Togia v Police [2012] NZHC 1221 (1 June 2012)

Last Updated: 12 July 2012

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2010-485-139 [2012] NZHC 1221

SOLO SOLO TOGIA

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing: On the papers

Judgment: 1 June 2012

_{JUDGMENT OF CLIFFORD J}

[1] This is an application for leave to appeal to the Court of Appeal against my decision of 4 October 2011. In that decision, and as relevant, I determined that:

(a) Mr Togia had been in custody when, although on bail, he appeared in Court at an involvement hearing on 9 September 2009 when a report was ordered under s 38(1) of the Criminal Procedure (Mentally Impaired Persons) Act 2003; and

(b) that he was, on the basis of evidence adduced before me pursuant to s 17(4) of that Act, fit to stand trial.

[2] On Mr Togia’s behalf, Mr Ellis now seeks leave to appeal against that decision. He does so with respect to two grounds.

TOGIA v POLICE HC WN CRI-2010-485-139 [1 June 2012]

[3] The first ground is whether I was right to conclude, as I did, that Mr Togia was at the relevant time in custody. That question was, in effect, left open by the Court of Appeal in R v McKay.[1] For the Police, Mr Barr accepts that that is an appropriate ground on which to grant leave. Leave is granted accordingly.

[4] The second ground upon which Mr Ellis seeks leave is whether, in concluding that Mr Togia was fit to plead, I discharged the duty on the Court to “rigorously examine the expert and other evidence adduced against the relevant criteria relating to the issue of fitness to stand trial”.[2] As relevant, my decision reads as follows:[3]

At the hearing before me on 15 September 2011, and as provided by s 17(4) of CPMIP, Mr Ellis adduced further evidence from Mr Trainor and Ms Lilley as regards Mr Togia’s fitness to stand trial. He did so by reference to the list of some 21 questions or considerations that appear at 7.33 of Professor Brookbanks’ leading text, Psychiatry and the Law.[4] Mr Ellis addressed these or similar questions to each of Mr Trainor and Ms Lilley. Mr Trainor and Ms Lilley also referred to the reports they had previously prepared on Mr Togia, and the evidence they had given before Judge Gaskell in the District Court.

I do not think it is necessary to record that evidence in detail. Suffice to say that both Mr Trainor and Ms Lilley were of the view that Mr Togia was fit to stand trial and was capable of receiving a fair trial, providing appropriate arrangements were made to recognise his intellectual disability.

Having read the evidence they provided in their initial reports, before Judge Gaskell and at the hearing before me, I am satisfied that that is indeed the case. Both Mr Trainor and Ms Lilley were of the view that Mr Togia had what was in fact a surprisingly good recall of the events in question and that, advised by a lawyer and with the benefit of further accommodation to recognise the fact of his intellectual impairment, he would adequately understand and be able to participate in his trial so as to receive a fair trial. I therefore uphold Judge Gaskell’s decision on that point.

[5] For the Police, Mr Barr says this ground of appeal raises a question of fact, not a question of law. I am not persuaded that is correct. I think whether or not a Judge has discharged the duty referred to by the Court of Appeal in SR v R is more than a question of fact, and necessarily involves legal issues as it is an assessment of

_{what the Judge did (a question of fact) against a legal standard (a question of law).}

Moreover, in terms of the way I recorded my decision, I think Mr Ellis has a fair point. I therefore think it is appropriate to give leave on that matter also.

[6] Therefore, the two questions on which I give leave are:

(a) Whether I was correct in determining that Mr Togia was in custody at the time the relevant s 38 reports were ordered?

(b) Did I discharge the duty of rigorous examination referred to by the Court of Appeal in SR v R at [164] when I determined, as recorded above, that I was satisfied Mr Togia was fit to plead?

“Clifford J”

Solicitors: A Ellis, Blackstone Chambers, Wellington ([e-mail]) The Crown Solicitor, Wellington for the respondent ([e-mail]

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[1] _{R v McKay [2010] 1 NZLR 441.}
[2] _{See SR v R [2011] 3 NZLR 638 at [164].}

[3] _{Togia v Police HC Wellington CRI-2010-485-39, 4 October 2011 at [37]-[39].}

[4] W J Brookbanks and AIF Simpson (eds) Psychiatry and the Law (LexisNexis, Wellington,

2007).