberately persecutes many people with the aim of forcing them to commit suicide.

[30] Mr Dougherty’s delusional disorder qualified as a mental impairment and he was found to be mentally impaired in the District Court. However, the District Court Judge then went on to reach a decision on fitness to stand trial, referable only to a “best interests” test. The Court of Appeal determined that this was not the test and as an incorrect test had been applied the fitness issue had to be reconsidered.

[31] The essence of the decision is that acting against your own best interests, or as Mr Vanderkolk puts it, acting in a way which may prejudice your own defence, is not in itself indicative of unfitness.

[32] I raise this because the initial concerns about Mr Taylor which triggered the CPMIP process were based in part on his determination not to acknowledge the jurisdiction of the Court, to the extent that he has never sought or applied for bail. In that sense, he can be said to have been acting in a principled way but obviously not in his own best interests, as he has been in custody for over a year now.

[33] I am satisfied Mr Taylor is fit to stand trial, so the proceedings must continue.

[34] The two day Judge-alone trial is set down for 7 and 8 June and Mr Taylor is remanded in custody until that date.

S B Edwards

_{District Court Judge}

3 Solicitor-General v Dougherty [2012] NZCA 405.