Henare v Police [2014] NZHC 1964 (20 August 2014)

Last Updated: 21 October 2014

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2014-485-000040 [2014] NZHC 1964

KUPA TUROA HENARE

v

_{NEW ZEALAND POLICE}

Hearing:	19 August 2014
Counsel:	N Chisnall and C Ross for Appellant M J Ferrier for Respondent
Judgment:	20 August 2014

_{JUDGMENT OF WILLIAMS J}

Introduction

[1] Mr Henare, now aged 25, pleaded guilty to one charge of assault with intent to injure¹ against a Corrections Officer on 4 November 2012, while he was a serving prisoner at Rimutaka Prison. Mr Henare was sentenced by Judge Butler on 4 April

2013 to 13 months’ imprisonment cumulative on his existing sentence.

[2] Mr Henare now appeals that conviction, out of time, on the basis that a miscarriage of justice occurred because he was not fit to plead to the charge at the time.

[3] Given the date of the charges, this appeal is governed by the appeal provisions of the Summary Proceedings Act 1957.

¹ _{Pursuant to s 193 of the Crimes Act 1961.}

HENARE v NEW ZEALAND POLICE [2014] NZHC 1964 [20 August 2014]

Background

[4] Counsel for Mr Henare says he first came into contact with Mr Henare was on the day he was sentenced (4 April 2013). The only information about Mr Henare available to counsel at that time was the summary of facts relating to the offence and Mr Henare’s previous conviction history. Counsel advised Mr Henare to seek further remand without a plea.

[5] Mr Henare wished to conclude matters on that day. Against the advice of counsel, Mr Henare waived his entitlement to a pre-sentence report and pleaded guilty to the charge. Judge Butler then proceeded to pass sentence.

[6] On 16 April 2013, counsel received a telephone call from Dr James Gardiner, a psychiatrist at the Mason Clinic in Auckland who said he had been treating Mr Henare for schizophrenia since March 2013. Dr Gardiner advised that prison authorities had this information, and failed to provide it to the court.

[7] On 9 October 2013, Mr Henare instructed counsel he wished to appeal his conviction. The appeal was filed on 19 May 2014, a delay occurring (apparently) due to Legal Aid misplacing Mr Henare’s application.

[8] Mr Henare consented to counsel consulting with Dr Gardiner, and obtained his clinical notes relating to Mr Henare’s treatment in March and April 2013. Those notes confirm Mr Henare received treatment for schizophrenia during that period. There is no information relating to the date on which the assault occurred, because Mr Henare was in Rimutaka prison at that time.

[9] On 4 July 2014, Kós J granted Mr Henare’s application that a health assessor’s report be prepared pursuant to s 38(1)(a) and (b) of the Criminal Procedure (Mentally Impaired Persons) Act 2003 (the CPMIP Act), to address whether Mr Henare was insane within the meaning in s 23 of the Crimes Act on

4 November 2013 and whether he was fit to plead on 4 April 2013 in terms of s 14 of the CPMIP Act.

The health assessor’s report

[10] The s 38 report was prepared by forensic psychiatrist Dr Tina Heads, and was received by this Court on 8 August 2014.

[11] In her report Dr Heads concluded that Mr Henare suffers from paranoid schizophrenia and has displayed clear symptoms of mental health problems since

2011.

[12] In relation to the assault, she considered that the length of time since the incident and the lack of information at the relevant time make it difficult to be sure about the availability of an insanity defence. She noted that Mr Henare’s account was that he assaulted the prison officer because he was annoyed at prison management and was being encouraged by other inmates. She concluded that he was mentally ill at the time of the offending, but would not on the balance of probabilities be considered insane. Nonetheless Dr Heads felt that his mental illness would have impacted on his judgment and thinking at the time.

[13] Dr Heads considered that there is good evidence that Mr Henare was “floridly psychotic” leading up to 4 April 2013, with a slight improvement after that date. She said that although it is difficult to assess fitness to plead retrospectively, she considered that Mr Henare would not have been able to plead or instruct counsel. She concluded that he was not fit to plead or to stand trial on 4 April 2013. This would not necessarily have been evident to non-mental health professionals if they did not have any information about his mental health state.

Submissions

[14] Counsel for the appellant argues that the conviction should be quashed because there is, on the basis of the psychiatrist’s report, a real risk that the appellant was unfit to plead at the time he pleaded guilty, was convicted and sentenced.

[15] The appellant accepts that the effect of the CPMIP Act regime is that it is not open to me on a general appeal (as opposed to an appeal under that Act) to reach my own view on that question, even if there was sufficient evidence to do so. The

appellant submits that the matter must be returned to the District Court for the process under the CPMIP Act to be undertaken.

[16] The Crown responsibly agrees that this is appropriate in the circumstances. Counsel rightly notes that Dr Heads’ report relates to the appellant’s mental state at the time of his appearance in the District Court. No opinion is expressed as to his fitness to plead or stand trial at the present time.

[17] I must of course reach my own view on the appeal, and while the parties’ general agreement on approach is relevant, it is not determinative. In this case however, I agree with counsel that:

(a) there is an appreciable risk that at the time of his plea, the appellant was mentally unwell and therefore unfit to plead;

(b) this possibility was not brought to the attention of the Court receiving the plea;

(c) if it had been, the progress of the case at that point is likely to have taken an entirely different turn including, a requirement for assessments to be made under the CPMIP Act; and

(d) a miscarriage of justice occurred accordingly and the matter must be remitted to the District Court for further consideration under that Act.

[18] Beyond that, it is unnecessary for me to venture.

Conclusion

[19] For the above reasons, the appeal is allowed. The conviction and sentence are quashed and the matter remitted back to the District Court for further consideration under the CPMIP Act. An update will be needed on Dr Heads’ report and a second report from a qualified health assessor will also be required. Time will be of the essence as, I am advised, the appellant will soon begin to serve the sentence the subject of this successful appeal.

_{Williams J}

Solicitors:

Public Defence Service, Wellington

Crown Solicitor, Wellington