R v Komene [2013] NZHC 1347 (7 June 2013)

Last Updated: 5 November 2013

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2012-090-002641 [2013] NZHC 1347

THE QUEEN

v

JACOB KOMENE

Hearing: 30 May 2013

Counsel: K Lummis for the Crown

J Corby for the accused

Judgment: 7 June 2013

_{JUDGMENT OF ASHER J}

This judgment was delivered by me on Friday, 7 June 2013 at 4pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors:

Crown Solicitor, Auckland. J Corby, Auckland.

R v KOMENE [2013] NZHC 1347 [7 June 2013]

Introduction

[1] On 30 May 2013, I heard an application under s 14 of the Criminal Procedure (Mentally Impaired Persons) Act 2003 in relation to whether Mr Komene was unfit to stand trial.

[2] I determined that Mr Komene was fit to stand trial. I now set out the reasons for my decision.

A home invasion and attack

[3] At about 9.30 pm on 18 April 2012, Mr Komene entered a residential address in Glendene by forcing open the front window. Once inside he came across the resident, 95 year old Mr Alfred Chant. Mr Komene advanced on him and struck him hard in the face with a knife leaving a two centimetre laceration near his ear, severing a nerve and an artery, and fracturing Mr Chant’s jaw. Mr Komene then left the house. Mr Komene was charged with aggravated burglary, and attempted murder or wounding with intent to cause grievous bodily harm.

[4] On 10 October 2012, Mr Komene entered pleas of guilty to counts of aggravated burglary and wounding with intent to cause grievous bodily harm.¹ The alternative charge of attempted murder will, in due course, be dismissed.

[5] On entering a plea, Woolford J remanded Mr Komene in custody for sentence. He also directed that reports under s 88(2) of the Sentencing Act 2002 be prepared in relation to the possibility of a sentence of preventive detention.

[6] In the course of those s 88(2) reports being prepared, questions arose as to Mr Komene’s fitness to enter a plea to the offences. The procedure set out in the Criminal Procedure (Mentally Impaired Persons) Act 2003 (the CPMIP Act) was invoked.

[7] On 4 December 2012, Mr Komene appeared before Duffy J who recorded that the CPMIP Act procedures were being followed. The first step of that procedure

was for her to make a determination under s 9 of the CPMIP Act concerning Mr Komene’s involvement in the offences, on the balance of probabilities. Mr Corby for Mr Komene, who had reviewed all the disclosed materials, considered that those materials supported the summary of facts and that the summary was accurate. Duffy J was satisfied that the test under s 9 was met.² She recorded that it was necessary to proceed to a s 14 hearing. That hearing has now taken place before me.

Approach to an application following a guilty plea, prior to sentence

[8] The question whether Mr Komene was fit to stand trial arose after the entry of guilty pleas and prior to sentence. Two preliminary issues arise from this sequence.

When a finding of unfitness may be made when there are guilty pleas entered or intended to be entered

[9] Section 7 provides:

7 When finding of unfitness to stand trial may be made

(1) A court may make a finding under this subpart that a defendant is unfit to stand trial at any stage after the commencement of the proceedings and until all the evidence is concluded.

(2) Subsection (1) is subject to section 9. (emphasis added.)

[10] Here proceedings have been commenced, but it cannot be said strictly that “all the evidence is concluded” as there has been no evidence, save for that which relates to fitness. Both Ms Lummis for the Crown and Mr Corby for Mr Komene submit that the Court has jurisdiction to make an order under s 7.

[11] The phrase in s 7(1) “... until all the evidence is concluded” appears to

presuppose a trial in which evidence is given. The purpose can be assumed to be to

preclude issues of fitness being raised after the conclusion of evidence and prior to verdict.

[12] When there is a guilty plea or a defendant seeks to enter such a plea, the last clause in s 7(1) can be seen as otiose. To limit unfitness to plead to trials where there is evidence would be to take away the important alternative resolution of criminal proceedings where a guilty plea is entered, and contrary to the purposes of the Act. Those purposes include providing to the courts appropriate options for the detention,

assessment and care of defendants and offenders with an intellectual disability.³ It

would run against this stated purpose if a court was unable to determine fitness under the Act when the option is to enter a plea of guilty, rather than defend the charges.

[13] I interpret s 7(1) as applying when, after the commencement of proceedings, the option is to enter a guilty plea. Such an approach is consistent with the robust approach to jurisdiction adopted by the Court of Appeal in McKay v R⁴ where it was stated that the courts will fill in a gap to make the legislation work, in that case by reading s 12(1) as allowing a s 9 hearing between committal and trial.⁵ Also, in Dalley v R,⁶ although the issue was not argued, the Court of Appeal appeared to have no difficulty with a court considering the issue of fitness to plead after guilty pleas.

[14] The discussion of s 7 by Professor Brookbanks in his recent text Competencies of Trial: Fitness to Plead in New Zealand supports this approach.⁷ He describes the Court’s ability to assess fitness at the sentencing stage as “a legitimate and necessary function of the courts where an offender lacks the mental capacity to participate meaningfully in the sentencing process.”⁸ Although noting that “strictly

_{speaking” s 7 does not anticipate post-guilty plea determinations,}⁹ _{he argues that it}

cannot be assumed safely that Parliament deliberately legislated to change the

_{common law position, given the potential for “unfairness or inconsistency with the}

³ _{Criminal Procedure (Mentally Impaired Persons) Act 2003, s 3(b).}

⁴ _{McKay v R [2009] NZCA 378, [2010] 1 NZLR 441.}

⁵ _{See also Ruka v R [2011] NZCA 404 at [19].}

⁶ _{Dalley v R [2009] NZCA 419.}

7. Warren Brookbanks Competencies of Trial: Fitness to Plead in New Zealand (LexisNexis, Wellington, 2011) at 311.

⁸ _{At 311.}

⁹ At 307.

New Zealand Bill of Rights Act 1990”.¹⁰ Such an approach is consistent with New Zealand legislation and case law prior to the CPMIP Act¹¹ and more recent Australian case law.¹²

[15] I note also that the authors of Adams on Criminal Law discuss uncertainties as to when issues of unfitness can be raised. It is clear that the issue cannot be raised during a trial after all evidence has been heard.¹³ It is observed that, at least in Australia, where in the course of sentencing an issue arises as to whether the accused may have been unfit to be tried and the issue was raised after plea, it can be heard.¹⁴

Distinction between fitness to plead and fitness to stand trial

[16] Another related interpretation issue arises. Unfit to stand trial is defined in s 4(1) as follows:

unfit to stand trial, in relation to a defendant,—

(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.

(emphasis added.)

[17] There can be a significant difference between a defendant’s ability to plead and a defendant’s ability to conduct a defence. It arises here. All of the experts agree that Mr Komene is fit to plead. They differ on whether Mr Komene would be able to adequately understand all developments in a trial, and be able to

_{communicate adequately with counsel for the purposes of conducting a defence. The}

¹⁰ _{At 310.}

¹¹ _{R v Skokolic [1929] NZLR 521 (SC) at 523.}

¹² _{R v Waszczuk [2011] NSWSC 212 at [20].}

¹³ Bruce Robertson Adams on Criminal Law (looseleaf ed, Brookers, Wellington, 2013) at

_CM7.01(2).

¹⁴ At CM7.01(2).

question arises whether a defendant, who is fit to determine whether to plead guilty and does so, must also be able to conduct a defended trial before the plea can be accepted. There is a difference between these two abilities.

[18] A defendant who wishes to plead guilty must be able to understand the implications of such a plea and the sentencing process. More specifically, that defendant must be aware of the nature of the charge and the facts that support the charge. The defendant must understand what defence, if any, could be run and crucially must understand the difference between pleas of guilty and not guilty. That defendant must understand the sentencing options that will arise following the plea of guilty and what they mean in practical terms. Without that level of understanding, it would be unfair on a defendant for a Court to accept the plea and convict that defendant and impose a sentence.

[19] However, this level of cognitive understanding may not involve the same demands as conducting a defence. To conduct a defence, additional skills are required. The defendant must be able to follow events as they arise through the trial, deal with the unexpected, and instruct counsel and make choices in response to developments in the trial. The defendant must be able to participate in decisions such as what is to be put to witnesses, what challenges should be made to evidence and whether the defendant should give or call evidence.

[20] I consider that a defendant can be held fit to plead and be sentenced, even if that defendant could not conduct a defence. I take into account the robust approach that has been taken to the interpretation of the difficult provisions of this part of the CPMIP, which is to make the legislation work.¹⁵ I have no doubt that where in the course of sentencing, an issue arises whether a defendant was fit to plead, the entirely hypothetical question of whether the defendant is able to conduct a defence can be put to one side. The only issue is the plea. I construe the phrase in para (a) “to conduct a defence” as including “to plead”. This interpretation is supported by

the use by Parliament of the word “includes”. The legislature has intended there to be a variety of aspects of the court process that might give rise to a finding of

_{unfitness, but they do not each need to be treated as separate elements of fitness.}

¹⁵ See [13] above.

[21] Such a conclusion is consistent with the conclusion of the Court of Appeal in

Britz v R where the distinction was accepted, and it was held: ¹⁶

Regarding the 2007/2008 offending, 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.

Is Mr Komene fit to plead?

[22] Since the entry of Mr Komene’s guilty plea, the following reports have been prepared and provided to the Court:

Three reports of Ms Sabine Visser dated 19 November 2012, 11 February

2013 and 30 April 2013.

Report of Dr James Gardiner dated 14 March 2013. Report of Dr Ian Goodwin dated 19 November 2012.

Affidavit of Dr Andrew Craig Immelman dated 2 May 2013.

Letter from Dr James Gardiner written in consultation with Ms Visser dated 23 May 2013.

[23] It is the detailed view of all of these experts that Mr Komene fully understands what he is charged with and the risk that he runs of a sentence of preventive detention. He understands the effect and consequences of a plea of guilty. He is able to communicate with counsel for the purpose of entering a plea. He can decide what defence, if any, could be open to him, and understands the difference between the concepts of guilty and not guilty. He understands the sentencing options and what would be involved should he be sentenced to preventive detention.

[24] I accept the views of these experts. I conclude that Mr Komene is fit to plead, and can be treated for the purposes of the Act, having pleaded guilty, as fit to

_{stand trial.}

¹⁶ Britz v R [2012] NZCA 606 at [113].

[25] However, in case I am wrong in that determination, I go on to determine whether indeed Mr Komene was able to conduct a defence or instruct counsel to do so, and communicate adequately with counsel for the purposes of conducting that defence.

Is Mr Komene fit to conduct a defence?

[26] As I have set out, all four of the health professionals agree that Mr Komene had sufficient capacity to consider the evidence against him and determine the most appropriate plea. However, there are differences between them as to whether Mr Komene is able to organise and maintain a defence if he enters a not guilty plea.

[27] As a starting point, it is to be noted that all four psychiatrists recognised that Mr Komene has a low IQ. There was a great deal of material in the affidavits concerning his IQ. While there is some variance in the figures, by and large it was agreed that Mr Komene has a full scale IQ on the WAIS-1V scale of 75, with a

95 per cent competence interval of 71–80.

[28] It is possible for a person to be diagnosed as having an intellectual disability when their IQ is just above 70 IQ points. The consensus of at least the majority of the experts appears to be that Mr Komene’s overall cognitive ability is just above that of an intellectual disability as defined by s 7 of the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003. All of the experts agree that Mr Komene has significant cognitive impairment, and needs assistance from a number of services.

[29] Ms Visser, a very experienced psychologist, is of the view that Mr Komene’s cognitive difficulties are such that he would be unable to remember and retain sufficient information to conduct his defence. He might be able to cope with the basic story-telling, but would have difficulties with other, more sophisticated aspects of the trial. He would lack the focus and concentration on language that would have enabled him to follow matters sufficiently.

[30] However, the three psychiatrists, Drs Gardiner, Goodwin and Immelman, do

not agree. In their view, Mr Komene’s undoubted intellectual deficit could be

adequately compensated by adaptation of the trial process. This could be done by there being more frequent breaks and communication between Mr Komene and his counsel. The possibility of there being a particular person whose duty it was to explain matters to Mr Komene was raised. There is also the prospect of shortened court days.

[31] All four of the experts backed up their views by very detailed assessments. I am grateful for them. However, I do not consider it necessary to traverse them in detail, as I have a clear view. The issue as to whether a person is unfit to stand trial must be considered in the context of the particular case, rather than in a vacuum. For instance, the mental facilities a defendant would need to understand and instruct counsel on a simple, short, one-incident case would be much less than if the case involved multiple charges and more complex facts.

[32] There is no doubt that Mr Komene could not conduct a defence or instruct counsel in a trial involving complex facts. However, this is not such a case. The facts are simple: a break-in, an encounter with another person and a single brutal stab to the face. The main issue that could have arisen at trial was whether Mr Komene could have had the necessary intention to kill required for attempted murder. There is no doubt about the other facts, but in any event, they are very simple.

[33] In this context, I consider that Mr Komene was able to conduct a defence and instruct counsel, providing there was adequate adaptation of the Court procedure for his slow comprehension and poor retention. I believe that these could have been provided.

[34] Thus, while I understand and respect Ms Visser’s reservations, I am of the firm view that given the simple nature of this proceeding and any defence that could be raised, Mr Komene’s obvious limitations do not warrant a finding of unfitness to stand trial. I conclude that Mr Komene is fit to stand trial, not only in the sense of being fit to plead, but also of being fit to conduct a defence.

Result

[35] I determine that Mr Komene is fit to stand trial. [36] Mr Komene is remanded in custody for sentence.

...................................

Asher J