Mika v Police [2012] NZHC 2668 (12 October 2012)

Last Updated: 31 October 2012

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CRI-2012-412-37 [2012] NZHC 2668

FA'AALU SALLY MIKA

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing: 12 October 2012

Counsel: J Takas for Appellant

M Grills for Respondent

Judgment: 12 October 2012

(ORAL) JUDGMENT OF LANG J

_{[on application for leave to appeal out of time against conviction and sentence]}

FA'AALU SALLY MIKA V NEW ZEALAND POLICE HC DUN CRI-2012-412-37 [12 October 2012]

[1] Ms Mika faced charges in the District Court of assault (x 2), resisting arrest and disorderly behaviour. She pleaded not guilty to the charges, but after a defended hearing on 29 and 30 August 2007, Judge McMeeken convicted her on all charges.[1]

The Judge subsequently fined her $250 on one of the assault charges and fined her the further sum of $150 on the charge of disorderly behaviour.[2] The Judge ordered Ms Mika to pay Court costs in respect of the other assault charge, and convicted and discharged her on the remaining charge.

[2] Ms Mika originally filed an appeal against both conviction and sentence. On or about 12 November 2007, however, she wrote to the Court advising that she wished to abandon her appeal. She has now filed an application for leave to appeal out of time under s 123 of the Summary Proceedings Act 1957. She asks the Court to deal with the appeal, notwithstanding that it relates to Court proceedings that occurred more than five years ago.

Leave to appeal

[3] There is not a great deal of authority regarding the principles to be applied when an appellant applies under s 123 for an order granting leave to appeal out of time. Such authority as exists[3] tends to suggest that the onus is on the applicant to show special reasons or circumstances why the decision and sentence should not stand. The discretion is provided to the Court, however, essentially for the purpose of avoiding a miscarriage of justice. Another issue that may be relevant is whether

the proposed appeal has merit. In a case where, as here, there has been very significant delay, the reasons for the delay should also be explained.

[4] At my direction, Ms Mika filed an affidavit setting out the reasons why she withdrew her original appeal, and why she waited five years to file the present application. In her affidavit, she explains that she has been diagnosed as being a paranoid schizophrenic. She says that she was not diagnosed until July 2007, at

_{which time she was made subject to a compulsory treatment order. She says that she}

terminated the services of her counsel in 2007 prior to the defended hearing because she thought he was linked to a group of people who were harassing her. When she sought to be represented by new counsel, she quickly came to the conclusion that they, too, were part of the same group. Alternatively, those counsel declined to represent her after she told them about her beliefs. She says that she abandoned her appeal in 2007 because she was not confident of her ability to represent herself in this Court, and she could not find counsel that she trusted.

[5] Ms Mika says, however, that she never gave up protesting against her conviction. She says she made numerous efforts during 2009 and 2010 to draw her plight to the attention of many persons in positions of high authority. These included the Commissioner of Police, the Ombudsman, the Independent Police Complaints Authority, her Minister of Parliament and the Minister of Justice.

[6] Ms Mika explains that she now understands the illness from which she suffers. She remains extremely concerned at the fact that she has been convicted on these charges and is determined that this Court should look into the circumstances in which they were entered.

[7] Having regard to the matters contained in Ms Mika’s affidavit I am satisfied that, notwithstanding the passage of time, it is appropriate in the present case to grant leave to appeal out of time. My decision on that point is also based largely on my conclusion that the issue she wishes to raise on appeal has significant merit.

Grounds of appeal

[8] Originally Ms Mika filed a notice of appeal containing a wide-ranging attack on her convictions. Recently, however, she has retained the assistance of experienced counsel, and he has been able to helpfully refine the sole issue to be determined on appeal. This is whether Ms Mika’s mental state at the time she first appeared before the Court ought to have brought into play the provisions of the Criminal Procedure (Mentally Impaired) Persons Act 2003 (“the Act”).

[9] In order to understand this issue, it is necessary to describe the events that led both to the charges being laid and the convictions being entered.

Factual background

[10] All of the charges arise out of an incident that occurred at approximately

4 am on the morning of 8 September 2006. On that date, a police patrol saw Ms Mika at the intersection of Great King Street and Frederick Street in Dunedin. She attracted their attention by virtue of the fact that she was pushing a supermarket trolley. The police had been experiencing a particular problem at that time with persons removing trolleys from supermarkets and using them for other purposes. For that reason they decided to investigate why she was on the streets with a supermarket trolley at such an unusual hour.

[11] As they approached Ms Mika, however, they saw her make what they took to be an obscene gesture directed towards them. This strengthened their desire to speak to Ms Mika and they then stopped their patrol car and approached her. Ms Mika was immediately abusive towards the officers. She swore at them loudly, and they described her behaviour as being out of control. Their warnings to her to settle down went unheeded, and they felt they had no option but to arrest her for disorderly behaviour. Ms Mika would not identify herself, and when one of the officers tried to look into her handbag to obtain some form of identification, Ms Mika struck her.

[12] Ms Mika’s behaviour continued to deteriorate to the point where she had to be restrained. As the officers attempted to restrain her, Ms Mika scratched one of them on the cheek. They then placed her in the rear of the police car and drove back to the police station. During the journey Ms Mika continued to struggle, and spat at the driver of the vehicle, hitting him on the back of the head. When they arrived at the police station and Ms Mika was getting out of the police car, she spat at this officer full in the face.

[13] Although this was not the subject of evidence at the defended hearing, it is clear from material on the Court file that Ms Mika refused to have her fingerprints

and photograph taken at the police station. This apparently led to a further charge being laid against her, but the charge was subsequently withdrawn by the police.

[14] Ms Mika remained in custody until 9 am on 8 September 2006, when she was brought before the Court. By this stage, the police had become sufficiently concerned about Ms Mika’s behaviour to involve Mr Jeff Withington, the Court Liaison Forensic Nurse. He sent a letter to the Court dated 8 September 2006 in the following terms:

Presiding Judge

Dunedin District Court

Re: Fa’aalu Mika

D.O.B. 5/10/1967

I have assessed the above at the request of Police this morning relating to concerns regarding her presentation when refusing to provide fingerprints and a photograph.

Ms Mika has no known history of mental illness or contact with Mental

Health Services.

On assessment I found Ms Mika to be expressing a complexity of ideas about being harassed and abused by a wide variety of people such as Deans of more than one University, the police, and certain political figures. There appears to be a paranoid element that would benefit from further assessment.

_{Recommendation}

Ms Mika attends the Emergency Psychiatric Service following court for a full mental state assessment.

Yours sincerely

J. Withington

JEFF WITHINGTON RN ACTING COURT LIAISON

[15] The Court file does not reveal whether or not the letter reached the Judge on

8 September, but Mr Withington sent a further letter to the Court on 12 September

2006. In this he said:

12/09/06

To The Presiding Judge Dunedin District Court Dunedin

Re: Fa’aalu Mik a

_{D.O.B. 05.10.1967}

The attached letter dated 8/9/06 was to be handed to the court for 2.15pm on that day in respect of the above as the matter had been stood down to allow a mental health screening to take place. Unfortunately the court proceedings commenced earlier at 2 pm and the matter was called and dealt with before it was possible to place the letter on the court file, despite the duty solicitor having knowledge that a screening assessment had taken place and that the letter was being prepared.

A great deal of effort and organisation was employed to facilitate a further medical assessment of Ms Mika at the Emergency Psychiatric Service as in my opinion Ms Mika is not in a position to recognise her state of unwellness and therefore at this stage will not voluntarily attend for such an assessment. One of the reasons for the establishment of the forensic court liaison nurse role in conjunction with the judicial system was to enable early assessment and identification of mental illness along with the ability to redirect persons with suspected mental illness in the appropriate route for further assessment.

I consider that it is appropriate the court should receive this updated letter to explain the presence of the attached letter on file and to recognise that Ms Mika is likely to be suffering from a major mental illness and an opportunity was missed to provide a medical assessment to afford her access to appropriate treatment.

Yours sincerely

J. Withington RN

Acting Court Liaison Nurse

[16] Again, there is no way of knowing from the Court file whether the second letter was brought to the attention of the presiding Judge on 12 September, or at any other date thereafter. The Court record after 8 September 2006 simply notes a series of remands through to the defended hearing that was ultimately held on 29 and 30

August 2007.

[17] Ms Mika was initially represented by the Duty Solicitor, but a short time after her first appearance she instructed Mr Logan, an experienced defence counsel in Dunedin. He then represented her at subsequent Court appearances and in correspondence with the police until approximately February 2007, when Ms Mika dispensed with his services. There is no way of knowing whether Mr Withington’s two letters were ever brought to Mr Logan’s attention. I suspect, however, that they were not. I have no doubt that a counsel of Mr Logan’s experience would immediately have sought a full psychiatric assessment once he read the letters.

[18] In this, he would no doubt have been supported fully by the police. Counsel for the police advised me today that one of the officers who arrested Ms Mika expressed concern in several internal memoranda about Ms Mika’s mental stability on the night she was arrested. She also advised me that there is material on the police file suggesting that, if Ms Mika had been prepared to undertake therapeutic assessment and treatment, the charges may have been dropped.

[19] Ms Mika did not help herself during this period, because she steadfastly refused to accept that she suffered from any form of mental illness. Indeed, her perception that this was the case persisted through to the defended hearing on 29 and

30 August 2007, and the sentencing hearing on 1 October 2007.

[20] Given Ms Mika’s strong belief that she was mentally well, it is hardly surprising that Mr Logan was not made aware of any issue in this regard. Her instructions to him were no doubt that she was fully competent to provide him with instructions in relation to the defence of the charges.

[21] By July 2007, however, the position had deteriorated to the point where Ms Mika was subject to a compulsory treatment order. She was subject to that order when she defended herself in the hearing before Judge McMeekan on 29 and 30

August 2007.

Submission

[22] Counsel for Ms Mika submits that justice has miscarried on this occasion because, through nobody’s fault, highly relevant material expressing concern about Ms Mika’s mental state at the time of the offending was not made available to the Court. Had that occurred, one of several results may have followed.

[23] First, the police may have elected to withdraw the charges provided Ms Mika was prepared to engage in full psychiatric assessment and therapeutic intervention. Secondly, Ms Mika’s counsel could have invoked the procedures set out at ss 7 to 15 of the Criminal Procedure (Mentally Impaired) Persons Act 2003. Thirdly, counsel for Ms Mika could have given consideration to obtaining a psychiatric assessment to

determine whether she had a defence to the charges that she faced based on her mental state at the time of the alleged offending. Unfortunately, however, none of these options was open because of the fact that neither Mr Logan nor the Court was aware of the issue that had arisen.

Decision

[24] I take the view that this submission has merit. The very nature of the alleged offending suggests that Ms Mika was subject to a severe form of mental instability as at 8 September 2006. This is confirmed by the observations of the police following her arrest. It is further substantiated by Mr Withington’s observations on the same morning. Had the Court been aware of her mental instability at that time, I have no doubt that matters would have taken a very different course.

[25] As a result, I am satisfied that the convictions should not stand. I therefore quash the convictions and the fines imposed on Ms Mika on 1 October 2007.

Disposition

[26] The remaining issue is whether I should remit the informations to the District Court for rehearing. I have reached the view that that would be inappropriate to take that course in the present case for several reasons.

[27] First, the offending is now historic and, of its type, was at a relatively low level. Secondly, I have no doubt that it was driven by the mental disorder from which Ms Mika suffered at the time. Thirdly, she has now been subject to treatment and recognises the problem. Her life has moved on and she recognises that her illness will continue to need treatment. In those circumstances, I am satisfied that the interests of justice will be served if matters are left to stand as they presently are.

[28] For that reason I make no direction that the charges are to be referred back to the District Court for rehearing.

Lang J

Solicitors:

Crown Solicitor, Dunedin

Counsel:

J Takas

---

[1] _{New Zealand Police v Mika DC Dunedin CRN 6012017728-7731, 30 August 2007.}
[2] _{Ibid, 1 October 2007.}

[3] See eg Cleggs Ltd v Departmet of Internal Affairs HC Auckland M1032/84, 5 September 1984 at p

2.