R v E [2015] NZHC 2646 (28 October 2015)

Last Updated: 16 November 2015

ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF DEFENDANT PURSUANT TO S 200 CRIMINAL PROCEDURE ACT 2011.

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2014-090-001416 [2015] NZHC 2646

THE QUEEN

v

_E

Hearing:	27 October 2015
Appearances:	J L S Shaw for Crown T J Darby for Defendant
Judgment:	28 October 2015

_{JUDGMENT OF COURTNEY J}

This judgment was delivered by Justice Courtney on 28 October 2015 at 4.30 pm

pursuant to R 11.5 of the High Court Rules

Registrar / Deputy Registrar

_{Date............................}

R v E [2015] NZHC 2646 [28 October 2015]

Introduction

[1] E is facing one representative charge of being party to attempted sexual violation by rape¹ and one representative charge of being party to sexual violation by unlawful sexual connection.² The person charged as principal is K, a friend of E. The complainant is E’s daughter, who was aged between 9 and 13 at the time of the offending. It is alleged that E facilitated and encouraged the complainant to acquiesce in sexual activity with K.

[2] Both E and K are of limited intellect and both sustained head injuries as children. Following hearings under ss 9 and 14 of the Criminal Procedure (Mentally Impaired Persons) Act 2009 (CPMIP) K has been found to be unfit to stand trial. He is presently awaiting assessment to determine the most suitable method of dealing with him.³ The same process is underway in relation to E.

[3] Unusually, E had already pleaded guilty to the charges before the CPMIP process was triggered. However, a report obtained under s 38(1)(c) and (d) raised serious issues about E’s fitness to plead and to instruct counsel, leading to the direction for a s 9 hearing rather than sentencing. This process is permissible

notwithstanding the guilty plea.⁴

[4] Under s 9 a court may not find a defendant is unfit to stand trial unless satisfied, on the balance of probabilities, that the evidence against him or her is “sufficient to establish that the defendant caused the act or omission that forms the basis of the offence with which the defendant is charged”. Section 13 provides that if the Court is satisfied as to the matters specified in s 9 it must proceed to determine the matters specified in s 14. Section 14 requires the Court to obtain the evidence of two health assessors as to whether the defendant is mentally impaired and, if satisfied on that point, record that finding and allow the parties to be heard as to

_{whether the defendant is unfit to stand trial.}

¹ _{Crimes Act 1961, ss 129(1) and (66(1).}

² _{Crimes Act 1961, s 128(1) and s 66(1).}

³ _{Criminal Procedure (Mentally Impaired Persons) Act 2009, s 23(4) and 23(5).}

⁴ R v Komene [2009] NZHC 1347; Dalley v R [2009] NZCA 419.

[5] At a hearing before me on 27 October 2015 I was satisfied that E had caused the acts that formed the basis of the offences with which she is charged and directed a report under s 38 for the purposes of a hearing under s 14. This decision contains my reasons.

Section 9 hearing

[6] The s 9 hearing proceeded on an uncontested basis. The complainant had given two evidential interviews and the transcripts of those were before me by consent. Mr Darby, for E, did not seek to either cross-examine or call evidence.

[7] In her evidential interviews the complainant described K coming to her house when her father was out. E would “tell him to take me to the room” where K would take off her clothes and then take off his own clothes. She described him kissing her and attempting to put his penis inside her, how she would tell him it had gone in although it had not. She also described an occasion when K licked her vagina. The complainant described K giving her money on these occasions which she gave to E.

[8] The complainant described E being angry with her if she resisted or complained because if the complainant did not do what K wanted he would not give her money. Sometimes E threatened the complainant with violence if she did not co- operate. There were some occasions when E did hit the complainant, including with a broomstick. This state of affairs continued until the complainant was 13 and finally told a friend’s mother, who called the police.

[9] I am satisfied from the statements made by the complainant in her evidential interviews that E did acts that facilitated, encouraged and assisted K to engage in sexual activity with the complainant. These act included telling the complainant to go into the room with K, telling her take off her clothes when he asked her to do so, threatening the complainant with violence and, on some occasions, actually inflicting violence on her.

Next Step

[10] Having satisfied myself as to E’s involvement in the acts forming the basis for the charges the next step is to require an assessment report under s 38(1)(a). A representative of forensic services was present at the hearing and indicated that a report could be obtained by 7 December 2015, which would coincide with the next hearing of the matter in relation to K. I therefore:

(a) Directed that a report be provided under s 38(1)(a) for the purpose of assisting the Court to determine whether E is unfit to stand trial;

(b) Varied E’s bail conditions so as to require her to attend an interview at the Mason Clinic at 10.30 am on 20 November 2015 for the purposes of facilitating the s 38 report. Mr Darby’s offices will make the necessary arrangement.

Name Suppression

[11] I made interim orders for the suppression of the names and identifying details of E and the complainant. Mr Darby signalled that an application for permanent name suppression is likely to be made. I note that there is already an order made

_{under s 202 of the Criminal Procedure Act 2011 in respect of K.}

P Courtney J