Epere v Police [2022] NZHC 866 (29 April 2022)

Last Updated: 20 May 2022

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2021-404-175 CRI-2021-404-177 CRI-2021-404-178 CRI-2021-404-179 CRI-2021-404-180 CRI-2021-404-181 CRI-2021-404-182 CRI-2021-404-202 CRI-2021-404-203 [2022] NZHC 866

BETWEEN	RAYMOND WILLIAM EPERE Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing:	21 March 2021
Counsel:	C G Wright for Appellant I L M Archibald for Respondent
Judgment:	29 April 2022

JUDGMENT OF BREWER J

This judgment was delivered by me on 29 April 2022 at 11.30 am

Registrar/Deputy Registrar

Solicitors:

Public Defence Service (Auckland) for Appellant Meredith Connell (Auckland) for Respondent

EPERE v POLICE [2022] NZHC 866 [29 April 2022]

Introduction

• [1] Mr Raymond Epere applies for leave to appeal his entire criminal history of convictions. Mr Epere has 16 convictions entered in the period between 2001 and 2013. The appeal is brought on the basis that a miscarriage of justice has occurred. Mr Epere is diagnosed as having an intellectual disability. He has had this disability since childhood. It now appears unlikely that he has ever been fit to stand trial or plead in respect of any of his previous charges.

• [2] The appeal is filed out of time. Mr Epere therefore seeks an extension of time for filing the notice of appeal. The respondent accepts that leave to appeal should be granted. It also agrees that the appeal against convictions should be allowed.

• [3] I will address the application for leave before turning to the substantive appeal.

Background

• [4] Between 2001 and 2009, Mr Epere probably pleaded guilty to 10 charges, all for relatively minor offending.¹ This included offences such as consuming cannabis, failing to answer bail and unlawfully taking a motor vehicle. There is also one charge of male assaults female.

• [5] In 2011, Mr Epere was found unfit to stand trial for the first time. This was in respect of charges of theft, burglary, possession of a weapon, receiving property (under

$500) and failing to answer bail.

• [6] Nevertheless, Mr Epere was convicted of further offences in 2012 and 2013. The further offending involved charges of trespassing, disorderly behaviour, breaches of a local liquor ban, failing to answer bail and possession of instruments for the use of cannabis. It appears that the issue of fitness to stand trial was not raised. Mr Epere pleaded guilty to all the charges.

¹ Due to a lack of documentation it is not possible to determine conclusively if Mr Epere in fact entered guilty pleas to all charges or was convicted after a defended hearing. However, the small space of time between the offence and sentence date for some of Mr Epere’s convictions indicates that he likely entered guilty pleas. Mr Epere also told one expert that he always pleaded guilty to charges.

• [7] In 2020, Mr Epere was found unfit to stand trial for a second time. On this occasion his offending was more serious. It involved a charge of assault with intent to injure.

• [8] Following the finding in 2020 that Mr Epere was again unfit to stand trial, counsel for Mr Epere became aware that it was highly unlikely he had ever been fit to stand trial in respect of any of his previous criminal charges.

Leave to appeal

• [9] The notice of appeal was filed on 14 April 2021.

• [10] The appeal is advanced under s 115 of the Summary Proceedings Act 1957, in respect of proceedings commenced before 1 July 2013, and under s 229 of the Criminal Procedure Act 2011, in respect of proceedings commenced after 1 July 2013. The former Act required a notice of appeal to be filed within 28 days after the date of sentencing. The latter Act requires a notice of appeal against conviction to be filed within 20 working days after the date of sentence for the conviction appealed against.

• [11] The Court may extend the time allowed for filing the notice of appeal.² The touchstone will be the interests of justice in the particular case.³ This involves balancing a range of factors including:⁴

... the wider interests of society in the finality of decisions, the strength of the proposed appeal, whether the liberty of the subject is involved, the practical utility of any remedy sought, the extent of the impact on others affected and on the administration of justice, and any prejudice to the Crown.

• [12] As noted above, the respondent accepts that an extension of time to file the notice of appeal is appropriate. Extensions of time have been granted in similar cases.⁵

² Summary Proceedings Act 1957, s 123(1); and Criminal Procedure Act 2011, s 231(3).

³ See R v Knight [1998] 1 NZLR 583 (CA) at 587; and R v Lee [2006] NZCA 60; [2006] 3 NZLR 42 (CA) at [96]– [99].

⁴ Lee, above n 3, at [99].

⁵ See Christie v Police [2018] NZHC 2149; and Lawler v R [2013] NZCA 308.

• [13] The merits of this appeal weigh heavily in favour of granting leave. The age and number of convictions do not materially alter the analysis.⁶ Nor do the other factors identified above.⁷ Despite the societal need for finality in litigation, I consider that the interests of justice in a case where it is said that convictions should never have been entered because of lack of capacity favour granting an extension. I grant leave.

The appeal

• [14] I must allow the appeal if I am satisfied that a miscarriage of justice has occurred for any reason. A miscarriage of justice is also an available ground for appealing a conviction entered prior to the commencement of the Criminal Procedure Act.⁸ The same test will apply.⁹

• [15] Section 232(4) of the Criminal Procedure Act defines a “miscarriage of justice” as any error, irregularity, or occurrence that has created a real risk that the outcome of the trial was affected or has resulted in an unfair trial or a trial that was a nullity. A “trial” is defined to include a proceeding in which the appellant pleaded guilty.¹⁰ However, the grounds for appealing a guilty plea must be exceptional.¹¹ A conviction cannot be impugned where the appellant fully appreciated the merits of the position and made an informed decision to plead guilty.

• [16] On the other hand, a miscarriage of justice will be found where it is demonstrated that the appellant was unfit to stand trial at the time the convictions were entered.¹² This is because it is a fundamental feature of the criminal justice system that “only those who pass the threshold of being fit to stand trial are subjected to all that is entailed in responding to criminal charges”.¹³

⁶ I note that the convictions in this case are fewer in number, and more recent, than the convictions in Christie, above n 5.

⁷ Lee, above n 3, at [99].

⁸ See, for example, Miller v Police [2017] NZHC 2183.

⁹ CG v Police [2021] NZHC 645 at [17].

¹⁰ Criminal Procedure Act, s 232(5).

¹¹ R v Le Page [2005] NZCA 67; [2005] 2 NZLR 845 (CA) at [16] endorsed by the Supreme Court in Wilson v R [2015] NZSC 189, [2016] 1 NZLR 705 at [96] and [97].

¹² See Cumming v R [2008] NZSC 39, [2010] 2 NZLR 433.

¹³ Nonu v R [2017] NZCA 170 at [24].

• [17] While an appellate court is not empowered to make a formal finding of unfitness to plead or stand trial on a general appeal, that does not prevent the court from determining whether a miscarriage of justice has occurred by reason of a mental disorder from which the appellant was suffering at the time of trial.¹⁴ That is the central question on this appeal.

Fitness to stand trial

• [18] The assessment of whether a miscarriage of justice occurred when Mr Epere’s convictions were entered must be determined in accordance with the law that was in force at the relevant time.¹⁵ As his convictions span from 2001 to 2013, two separate regimes must be considered: the Criminal Justice Act 1985 (CJA) and the Criminal Procedure (Mentally Impaired Persons) Act 2003 (CPMIP Act).

Pre-2004 convictions: the CJA

• [19] Prior to 1 September 2004, the CJA governed the requirements of fitness to stand trial. A person was considered unfit to stand trial if they were “under disability” which in turn required the person to be “mentally disordered”.¹⁶ The definition of a “mental disorder” was the same as that under the Mental Health (Compulsory Assessment and Treatment) Act 1992 which expressly excluded “intellectual disability”.¹⁷

• [20] It was therefore possible under the CJA for a person who was intellectually disabled, but did not meet the definition of being mentally disordered, to not meet the criteria for being unfit to stand trial.

• [21] This raises a question about the Court’s jurisdiction to consider an appeal against convictions entered prior to the enactment of the CPMIP Act on the basis of a miscarriage of justice when that is said to arise as a consequence of the appellant’s intellectual disability. The approach adopted in other cases has been to proceed on the

¹⁴ Cumming, above n 12, at [13].

¹⁵ Lawler, above n 5, at [7].

¹⁶ Criminal Justice Act 1985, ss 2 (definition of “mentally disordered”) and 108.

¹⁷ Mental Health (Compulsory Assessment and Treatment) Act 1992, ss 2 (definition of “mental disorder” and “mentally disordered”) and 4(e).

basis that the Court has inherent jurisdiction to consider such appeals, notwithstanding that intellectual disability was expressly excluded as a basis for considering a defendant unfit to stand trial under the statutory regime in force at the time those convictions were entered.¹⁸ The respondent accepts that such a course remains open to the Court in this case.

• [22] I adopt that approach.

Post-2004 convictions: the CPMIP Act

• [23] The CPMIP Act came into force on 1 September 2004. Parliament’s intention with the CPMIP Act was to broaden the qualifying criteria for assessing whether or not a defendant is unfit to stand trial by including persons who are mentally impaired through, for example, an intellectual disability.¹⁹

• [24] Section 4 of the Act defines “unfit to stand trial” in the following terms:

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.

• [25] While “mental impairment” is not defined in the CPMIP Act, a number of criteria have been held to inform the assessment of fitness to stand trial, including whether the defendant is capable of:²⁰

(a) understanding what it is that they have been charged with;

¹⁸ See CG, above n 9, at [27]; Christie, above n 5, at [35]; and Lawler, above n 5, at [11].

¹⁹ Nonu, above n 13, at [25].

²⁰ See M (CA 424/2019) v R [2019] NZCA 461 at [10]; and Nonu, above n 13, at [27]. This list of factors was originally drawn from R v Presser [1958] VicRp 9; [1958] VR 45 (SC) at 48 and adopted by Baragwanath J in P v Police [2006] NZHC 1681; [2007] 2 NZLR 528 (HC) at [43].

(b) pleading to the charge and exercising their right of challenge;

(c) understanding that the proceedings would be an inquiry as to whether or not they did what they were charged with;

(d) following, in general terms, the course of the proceeding before the Court;

(e) understanding the substantial effect of any evidence given against them;

(f) making a defence to, or answering, the charge;

(g) deciding what defence they would rely on;

(h) giving instructions to their legal representative (if any); and

(i) making their version of the facts known to the Court and to their legal representative, if any.

• [26] Evaluating a defendant’s ability to take part in a trial by reference to these factors is not a mechanical exercise.²¹ The Court of Appeal in Nonu v R observed that:²²

[29] An inquiry into a defendant’s fitness to stand trial, however, involves more than an assessment of whether or not the defendant can participate in his or her trial by simply performing relevant trial functions. A defendant must also have the capacity to participate effectively in his or her trial. This involves an assessment of the defendant’s intellectual capacity to carry out relevant trial functions. The reason for the need to inquire into the defendant’s capacity to participate effectively in his or her trial is that the principles we have explained above are not honoured in cases where, for example, a defendant superficially appears to participate in his or her trial but in reality is, because of intellectual disability, nothing more than a bystander.

• [27] The inquiry is a contextual one which recognises that:²³

²¹ M (CA 424/2019) v R, above n 20, at [11].

²² Nonu, above n 13 (footnotes omitted).

²³ At [31] (footnotes omitted).

... a defendant may have the capacity to participate effectively in a simple criminal proceeding in which, for example, they plead guilty to shoplifting, but cannot participate effectively in more complex proceedings in which they need to process information in real time and communicate effectively in order to advance their defence.

• [28] I must determine whether a miscarriage of justice has occurred by evaluating the evidence of Mr Epere’s longstanding intellectual disability against these principles.

The expert reports and medical evidence

• [29] Mr Epere is the subject of five psychological reports before the Court. I will briefly describe the contents of each report before summarising what in my view are the key conclusions to be drawn in respect of Mr Epere’s intellectual disability and fitness to stand trial.

Report by Dr Mhairi Duff dated 9 September 2010

• [30] Dr Duff’s assessment indicated “quite a profound level of problems” including that Mr Epere had little understanding of his benefits, his financial affairs or how to manage himself. It indicated that he was unlikely to be able to live independently.

• [31] With respect to factors indicating Mr Epere’s fitness to stand trial, Dr Duff’s views were:

(a) Mr Epere could identify most of his charges but was unable to identify when the events allegedly occurred.

(b) He seemed to have very little understanding of the pleas available and what they meant. He was unable to describe what a guilty plea meant and described a not guilty plea as meaning that he would not “get sent to jail”. He had some understanding of right and wrong.

(c) Mr Epere had very little understanding of the purpose of the court proceedings and what sort of material might be brought in evidence against him.

(d) Mr Epere did not have a good understanding of the court process. He understood that his lawyer was there to assist him but had little understanding of the concept of instructions. He repeatedly stated that he needed to do what his lawyer told him to do.

(e) He had no idea of the possible defences that he may be able to pursue or how to choose between different defences.

• [32] Dr Duff found that Mr Epere appeared to have significant cognitive deficits likely to place him in the moderate range of intellectual disability. This was said to affect his long term memory, ability to gauge the passage of time and his ability to relay information.

• [33] Dr Duff was of the opinion that the court would be likely to find Mr Epere unfit to stand trial.

Report by Ms Sabine Visser dated 24 June 2011

• [34] Ms Visser administered a full scale WAIS-IV test in order to assess Mr Epere’s intellectual functioning and overall cognitive ability. Mr Epere’s overall cognitive ability was within the “extremely low” range of intellectual functioning and better than only 0.1 per cent of same-aged peers. His IQ was 49. This score was indicative of mild to moderate intellectual disability. Mr Epere scored in the “extremely low” range for verbal comprehension, perceptual reasoning, working memory and processing speed.

• [35] As to Mr Epere’s fitness to stand trial, Ms Visser noted that Mr Epere demonstrated a basic understanding of right and wrong but was not able to explain what guilty or not guilty meant. He indicated that he did have a lawyer but did not know how to get in touch with her. He stated that he did what his lawyer told him to do. He stated that he would never tell his lawyer what to do. He did not understand the nature or the purpose or the possible consequence of the court proceedings. His ability to communicate with his counsel would be “severely limited”.
• [36] Ms Visser was of the opinion that the court would be likely to find Mr Epere unfit to stand trial.

Report by Mr Jim van Rensburg dated 29 July 2020

• [37] Mr van Rensburg described Mr Epere as “effectively illiterate and innumerate”. He was, for instance, not able to draw a clock face or to place the hands to indicate the time. Mr van Rensburg administered a test of nonverbal intelligence (TONI) and Mr Epere obtained a score which converted to an IQ of 73. Mr van Rensburg said this appeared to be an over-estimation of Mr Epere’s cognitive ability. The report also notes that although this score was considerably higher than that measured by Ms Visser, it was still in the category of mild to borderline intellectual disability.

• [38] Mr van Rensburg said that Mr Epere had poor memory, a very poor concept of time and poor adaptive functioning skills. It is unlikely that he would be able to live independently. He relies upon housing New Zealand accommodation and said that buying food is too expensive, such that he typically eats with the City Mission. He struggles to use public transport other than to destinations he is familiar with.

• [39] Mr Epere indicated that he always pleaded guilty because “I never tell lies”. Mr Epere appeared to have little understanding of the role of the judge, jury or the police prosecutor. Mr van Rensburg commented that he had great doubts as to whether Mr Epere would be able to fully instruct his lawyer as to his defence. The report notes that:

Although he has often submitted a plea of guilty in the past, it is clear that it was often just to get the issue over and done with. He does not have an understanding of the full effect of a plea or the evidence to be led.

• [40] Mr van Rensburg was of the opinion that the court would be likely to find Mr Epere unfit to stand trial.

Report by Dr Joseph Sakdalan dated 10 August 2021

• [41] Counsel for Mr Epere instructed Dr Sakdalan to prepare a psychological report for the purpose of the present appeal. Dr Sakdalan was specifically asked to consider

Mr Epere’s intellectual disability and whether he has ever been fit to stand trial for his charges since 2001.

• [42] Dr Sakdalan’s report states that Mr Epere has severe cognitive impairment. He was disoriented to person, day and date. He could not repeat the assessor’s name despite being reminded a few times. He has significant memory problems, poor sense of time, and tended to confabulate. Mr Epere’s overall cognitive ability was assessed using the WAIS-IV test and his full-scale IQ score was 50. His performance was better than only one out of 1000 same-age peers. This score is in the moderate intellectual disability range and was consistent with the results of Ms Visser’s earlier testing of Mr Epere in 2011 which yielded an IQ score of 49.

• [43] In commenting on the cognitive assessment findings, Dr Sakdalan noted:

These areas of cognitive functioning are relevant to a defendant’s ability to engage meaningfully in the court process. Impairment in these areas can negatively impact on a defendant’s fitness to stand trial (e.g. ability to plead, ability to understand the nature, purpose and possible consequences of the proceedings, ability to mount a defence and instruct counsel for the purpose of mounting a defence) within the meaning of the Criminal Procedure (Mentally Impaired Persons) Act 2003.

• [44] Dr Sakdalan concluded that Mr Epere meets the criteria for the diagnosis of moderate intellectual disability. It is likely that the impairment occurred within the development period (prior to the age of 18):

Given the pervasive nature of his condition, Mr Epere’s significant intellectual impairment occurred during the developmental years and can be considered permanent. Mr Epere has had significant intellectual impairment throughout his life; hence, issues around his diagnosis of intellectual disability and fitness to stand trial can be considered relevant to all his previous and current offences.

• [45] While there were difficulties in assessing Mr Epere’s fitness to stand trial retrospectively given his impaired memory functioning, which limited his ability to recall the circumstances of his previous offences, Dr Sakdalan stated that:

Taking into consideration Mr Epere’s psychological and cognitive vulnerabilities, I am of the opinion that there is an extremely high probability that Mr Epere was unfit to stand trial to most if not all of the charges.

Report by Dr Ian Goodwin dated 2021

• [46] The respondent instructed Dr Goodwin to provide a report with an opinion on Mr Epere’s historical fitness to stand trial. Dr Goodwin expressed the opinion that Mr Epere does suffer from an intellectual disability. That intellectual disability appears to have been present from an early age. Dr Goodwin notes that Mr Epere appears to have an extremely low IQ being less than 55 which, in his opinion, is “somewhat misleadingly” described as a moderate disability. Individuals with that level of intellectual disability would usually struggle with normal daily tasks and require consistent assistance to live in the community.

• [47] With respect to Mr Epere’s fitness to stand trial, Dr Goodwin commented that there is “significant consistency” with Mr Epere’s presentation to the previous assessors and that presentation is consistent with his level of intellectual disability which appears to have been lifelong. Dr Goodwin stated that it seems unlikely that Mr Epere’s capacity to interact with the court has significantly fluctuated over the last decade. There is no evidence in the materials available to Dr Goodwin that Mr Epere gained any level of knowledge through his previous interactions with the court that assisted him in later interactions.

• [48] Dr Goodwin concluded:

In considering the significant intellectual impairment that Mr Epere suffers from, combined with the consistent nature of his presentations in previous assessments of fitness to stand trial, I am of the opinion that it is more likely than not that Mr Epere would be found unfit to stand trial by the Court on the majority (if not all) of the charges he has previously faced (and entered guilty pleas to), if enquiry into his fitness to stand trial had been made at that time.

Summary of expert reports

• [49] The central theme across each of the five reports is that Mr Epere is identified as having a moderate intellectual disability. That term was described by Dr Goodwin as being somewhat misleading in conveying the true severity of Mr Epere’s impairment. His IQ scores were 49, 73 and 50 respectively. The score of 73 was considered by the expert who administered the test to be an overestimation of Mr Epere’s abilities. To give an illustration of Mr Epere’s relative cognitive ability, his performance on the WAIS-IV test was better than only one out of 1000 same-age

peers. Mr Epere’s adaptive functioning, an important component of any assessment of intellectual disability, was also considered to be in the “extremely low” range. It is evident that Mr Epere experiences significant difficulties in many aspects of day-to- day life and he requires considerable assistance to live in the community.

• [50] Mr Epere consistently demonstrated a very limited understanding of court processes, the role of the judge, jury, the prosecutor and his own lawyer. Although he had a limited understanding of right and wrong, he was unable to describe the meaning of a guilty or not guilty plea. He indicated to one expert that he always pleaded guilty because he never tells lies. Mr Epere stated that he would never tell his lawyer what to do and simply did what he was told.

• [51] Every expert was of the opinion that Mr Epere would likely be deemed unfit to stand trial. Dr Sakdalan and Dr Goodwin, both asked to consider Mr Epere’s historical fitness to stand trial, were of the opinion that it is unlikely he was fit to stand trial on any of his previous charges.

Discussion

• [52] The task of retrospectively assessing Mr Epere’s fitness to stand trial is a difficult one. That difficulty was recognised by both Dr Sakdalan and Dr Goodwin in their reports. The earliest report assessing Mr Epere’s fitness to stand trial was prepared in 2010. His earliest convictions predate that report by some years. This appeal concerns convictions entered in 2001, 2004, 2005, 2006, 2007, 2008, 2009, 2012, and 2013.

• [53] The difficulty is further compounded by a lack of documentation in relation to Mr Epere’s earlier convictions. It is not possible to ascertain the circumstances in which his convictions were entered, including whether Mr Epere entered guilty pleas or was convicted following a defended hearing, and the extent to which he received legal advice at the time.

• [54] Notwithstanding these difficulties, I am satisfied that the appeal should be allowed. The experts are unanimous that Mr Epere suffers from a moderate intellectual disability. I agree with Dr Goodwin that use of the term “moderate” does

not accurately convey the extent of Mr Epere’s impairment. He has a very limited understanding of the nature and purpose of court processes. He does not appreciate beyond a rudimentary level the meaning or consequence of a guilty or not guilty plea. He is unable to instruct counsel. His long term memory is significantly impaired, as is his ability to gauge the passage of time and accurately relay information. These profound difficulties render Mr Epere unable to make informed decisions at any stage of the criminal process.

• [55] The evidence shows that Mr Epere’s significant intellectual impairment likely occurred during his developmental years. His disability can be considered permanent. There is no evidence to suggest that Mr Epere gained any level of knowledge through his earlier interactions with the court that may have assisted him in later interactions. To the contrary, the expert evidence is that Mr Epere’s capacity to interact with the court is unlikely to have fluctuated significantly over the last decade.²⁴ On the two occasions when his fitness to stand trial was examined, in 2011 and in 2020, he was deemed unfit to stand trial. Both experts asked to consider Mr Epere’s historical fitness to stand trial were of the opinion that it is unlikely he has ever been fit to stand trial on any of his previous charges.

• [56] I consider that because of his intellectual disability it is unlikely that Mr Epere ever “fully appreciated the merits of his position” or “made an informed decision to plead guilty”.²⁵ The immutable characteristics of his disability are such that he was likely never fit to plead or stand trial at any point in his criminal history. This conclusion aligns with the unanimous expert evidence and the respondent does not contend otherwise. A miscarriage of justice has therefore occurred.

• [57] I will allow the appeal against all of Mr Epere’s previous convictions.

²⁴ This stands in contrast to similar cases like CG, above n 9, where the appellant had been deemed fit to stand trial on a number of occasions and data suggested that the appellant’s ability to follow court processes deteriorated over time.

²⁵ Le Page, above n 11, at [16].

Disposition

• [58] I indicated to counsel at the hearing that I was minded to grant the relief as sought. However, I adjourned the hearing to enable the parties to file supplementary submissions on whether there should be a disposition order made under the CPMIP Act. They have now done so. They are in agreement that Mr Epere’s convictions ought simply to be set aside and judgment of acquittals entered. I agree that is the appropriate course.

• [59] The parties submit that there is no jurisdiction to make a disposition order on appeal. The prescriptive regime of inquiry set out in the CPMIP Act must be followed. There appears to be only one previous case where the Court has touched on whether disposition orders are appropriate in circumstances like the present. In that case, Leapai v Police, it appears that the jurisdiction to make an order was simply assumed.²⁶ With respect, I do not accept that jurisdiction exists. The CPMIP Act is prescriptive.

• [60] Even if there were jurisdiction to make such an order, I am satisfied that it would not be appropriate to do so. A number of factors support the convictions being set aside without further orders:²⁷

(a) Three of Mr Epere’s convictions pre-date the CPMIP Act so the regime in the CPMIP Act could not be followed for those.

(b) The police files for most of Mr Epere’s convictions appear to have been destroyed, meaning it would not now be possible to properly convene an involvement hearing.

(c) The expert evidence is unanimous and the likely result is that Mr Epere would be found unfit to plead.

²⁶ See Leapai v Police [2012] NZHC 708.

²⁷ At [18].

(d) While Mr Epere is not presently the subject of an order under the CPMIP Act, the District Court recently considered whether it was appropriate to make such an order and declined to do so.

(e) The only sentences imposed on Mr Epere have been fines, reparations and orders to come up for sentence if called upon.

• [61] I note also that by and large Mr Epere’s convictions are not for particularly serious offending and over a decade has elapsed since most of those convictions were entered.²⁸ This is not a case where it would be appropriate to order retrials or remit the proceedings to the District Court in order for inquiries to be made under the CPMIP Act. Both parties submit, and I agree, that the appropriate course is for Mr Epere’s convictions to be set aside and judgment of acquittals entered. No further orders are required.

• [62] Of course, if Mr Epere continues to offend there might have to be a disposition hearing.

Result

• [63] An extension of time to bring the appeal is granted.

• [64] The appeal is allowed. Mr Epere’s convictions are quashed. I enter verdicts of acquittal.

Brewer J

²⁸ See Reid v The Queen [1980] AC 343 (PC) at 350.