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Jimmy Peter Akuhata v/s The Queen


Company & Directors' Information:- I-QUEEN PRIVATE LIMITED [Active] CIN = U74999KL2017PTC048635

    CA No. 466 of 2017

    Decided On, 20 February 2020

    At, Court of Appeal of New Zealand

    By, THE HONOURABLE MR. JUSTICE WILD
    By, THE HONOURABLE MR. JUSTICE WHATA & THE HONOURABLE MR. JUSTICE KATZ

    For the Appellant: A.J. Ellis, B.J.R. Keith, Advocates. For the Respondent: K.S. Grau, J.M. Irwin, Advocates.



Judgment Text


REASONS OF THE COURT

(Given by Wild J)

Para No

Table of contents

Para No

Introduction

[1] This is a somewhat unusual appeal against both conviction and sentence.

[2] After pleading guilty to a charge of murder, Mr Akuhata was sentenced, on 20 May 2015, to life imprisonment with a minimum non-parole period of 15 years.[1]

[3] This appeal was filed on 17 August 2017 and is thus over two years out of time. However, the appeal against conviction is essentially a challenge to the procedure under the Criminal Procedure (Mentally Impaired Persons) Act 2003 Mr Akuhata went through before he was found fit to stand trial, and subsequently pleaded guilty.

[4] Given the spectre of mental impairment, delays in obtaining further reports for the appeal and Mr Ellis’ absence for the first half of this year, and in the absence of any real objection from the Crown, we extend time for the appeal against conviction and will consider it on its merits.

Court’s approach to this appeal

[5] This Court’s judgment in R v Le Page outlines the situations in which the Court can allow an appeal against conviction following a guilty plea.[2] Fundamental is that the appellant must establish that a miscarriage of justice will result if his conviction stands. That is, the appellant must demonstrate that an error or errors affected the entering of the guilty plea, such that justice demands the setting aside of the conviction.

[6] Counsel are agreed that Mr Akuhata seeks to establish that his guilty plea was induced by:

(a) a ruling which embodied a wrong decision on a question of law; and/or

(b) incorrect advice as to the non-availability of certain defences, or outcomes, or counsel acting so wrongly or carelessly as to induce him to plead guilty in the mistaken belief that no tenable defence could be advanced.

[7] The first situation is recognised in Le Page,[3] the second in R v Merrilees.[4] Le Page, Merrilees, and this Court’s subsequent decisions, including Richmond v R and Hutchins v R, emphasise that this Court will only rarely allow an appeal against conviction where the appellant pleaded guilty.[5] A feature of this appeal is that we have no evidence from Mr Akuhata: he has chosen not to make an affidavit in support of his appeal. Nevertheless the following passage from this Court’s judgment in Merrilees, cited by the Crown, seems apt to this appeal:[6]

It is often the case that an offender pleads guilty reluctantly, but nevertheless does so, for various reasons. They may include the securing of advantages through withdrawal of other counts in an indictment, discounts on sentencing, or because a defence is seen to be futile. Later regret over the entering of a guilty plea is not the test as to whether that plea can be impugned. If a plea of guilty is made freely, after careful and proper advice from experienced counsel, where an offender knows what he or she is doing and of the likely consequences, and of the legal significance of the facts alleged by the Crown, later retraction will only be permitted in very rare circumstances.

The Criminal Procedure (Mentally Impaired Persons) Act 2003 (CP (MIP) Act)

[8] The CP (MIP) Act sets out the procedure to be followed where a defendant faces a criminal charge(s), but there is a question as to his fitness to stand trial on that charge(s). As the Act, since amended, applied to Mr Akuhata in 2013–2014, it required the Court to find that Mr Akuhata had committed the act or omission forming the basis of the offence with which he was charged with before making its finding as to whether he was unfit to stand trial.

[9] The relevant sections were these:

9 Court must be satisfied of defendant's involvement in offence

A court may not make a finding as to whether a defendant is unfit to stand trial unless the court is satisfied, on the balance of probabilities, that the evidence against the defendant 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.

...

13 Outcome of consideration of defendant's involvement

(1) When the court has ascertained, in accordance with any of sections 10 to 12, whether the court is satisfied of the matter specified in section 9, the court must record its finding on the matter.

(2) If the court is not satisfied of the matter specified in section 9, the court must discharge the defendant.

(3) A discharge under subsection (2) does not amount to an acquittal.

(4) If the court is satisfied of the matter specified in section 9, the court must proceed to determine the matters specified in section 14.

14 Determining if defendant unfit to stand trial

(1) If the court records a finding of the kind specified in section 13(4), the court must receive the evidence of 2 health assessors as to whether the defendant is mentally impaired.

(2) If the court is satisfied on the evidence given under subsection (1) that the defendant is mentally impaired, the court must record a finding to that effect and—

(a) give each party an opportunity to be heard and to present evidence as to whether the defendant is unfit to stand trial; and

(b) find whether or not the defendant is unfit to stand trial; and

(c) record the finding made under paragraph (b).

(3) The standard of proof required for a finding under subsection (2) is the balance of probabilities.

(4) If the court records a finding under subsection (2) that the defendant is fit to stand trial, the court must commence or continue the hearing or trial, or commit the defendant for trial, as the case may require.

Background

[10] We begin by outlining the events which led up to the hearing on 13 November 2013, under s 9 of the CP (MIP) Act.

[11] Mr Akuhata is a Maori man of Nga Puhi descent. He and the victim, Ashlee Edwards, had been in an on-off relationship for about six years. When he murdered Ms Edwards in July 2012, Mr Akuhata was 29 years old, Ashlee 21. Their relationship included violence: Mr Akuhata had three convictions for assaulting Ms Edwards. On 5 February 2010, on the ground of physical abuse, Ms Edwards obtained a protection order against Mr Akuhata, in respect both of herself and their very young child. After the couple had a second child, the protection order was extended, on 24 May 2012, to include this child.

[12] On the night of 26 July 2012, notwithstanding the protection order, Ms Edwards met Mr Akuhata at a nightclub in Whangarei at Mr Akuhata’s invitation. Patrons witnessed the couple getting into an argument, apparently because Ms Edwards was texting. Mr Akuhata became angry and tried to snatch away Ms Edwards’ cell phone. She was overheard telling Mr Akuhata that he was hurting her.

[13] They left the nightclub at about 1.55 am and were seen walking along Tawera Road. They then got into a further argument on the Lower Tawera Road bridge. Mr Akuhata lifted or pushed Ms Edwards up and over the parapet of the bridge.[7] She fell about 5 metres into the stream below. Mr Akuhata then climbed down the bank into the stream. A further struggle followed in the water until Mr Akuhata grabbed Ms Edwards’ hair and held her head under the water until she showed no more signs of life.[8] Mr Akuhata then made his way home, arriving soaking wet. Once home, he told a family member that Ms Edwards was dead. He repeated this to another person he lived with. With these others, he then went to his mother’s home and there asked his brother to find Ms Edwards. The brother called the police who found Ms Edwards’ body floating in the stream under the parapet of the bridge.

[14] The autopsy and post mortem examination stated the cause of death was drowning. There were many minor bruises and abrasions on Ms Edwards’ head, neck, arms and lower legs.

[15] Mr Akuhata was arrested and remanded in custody in Mt Eden Corrections Facility. On 25 November 2012 he was assaulted in the Mt Eden Facility and suffered a significant brain injury. It was that injury that raised the question: Is Mr Akuhata fit to stand trial?

[16] Ms Catherine Cull, who by then was acting for Mr Akuhata, raised his mental condition with the Court in a memorandum dated 29 November 2012. Heath J responded in a minute dated 30 November 2012, vacating the callover scheduled for 4 December 2012 and fixing 14 December 2012 in Whangarei for a hearing to explore Mr Akuhata’s condition. At that hearing, Heath J called for a neuro-psychological assessment report and a psychiatrist’s report and adjourned the proceeding for further hearing on 25 March 2013.

[17] By the 25 March 2013 hearing, Heath J had a report dated 12 March from Dr Goodwin, a forensic psychiatrist, which stated:

On balance ... I am of the opinion that it is likely that the court would find Mr Akuhata fit to stand trial ...

(Emphasis original.)

[18] However, at the 25 March 2013 hearing, concerned about Mr Akuhata’s “physiological injury”, the Judge ordered a report from a neuro-psychologist. He also vacated the fixture for the trial, which had been set to begin on 29 July 2013.

[19] When Heath J received the 15 April 2013 report of Mrs Sabine Visser, a senior psychologist specialising in neuro-psychological assessment, he further adjourned the proceeding to Whangarei on 13 August 2013, directing that Mr Akuhata be present. Mrs Visser had expressed the opinion that:

... on balance, the court is likely to find Mr Akuhata currently not fit to stand trial.

(Emphasis original.)

Mrs Visser recommended postponing the trial for three to six months due to the sequelae of Mr Akuhata’s head injury, and re-testing in three months.

[20] In a further minute on 13 August 2013, Heath J recorded that hearings under ss 9 and 14 of the CP (MIP) Act would be required, counsel estimating that one day would be sufficient, the hearings proceeding one after the other. He fixed 19 September 2013 for a preliminary hearing by AVL, asking that counsel be ready to inform the Court about the evidence proposed to be given at the s 9 hearing.

[21] In a further minute on 19 September 2013, following the hearing that day, Health J noted Ms Cull’s concern that she may not be able to take Mr Akuhata’s instructions to consent to the way evidence was heard at the ss 9 and 14 hearings. Accordingly, he set 10 October 2013 for a hearing following which he would give directions on the procedure to be followed at those hearings. The Judge timetabled the filing of submissions and also fixed 14 November 2013 for the ss 9 and 14 hearings.

[22] Following the 10 October hearing, Heath J issued first a minute, and then a judgment. In the minute he confirmed 10.00 am on 14 November for the s 9 hearing and, if necessary, 2.15 pm that day for a s 14 hearing. He recorded that arrangements had been made for Dr Goodwin and Mrs Visser to be available to give evidence from 2.00 pm on 14 November 2013.

[23] Heath J’s judgment of 14 October 2013 is a typically comprehensive one.[9] After considering previous decisions of this Court,[10] the Judge directed:

(a) Any Crown witnesses called to prove that Mr Akuhata had thrown or pushed Ms Edwards off the bridge and/or held her head under the water, so as to cause her death, were to give their evidence orally and be available for cross-examination. So were any Crown witnesses called to prove admissions made by Mr Akuhata.

(b) All other Crown evidence, including the pathologist’s report, could be tendered by written statement.

The grounds of appeal

[24] Eight grounds of appeal were advanced. We deal with these, not in the order they were argued, but in an order which is chronological and, we hope, also logical. Mr Ellis did not pursue the third ground of appeal, relating to the admissibility of Mr Akuhata’s various admissions.

A: Ground 2: The s 9 CP (MIP) Act hearing was unfair and the decision lacked reasons

[25] Woodhouse J presided at the s 9 hearing. In a minute on 31 October 2013 he recorded new arrangements, including that the hearing would start at 10.00 am on 11 November 2013, with the s 14 hearing, if required, proceeding at 10.00 am on 12 November 2013.

[26] As it transpired, the s 9 hearing was on 13 November 2013 and Woodhouse J gave judgment orally following the hearing.[11] The Judge noted that the Crown relied on the definition of murder in s 167(a) of the Crimes Act 1961. That involved an allegation that Mr Akuhata meant to cause Ms Edwards’ death. The essence of that allegation was that Mr Akuhata threw Ms Edwards off the bridge and then jumped off the bridge into the stream and held Ms Edwards’ head under the water until she drowned.

[27] Central to the Judge’s decision were the admissions Mr Akuhata had made to various people in the early hours of the morning of 27 July 2012, shortly after he had drowned Ms Edwards. Their essence was that Mr Akuhata admitted he had thrown Ms Edwards off the bridge and that he had then drowned her. The Judge considered the clearest admission had been made to Mr David Wiki, who was living with Mr Akuhata at the time and was his cousin. Although, given their relationship, Mr Wiki had given his evidence with reticence, the Judge considered he had given it with honesty. Mr Akuhata made similar admissions to Mr Nathan Hapeta, who also lived with Mr Akuhata, and to a neighbour, Ms Dominique Wiri. Mr Akuhata made a further admission to a fellow prisoner in the Mt Eden Corrections Facility the following day, after he had been remanded in custody. Asked why he was in prison, Mr Akuhata had answered “because I killed my missus”, and then he had added that he had “not admitted this to the police”.

[28] Although the Judge considered those admissions “almost certainly sufficient for me to be satisfied on the balance of probabilities on the matter that I have to be satisfied on under s 9”, he listed other evidence supporting what Mr Akuhata had admitted, particularly:

(a) Mr Wiki’s evidence that Mr Akuhata had arrived home soaking wet and very upset.

(b) The pathologist’s finding that the cause of Ms Edwards’ death was drowning.

(c) The fact that Ms Edwards’ body was found just below the parapet of the Tawera Road bridge.

[29] All of that led to the Judge’s finding:[12]

[18] It is for all of these reasons that I am satisfied on the balance of probabilities that, in terms of s 9 of the Act, Mr Akuhata caused the act that forms the basis of the offence of murder with which he is charged.

[30] Mr Ellis submitted the s 9 hearing was unfair and the judgment flawed in several respects. He advanced five points.

Actus Reus

[31] Mr Ellis submitted the judgment of Woodhouse J was legally wrong, in that the actus reus of murder is manslaughter, and the correct finding, if any, was that Mr Akuhata had committed the actus reus of manslaughter, not murder.

[32] This submission is misconceived because s 9 (which is set out in [9] above) required the Judge to be satisfied that Mr Akuhata had probably “caused the act ... that forms the basis of the offence with which [he] is charged”.

[33] Thus, in terms of s 9, the Judge’s conclusion was correctly directed to “the act that forms the basis of the offence of murder with which he is charged”. The Crown’s allegation was that Mr Akuhata had caused Ms Edwards death by drowning her. The position of manslaughter in the s 9 hearing was correctly set out by Heath J in his judgment giving directions for the s 9 hearing:[13]

[20] Although a jury is entitled to return a verdict of manslaughter, if not satisfied that the requisite murderous intent is present, the availability of that alternative verdict does not affect the underlying question of what constitutes the actus reus for the purpose of the s 9 inquiry.

Time of death

[34] Mr Ellis argued that the Judge could not make the finding he did without ascertaining “the approximate time, and methodology of drowning causing death”. We understand Mr Ellis to be suggesting that Ms Edwards may still have been alive when Mr Akuhata left the scene and made his way home. If that were so, then manslaughter or even a discharge without conviction was the appropriate outcome.

[35] We consider this submission is also misconceived. A verdict of manslaughter or a discharge without conviction were not in play in the s 9 hearing. As the Judge correctly defined his task, it was to decide: “is it more likely than not that [Mr Akuhata] drowned Ms Edwards?”[14]

[36] In evidence before us, Ms Cull said that she had regarded the exact or proximate time of Ms Edwards death as unimportant for the purposes of the s 9 hearing. We agree, because the time of death could not have affected the outcome of the s 9 hearing, given Mr Akuhata’s clear admissions that he had drowned Ms Edwards — that is, that he had committed the murderous act with which he was charged.

[37] We nevertheless wish to clear away one small point relevant to the time of Ms Edwards’ death. At 3.32.31 am on 27 July 2012 someone made a call on Ms Edwards’ cell phone. It appears the call was made to retrieve text messages from the phone. At the time of the s 9 hearing, the Court did not know of this call. Ms Cull gave evidence that she first became aware of it in March 2015, when the Crown disclosed to her the propensity evidence that it subsequently applied to adduce. The call was mentioned in a draft timeline which Ms Cull said she queried. Because the exact or approximate time of death was not relevant, had the Court been aware of this call at the s 9 hearing, it would not have affected the outcome. Nor, of course, can Ms Cull be criticised for not pursuing this point at the s 9 hearing.

[38] Our mention of this cell phone call should not be interpreted as suggesting that it was Ms Edwards who made the call. The identity of the caller is simply unknown. But, given the events we have detailed in [12] above, it could well have been Mr Akuhata who made the call. Ms Edwards’ cell phone was not found after she drowned.

No robust defence

[39] In the course of Mr Ellis’ cross-examination of Ms Cull before us, there was this exchange:

Q. Yes, but the Judge listens to counsel and listens to the defence argument. You didn’t run a defence, did you?

A. I’m not quite sure what you’re indicating. A defence to what?

Q. The defence that the Judge could not find, on the balance of probabilities, that Mr Akuhata caused the death of Ashlee. It was just not possible to reach that conclusion on the balance of probabilities if you can’t ascertain when she died?

A. Well, that’s how the section 9 was run. You’ve got the papers. In my opinion, it was possible for him [the Judge] to do that and he did.

[40] So this is the “time of death” point again and we need say nothing more about it.

[41] Mr Ellis also questioned Ms Cull about the three different versions of the events preceding Ms Edwards’ death that Mr Akuhata gave Mrs Visser in the course of her successive assessments of him. She recorded these in the three reports she made before the s 9 hearing, and then set them out in sequence in her report of 3 October 2018 requested by this Court for this appeal. Mr Ellis summarised these three versions as follows:

(a) Mr Akuhata told Mrs Visser Ms Edwards did not jump off the bridge but somehow in the scuffle she fell off the railing.

(b) Mr Akuhata heard voices telling him what to do. He was told to lift Ms Edwards up. He lost his balance, and she then fell as he was trying to help her but she pulled him down.

(c) Mr Akuhata heard voices. He wanted to plead temporary insanity. He did not recall how Ms Edwards fell but he went down to the water and could not find her.

[42] There was this exchange in Mr Ellis’ cross-examination of Ms Cull about these three explanations by Mr Akuhata:

A. Even if I had that information, I struggle to see how that would have been able to be utilised in the section 9 hearing, given it is from Mr Akuhata and who I would have cross-examined on that basis.

Q. So, his explanation is it’s an accident?

A. But I’ve got his explanation, yes.

Q. And you couldn’t have done anything with that? Okay, the second one, “He heard voices telling him what to do”. Same question, could you have made use of that?

A. Well, again, the oral witnesses that were called by the Crown which is clear from the notes of evidence, I struggle to see who I would have cross-examined on, putting that version.

Q. Well, you could have called witnesses, couldn’t you, to present a defence case? It’s not all a prosecution free-ride, a section 9. It’s supposed to be a robust defence, isn’t it?

A. To produce or call a witness to give any evidence of those potential versions given by Mr Akuhata, in my opinion, would have meant that I would have had to call Mr Akuhata.

Q. Well, you couldn’t have on your view that he was unfit at the time, could you?

A. Correct, no.

[43] As Ms Cull explains, she could not usefully have put those explanations to the Crown witnesses. None of them was at the stream when Ms Edwards drowned. What could they have said about them? And Ms Cull had assessed that she could not call Mr Akuhata to advance one or other of those explanations. We do not see any fault in Ms Cull’s conduct of the s 9 hearing, but her answers in the exchange set out in [42] above lead neatly into Mr Ellis’ next point.

Mr Akuhata unfit for the s 9 hearing

[44] For Mr Ellis to submit that Mr Akuhata should not have had to participate in the s 9 hearing if unfit,[15] is to criticise the CP (MIP) legislation as it stood at the time. As explained in [8] above, the Act required the Court to make a finding under s 9 before making its determination under s 14 as to whether Mr Akuhata was unfit to stand trial. Presumably, the logic behind this sequence was that the considerable time and expense involved in obtaining reports under s 38 of the Act should not be incurred unless and until it was determined that the defendant had committed the actus reus of the crime alleged.

[45] This point fails.

No reasoning

[46] Mr Ellis submitted the judgment of Woodhouse J lacked reasons. To arrive at the conclusion that Mr Akuhata had committed the actus reus of murder, Mr Ellis contended the Judge must implicitly have made an unrecorded finding as to the time, and particular method, of death, which, without evidence, would have been no more than speculation, particularly as counsel failed to raise this issue. We do not accept this. We have summarised in [27] and [28] above the evidence on which the Judge based his finding. And we have held that the fact that the precise or proximate time of death was not known does not impugn that finding. We do not consider that there was any lack of reasoning or any lack of an explanation by the Judge as to the evidential basis on which he reached his finding. This further point is not made out either.

[47] Accordingly, the challenge to the fairness of the s 9 hearing, and to the Judge’s reasoning and finding, fails.

B: Ground 4: No neuropsychologist or radiology report on brain damage, or psychologist/psychiatrist’s report as to appellant’s state of mind when making “admissions”

[48] This ground of appeal largely fell away. It was formally abandoned in respect of a neuropsychologist’s report. Mr Ellis’ written submissions left this ground somewhat open, pending the hearing of the appeal. And then, at the hearing, Mr Ellis did not address this ground.

[49] In a memorandum in July 2018, Mr Ellis suggested Ms Cull had become “fixated” on the brain injury Mr Akuhata sustained while remanded in prison on 25 November 2012. Ms Cull interpreted this as a criticism that she had not considered whether Mr Akuhata may have had an intellectual disability before sustaining that head injury. In her affidavit sworn on 16 September 2019, Ms Cull deposed that (with Mr Akuhata’s consent) she had obtained his medical notes quite early on, in an effort to ascertain whether the possibility of intellectual disability had been raised in Mr Akuhata’s previous court appearances.[16] She deposed that she did not find anything. One of the annexures to Ms Cull’s affidavit is her file note of a meeting with Mr Akuhata at Ngawha Prison on 7 November 2013. In that note Ms Cull records “confirmed I had his medical notes”. That meeting was about a week before the s 9 hearing on 13 November 2013.

[50] In all, Mr Akuhata’s mental condition has been the subject of 12 reports prepared by five different health professionals each with different areas of speciality across the fields of forensic psychology and psychiatry. Eight of these reports were before the High Court for the s 14 hearing (to determine whether Mr Akuhata was unfit to stand trial), and four have been obtained since, for the purposes of this appeal. Those subsequent reports focus primarily on two questions. First, whether there is a concern about Mr Akuhata’s guilty plea. Second, whether Mr Akuhata was able to participate “meaningfully” in the criminal proceeding against him, in particular the hearing under ss 9 and 14 of the CP (MIP) Act.

[51] In our view, the High Court had, for the s 14 hearing, comprehensive and careful reports on Mr Akuhata. No criticism, either of Ms Cull or of the High Court, can legitimately be made in that respect.

[52] Likewise, we consider this Court is equally well served with reports for this appeal. In addition, we have had the benefit of hearing evidence directly from Dr Pillai. Although Dr Pillai is based in Auckland, he was in Wellington on the day this appeal was heard and was able to come to Court to be cross-examined by Mr Ellis.

[53] Insofar as this ground of appeal was pursued, we dismiss it.

C: Ground 6: Detention at the Mason Clinic arbitrary, unlawful and a breach of ss 9, 22 and 23(5) of the New Zealand Bill of Rights Act 1990 (NZBORA)

[54] Before considering this ground, we outline what occurred between the s 9 hearing on 13 November 2013 and the s 14 hearing on 26 June 2014.

[55] On 14 November 2013 Woodhouse J adjourned, to 14 May 2014, the s 14 hearing which had been scheduled for that day. He did that having considered the reports prepared by Mrs Visser and Dr Goodwin. Both thought Mr Akuhata’s mental health would improve to the point where he was fit to stand trial. The Judge directed both experts to prepare further reports for the 14 May 2014 hearing and to be available to give evidence at that hearing.

[56] Those further reports were duly received by the High Court.

[57] Wylie J presided at the s 14 hearing on 14 May 2014. He had read the two further reports. Both experts favoured Mr Akuhata being admitted to the Mason Clinic for further evaluation. The Judge heard evidence from Mrs Visser by telephone (technical problems prevented the scheduled AVL link). The Judge also heard from counsel. He stated:[17]

[15] Having considered the various reports prepared by Dr Visser and Dr Goodwin (both the earlier reports and the more recent reports), and taking into account the evidence which I heard from Dr Visser, I am satisfied that it is appropriate to order that the defendant be detained in the Mason Clinic for the purpose of further assessment under s 38 of the Act. I direct that the defendant is to be detained in the Mason Clinic for a period not exceeding 14 days. I am satisfied that it would be inappropriate to order the defendant’s detention in a prison for the following reasons:

(a) the defendant’s condition, and the extent to which it has improved, can be better assessed in the Mason Clinic;

(b) the Mason Clinic provides a better environment in which it can be determined whether or not the defendant is feigning all or some of the symptoms he claims;

(c) the defendant can receive more appropriate medication in the Mason Clinic than would be available to him in a prison environment.

[58] Wylie J then made arrangements against the likelihood (mentioned by Mrs Visser) that detention in the Mason Clinic for more than the initial 14 day period permitted by s 38(2)(b) of the CP (MIP) Act would be required. The Judge also gave directions for the earliest practicable s 14 hearing.

[59] Heath J extended the period of detention for a further 14 days, recording his order in a minute on 28 May 2014. Section 40(1) of the CP (MIP) Act permitted this. Heath J also fixed the s 14 hearing for 26 June 2014 before Faire J, directing that any further applications be referred to that Judge. He also directed that Mrs Visser, Dr Goodwin and Dr Pillai were, if possible, to be available for cross-examination at the 26 June 2014 hearing.

[60] Dr Pillai reported to the High Court on 11 June 2014. He is a consultant forensic psychiatrist with the Waitemata District Health Board. Dr Pillai based his report on interviews with Mr Akuhata in the Mason Clinic on 19 and 26 May, and 6 June, 2014. The following parts of his report are relevant:

CONFlDENTIALITY & CONSENT

9. At the outset of Mr Akuhata's admission to the Mason Clinic on 14 May and the outset of my assessment with Mr Akuhata on 19 May 2014 he was informed of the limits of confidentiality with respect to information he divulged. Mr Akuhata appeared to understand this. A number of times during interviews with Mr Akuhata he (appropriately) held back in a deliberate fashion due to caution in providing information which could be prejudicial to a future defence to his charges.

...

PROGRESS AND OBSERVATIONS DURING INPATIENT ADMISSION AT THE MASON CLINIC

...

16. Due to some irritability at the time of admission Mr Akuhata was briefly managed in seclusion with high levels of staff. He rapidly calmed, became cooperative and was transitioned to the main ward. The day after his arrival he was questioned by a psychiatrist about any perceptual disturbances or unusual experiences and did not provide any information consistent with assertion on his first day that he was seeing aliens. Absence of any psychotic symptoms was recorded. It was reported that Mr Akuhata was aware that he was in the Mason Clinic for an assessment of his fitness to stand trial.

...

27. Mr Akuhata was asked to comment on the summary of facts. Mr Akuhata said he had read “some of the disclosure”. Mr Akuhata identified the different types of information and their relative strengths e.g. minimising the importance of “hearsay” information. Mr Akuhata also stopped responding to my questions at a point where he felt the evidence was not firm and said it was his “personal business” and between him and his lawyer. Mr Akuhata became a little irritable at this point and said that I was talking to him like a police officer. I attempted to introduce new information regarding wounds on the victim (not in the disclosure provided) and Mr Akuhata identified this as not accurate.

...

OPINION

...

Re fitness to stand trial as defined in Section 4 of the Criminal Procedure (Mentally Impaired Persons) Act 2003

...

58. ... Overall on the basis of the information available to me I have formed an opinion that on the balance of probabilities Mr Akuhata can ‘communicate adequately for the purposes of conducting a defence’ and therefore it is unlikely that Mr Akuhata falls within the meaning of unfit to stand trial as defined within Section 4. In summary I found his functional performance within the ward and at interview to be generally adequate and while the neuropsychological testing over the past 18 months has continued to show deficits, it has generally trended towards improvement.

RECOMMENDATION

59. I have offered a clinical opinion that Mr Akuhata does not fall within the meaning of unfit to stand trial as defined in the Criminal Procedure (Mentally Impaired Persons) Act 2003.

60. Should Mr Akuhata ultimately stand trial may I respectfully recommend that shorter periods of Court (45 minutes) with time to allow Mr Akuhata to rest and debrief with Counsel could assist him to cope. Mr Akuhata is also vulnerable to anxiety which could affect his performance in the Court room.

[61] Mr Akuhata was returned to prison following his discharge from the Mason Clinic on 11 June.

[62] In respect of Mr Akuhata’s detention in the Mason Clinic Mr Ellis made six submissions:

(a) It was wrong in principle and in law to detain Mr Akuhata in a mental health facility because he was not mentally ill.

(b) Mr Akuhata’s detention in the Mason Clinic was an arbitrary detention in breach of s 22 of the NZBORA:

22 Liberty of the person

Everyone has the right not to be arbitrarily arrested or detained.

(c) His detention was also in breach of s 23(5) of NZBORA:

23 Rights of persons arrested or detained

...

(5) Everyone deprived of liberty shall be treated with humanity and with respect for the inherent dignity of the person.

(d) Each successive period of detention was for 15 days, in breach of the statutory maximum of 14 days. Consequently, the 15th day of each period of detention was arbitrary.

(e) Dr Pillai’s examinations of Mr Akuhata were illegal.

(f) Ms Cull erred in not advising Mr Akuhata that it was unlawful to commit him to a mental health facility when he was not mentally ill.

[63] We will address each of these points in turn.

Detention in Mason Clinic unlawful and/or arbitrary?

[64] As Mr Akuhata was in custody, the High Court had power to order a health assessor’s report for the purpose of assisting the Court to determine whether Mr Akuhata was unfit to stand trial.[18] And, having ordered a report, the High Court also had power to order that Mr Akuhata be detained “in a hospital or secure facility” for the purpose of the assessment.[19] The Mason Clinic is a secure facility.[20]

[65] As required by s 38(4), Wylie J recorded his reasons for ordering that Mr Akuhata be detained in the Mason Clinic. We have set those out in [57] above. Section 38 did not require that Mr Akuhata be mentally ill before he could be detained in a mental health facility such as the Mason Clinic. However, the concerns about Mr Akuhata’s mental health were squarely before the Court in the reports of Mrs Visser and Dr Goodwin. As it transpired, Dr Pillai did consider Mr Akuhata had a “mental impairment” within the meaning of that term as it is used in the definition of “unfit to stand trial” in s 4 of the CP (MIP) Act.

[66] It follows that Mr Akuhata’s detention in the Mason Clinic was neither wrong, unlawful, arbitrary or unfair. On the contrary, it was entirely lawful and appropriate. If the detention was discriminatory in any way, then the discrimination was in Mr Akuhata’s favour, because of the Court’s concern about his mental condition and its wish that appropriate medication be available to Mr Akuhata. A remand in prison was the alternative.

Not treated with humanity?

[67] Mr Ellis’ submission that there was a failure to treat Mr Akuhata with humanity and with respect for his inherent dignity, in terms of s 23(5) of NZBORA, is not supported by any evidence. It is a bare assertion. The available evidence comes from four sources and does not support the assertion. First, Ms Cull has deposed that Mr Akuhata was well aware that he was going to the Mason Clinic for up to 30 days for a further report. Mr Akuhata was present at Court on 14 May 2014 and Ms Cull also spoke to him following the hearing. She deposes “[h]e was happy with going to the Mason Clinic for assessment”. Ms Cull says she also spoke to Mr Akuhata by telephone on 22 May 2014 explaining that his time at the Mason Clinic had been extended. Her note of that conversation records “said was enjoying Mason Clinic – all good”.

[68] Second, Dr Pillai’s 11 June 2014 report, overall, confirms that Mr Akuhata was content and settled during his time in the Mason Clinic. We have set out, in [60] above, paragraph 16 of Dr Pillai’s report which records some initial irritability on Mr Akuhata’s part, until he was moved from seclusion to the main ward in the Clinic. Certainly, Dr Pillai’s report provides no support for Mr Ellis’ submission that he was not treated with appropriate respect.

[69] Third, in her report of 3 October 2018[21] prepared for Mr Ellis for this appeal, Dr Shaw also discusses the time Mr Akuhata spent in the Mason Clinic. Dr Shaw is a neuropsychologist. She records Mr Akuhata telling her that he “didn’t mind being in the Mason Clinic ... it was quite ‘nice’ there, and he definitely preferred it to prison. ... He said he felt comfortable there ...”. Mr Akuhata also told Dr Shaw that, because the environment was quite pleasant, he did not mind when his initial two week stay was extended.

[70] Fourth, in his 13 March 2019 report prepared for Mr Ellis, Dr Barry-Walsh states that Mr Akuhata’s admission to the Mason Clinic “was appropriate and the only realistic option available given detention was ordered under s 38(2)(c) ... for the purposes of assessment of unfitness to stand trial”.

Periods of detention unlawfully long?

[71] There is also nothing in Mr Ellis’ submission that the two periods of detention were for 15 days rather than the statutory maximum of 14. Assuming day one of the detention was from the day after the Court’s order of 14 May 2014, 14 days ended on 28 May. On 28 May, the Court further extended the detention until 11 June. That further period was from 29 May to 11 June — 14 days. As the Crown points out, Mr Akuhata’s total stay was 28 days, two days less than the 30 day maximum period stipulated by s 40(1) of the CP (MIP) Act.

Dr Pillai’s assessments and report unlawful?

[72] It follows from all this that Dr Pillai’s three successive assessments of Mr Akuhata and his report were not unlawful. The report was ordered by the Court under s 38 and appears to us to have been carried out with a high degree of care and professionalism. We make that observation having had the benefit of hearing Dr Pillai questioned in Court by Mr Ellis.

Error on Ms Cull’s part?

[73] The criticism directed at Ms Cull must also be rejected. She explained to Mr Akuhata the purpose and duration of his detention in the Mason Clinic, and she spoke to him again when the detention was extended. Her contemporary file note demonstrates that Ms Cull was also concerned to check that Mr Akuhata was not experiencing any difficulties at the Clinic.

[74] There is nothing in any of the six points made in support of this ground of appeal, which we dismiss.

D: Ground 4: (sic) No right to counsel, to silence, or to refuse medication

[75] Mr Ellis submitted:

(a) Mr Akuhata should have been informed of his right to silence, and his s 23(1)(b) NZBORA right to consult and instruct a lawyer, before each of the assessments of his fitness to stand trial was carried out. This was particularly so in respect of the three assessment interviews by Dr Pillai during Mr Akuhata’s detention in the Mason Clinic.

(b) Consequently, all the reports to the Court under s 38 of the CP (MIP) Act were unlawfully obtained. The Court had no lawfully obtained s 38 reports for the s 14 hearing which, consequently, “misfired”.

(c) Mr Akuhata was not informed of his right under s 11 NZBORA to refuse medical treatment while in the Mason Clinic. He was prescribed “an SSRI (anti-depressant) to assist his thought processes”.

(d) Each of Mrs Visser, Dr Goodwin and Dr Pillai were on the staff of the Mason Clinic and were not independent of each other. There was a systemic lack of independence.

Rights to silence, to legal advice, and to refuse medication breached?

[76] In dealing with the submissions that Mr Akuhata’s rights to silence, to legal advice, and to refuse medication, under ss 11 and 23 NZBORA were breached, we assume, without in any way accepting, that these rights were breached. We say more about this assumption in [85] below. We also assume the consequence that the reports obtained from Mrs Visser and Drs Goodwin and Pillai pursuant to s 38 were improperly obtained. On those assumptions, the admissibility of those reports in the s 14 hearing would fall to be determined under s 30 of the Evidence Act 2006.[22] Mr Ellis did not direct submissions to s 30, but we are in no doubt that the reports would have been ruled in.

[77] The following six factors would have been prominent amongst those considered by the Court under s 30(3). First, there was nothing deliberate or reckless, nor any bad faith, in the breaches. It remains an undecided question whether the s 23 NZBORA rights do need to be explained (again) to a remand prisoner detained under s 38(2)(a) of the CP (MIP) Act.[23]

[78] Second, each of the reports contains a ‘confidentiality and consent’ section in much the same terms. We draw this example from Dr Goodwin’s report of 6 May 2014:

CONFIDENTIALITY & CONSENT

9. At the outset of my interview with Mr Akuhata I explained to him the reason for our meeting. Mr Akuhata indicated to me that he was aware I was coming to interview him again. Mr Akuhata displayed an awareness that the issue at stake was one of fitness to stand trial.

10. Mr Akuhata indicated that he was aware a report would be prepared for the Court. He was able to indicate the limits of confidentiality inherent in this situation.

11. Mr Akuhata was co-operative with the interview process. He did become irritable one stage though rapidly calmed down.

[79] Third, there was the following exchange in Mr Ellis’ cross-examination of Dr Pillai:

Q. And when you were trying to advise him of his rights, “you don’t have to answer these questions” and you said he didn’t on some occasions. Did you actually know what rights he had that you could advise him on?

A. In the broadest sense, the rights would be that to explain to him the purpose of the interview, when I was interviewing him specifically around the facts of the – round on the assessment of fitness to stand trial and to re-advise him that the things that he spoke about, I would use for this report and would become available to the Court.

Q. You didn’t advise him that he had a right to a lawyer while you were questioning him?

A. That would not be part of my usual process.

Q. And you didn’t advise him he had the right to silence, didn’t have to say anything?

A. I think that might be implicit. Well, if I follow my usual practice, which I would say he doesn’t have to answer the questions put to him.

[80] Fourth, the reports, particularly the critical report of Dr Pillai dated 11 June 2014, make it clear that Mr Akuhata steered well clear of saying anything incriminating. And there is no suggestion that the breaches of Mr Akuhata’s rights resulted in him making incriminating admissions or remarks. The second and third points we have just made may explain that or may have contributed to that.

[81] Fifth, Ms Cull was acting for Mr Akuhata throughout. So he had a lawyer “he could consult and instruct without delay”. Essentially, Mr Ellis’ submission is that Mr Akuhata’s s 23(1)(b) NZBORA right was breached because it was not explained to him that he had a right to something he already had: a lawyer. This situation can be compared with that in Togia, where the High Court held that any breach of Mr Togia’s s 23(1)(b) right was cured by the subsequent appointment of counsel to represent him, before he pleaded guilty.[24]

[82] Sixth, Mr Akuhata was not, while in the Mason Clinic, prescribed medication to help with his thought processes. Dr Pillai made this clear in his evidence, in answer to questions from Mr Ellis. As best we can ascertain from the reports, it was Dr Goodwin, in his 15 October 2013 report, who recommended “the addition of specific medication that may assist with [Mr Akuhata’s] emotional lability and capacity to focus attention ...”. Then, in his 6 May 2014 report, Dr Goodwin noted that Mr Akuhata was no longer emotionally labile while discussing the issue of his potential plea and defences. Dr Goodwin noted “[t]his may well be due to the prescription of an SSRI medication following my last assessment of him”. That refers to Selective Serotonin Reuptake Inhibitors, which are some of the most commonly prescribed anti-depressants. In his 11 June 2014 report Dr Pillai noted that Mr Akuhata:

... has been fully independent with all his activities of daily living and fully compliant with his medication being an anti-depressant citalopram that was prescribed from prison.

[83] Thus, although the Mason Clinic continued to administer the Citalopram, it seems that it was prescribed by a doctor while Mr Akuhata was in prison.

Mrs Visser and Drs Goodwin and Pillai not independent of each other?

[84] Mr Ellis did not press his submission that there was a systemic lack of independence as between Mrs Visser and Drs Goodwin and Pillai. We think he was right not to do so. There is no hint in any of the reports that the reporting medical professional has been influenced by the views of others. That is particularly so of the critical report of Dr Pillai dated 11 June 2014. Dr Barry-Walsh put to rest a concern expressed by Dr Shaw as to whether there may have been a conflict of interest in the involvement of Mrs Visser and Dr Pillai, given both were employed at the Mason Clinic. Dr Barry-Walsh said:

... It is evident from Dr Pillai’s report he was not the responsible clinician during Mr Akuhata’s admission, and I am aware that the standard practice at the Mason Clinic is to ensure that there are no issues around dual agency for report writers. I find there is no conflict of interest in his completing the further report.

[85] There is no substance in this ground of appeal, which we dismiss. In doing so, we reiterate that we have found it convenient to deal with this ground of appeal on the assumption that Mr Akuhata’s ss 11 and 23(1)(b) NZBORA rights were breached. We are not to be taken as accepting that those rights were breached, because that is not our view. In particular, in relation to s 23(1)(b), there is an artificiality in suggesting that this right was breached when Mr Akuhata, at all material times, had a lawyer who was advising and assisting him.

E: Ground 5: The s 14 CP (MIP) Act hearing was unfair

[86] Faire J presided at the s 14 hearing on 26 June 2014 and delivered his judgment on 3 July 2014.[25] In terms of s 14(2) of the CP (MIP) Act, the Judge found Mr Akuhata fit to stand trial. Mr Akuhata appealed against that judgment. The appeal was heard by this Court on 13 October 2014 and dismissed in a judgment delivered on 3 December 2014.[26]

[87] Mr Akuhata is not seeking again directly to challenge the correctness of the High Court’s judgment. Rather, the points advanced in support of this ground challenge the fairness to Mr Akuhata of the hearing, and in one respect the focus of the hearing.

[88] We have distilled into three the points advanced by Mr Ellis in support of this ground. The first point is that the successive judges who dealt with the proceeding in the High Court, and the three judges who dealt with his appeal in this Court, failed to ensure that Mr Akuhata “was actively participating” in the s 14 hearing and the appeal. Mr Ellis draws the words we have quoted from the judgment of the English Court of Appeal in Dixon v R.[27]

[89] The evidence does not support this assertion. First, to assist him in making the determination required by s 14, Faire J had eight reports covering in detail Mr Akuhata’s mental condition. In particular, Dr Pillai’s 11 June 2014 report recommended that any hearings be broken up into 45 minute hearing periods. Thus, the Judge would have embarked on the hearing very much alive to Mr Akuhata’s mental impairment.

[90] Second, although Mr Akuhata was present when the hearing began on 26 June 2014, after the morning adjournment Ms Cull applied that he be excused from the courtroom. In her affidavit Ms Cull explained:

Mr Akuhata was present for part of the s 14 hearing. At the adjournment he told me he did not want to continue attending the hearing as he was tired and did not want to listen to the medical evidence. I asked if he was happy for the hearing to continue in his absence. He said he was. I recall that a person from forensics also met with him. In light of that I did not consider the hearing should be adjourned. I told the Judge I had clear instructions because I did. The “clear instructions” related only to Mr Akuhata not wanting to be present and hear the evidence, not to his general ability to instruct and communicate with me that was my focus on his appeal to the Court of Appeal against the decision that he was fit to stand trial.

[91] There is a section in the judgment of Faire J recording in a typically thorough way how the Judge went about considering that application, which he granted.[28] So, the remainder of the s 14 hearing proceeded in Mr Akuhata’s absence. It is difficult to see how Faire J could, after Mr Akuhata left the courtroom, have ensured that he “was actively participating” in the hearing.

[92] Mr Ellis’ second submission is that there was unfairness because Mr Akuhata had no communication assistance. He referred to s 80 of the Evidence Act which provides:

80 Communication assistance

(1) A defendant in a criminal proceeding is entitled to communication assistance, in accordance with this section and any regulations made under this Act, to—

(a) enable the defendant to understand the proceeding;

...

[93] Mr Ellis pointed out that Mrs Visser, in her report of 7 October 2013, noted that Mr Akuhata “stated that he had a hearing deficit that he related to difficulties in early childhood”. However, we understand the nub of this second submission is that no proper steps were taken to ensure that Mr Akuhata understood the purpose of the s 14 hearing and what was being said in Court. As to ensuring that Mr Akuhata understood the purpose of the hearing, there was this exchange in Mr Ellis’ cross examination of Ms Cull:

Q. Well isn’t it your job to explain them [the ss 9 and 14 hearings] to him? Not his job to say I don’t understand?

A. They were explained to him, Dr Ellis, after they occurred the whole process was explained to – was explained to him prior to the section 9 and 14 proceeded and the purpose of them and as simple language I could – I could use because consensually it’s difficult for defendants to understand what a section 9 is. They think that that means there’s a determination of guilt and that they think that they are not able to, if they’re found fit, then attack the evidence, that was explained to him. That it was a process for a court to consider whether they were satisfied on the balance of proba – these are my words now, not the words I used to him – on the balance of probabilities he was involved and that we would then move to the medical evidence which was around whether he was well enough, and that was the word I used, to be able to either plead to the charge or proceed through trial.

Q. And at that stage, you didn’t think it appropriate to request a communication assistant to help with his understanding?

A. All dealings I had with Mr Akuhata, I had no issue with him, in my view, understanding what I was saying because I would get him to repeat it back to me orally as to what is it that you think I’ve just said, like I would a young person.

[94] Further, both Drs Shaw and Barry-Walsh were specifically asked by Mr Ellis whether they considered Mr Akuhata would have understood the ss 9 and 14 hearings, in particular the language used in Court. Allowing for the limitations of retrospective assessment, both doctors considered he would have. Dr Shaw stated:

Currently, Mr Akuhata has sufficient cognitive resources and communication abilities to enable him to understand the nature of his appeal, and possible strategies used to build his case. Therefore, it seems sensible to conclude that he would also have had these abilities prior to his injury. He may have struggled to understand this information when in the recovery phase following his brain injury, but his recovery would have stabilised about 18 months post injury. After that time, his ability to understand information would likely be about the same as it is now — sufficient to enable him to participate meaningfully in court proceedings — albeit perhaps with a little extra effort from those assisting him.

Dr Barry-Walsh said:

Whilst he would have been limited in his abilities and there are problems in a retrospective assessment some five to six years after the legal process occurred, I consider it likely he would have been able to follow legal process at that time. ...

[95] As to Mr Akuhata understanding what was being said in Court during the s 14 hearing, as we have explained, Mr Akuhata asked to be excused from the courtroom following the morning adjournment and that application was granted

[96] The third point Mr Ellis advanced was that the focus of the s 14 hearing was wrongly on Mr Akuhata’s mental condition post his traumatic head injury, and not on his pre-injury state. This point was advanced briefly in Mr Ellis’ written submissions and was not elaborated upon at the hearing. Mr Ellis did not explain why Mr Akuhata’s mental state and abilities before his head injury were relevant to the determination the Court needed to make under s 14 of the CP (MIP) Act. In our view they had no relevance. The question for the Court was whether Mr Akuhata was unfit to stand trial. The answer depended on the assessments of his then current mental condition. That explains the series of updating reports, as Mr Akuhata’s mental health steadily improved. Although Mr Akuhata’s mental condition at the time he killed Ms Edwards on 27 July 2012 might be relevant had the case gone to trial (relevant to the issue of whether Mr Akuhata had the alleged murderous intent), it had no relevance at the s 14 hearing.

[97] None of the three points advanced in support of this ground has merit and we accordingly dismiss this ground.

F: Ground 1: Mr Akuhata’s guilty plea wrongly entered

[98] Although chronologically last, this was Mr Akuhata’s primary ground of appeal. As explained in [6] above, Mr Akuhata seeks to impugn his guilty plea on the grounds it was induced by a ruling under s 9 of the CP (MIP) Act that was wrong in law, and because Ms Cull had given Mr Akuhata incorrect advice about the non availability of certain defences or potential outcomes.

[99] We have already held that the High Court’s ruling under s 9 of the CP (MIP) Act was not wrong in law, so that basis for challenging the guilty plea falls away. Mr Ellis advanced a number of further points, in support of his submission that Mr Akuhata’s guilty plea was wrongly entered. Broadly, these points fall into three categories and we will deal with each in turn.

Judicial error or impropriety?

[100] First, Mr Ellis argued that it was improper for Asher J to accept Mr Akuhata’s guilty plea, because he had been a member of this Court when it heard and subsequently dismissed Mr Akuhata’s appeal against the High Court’s determination under s 14 of the CP (MIP) Act.

[101] We reject this. This Court had upheld the High Court’s ruling that Mr Akuhata was fit to stand trial. That in no way disqualified Asher J from accepting Mr Akuhata’s guilty plea and convicting him of murder. Indeed, having sat on the s 14 appeal, Asher J was particularly well qualified to accept the plea. He was alive to Mr Akuhata’s mental impairment. Mr Ellis acknowledges this, although as part of his submission that Asher J was disqualified from sitting. Mr Ellis submitted “Justice Asher was fully cognisant of the issues arising from the various health assessors, going to the heart of the question of whether Jimmy [Akuhata] was fit to plead”. We simply do not accept that there is any basis on which Asher J’s impartiality can be challenged. The authorities Mr Ellis referred us to all involved matters where, because of a prior decision or expression of view, a judge(s) was unable to bring an impartial mind to bear on the matter at hand. Here, Asher J’s view that Mr Akuhata was fit to stand trial cannot raise a concern as to his ability subsequently to accept a plea of guilty from Mr Akuhata. Mr Ellis did not articulate how any concern, as to impartiality or otherwise, could arise in that situation. And our view is that it could not.

[102] The second argument directed at Asher J was that he had failed to discharge “a juridical duty to verify the plea, despite the Guilty plea, and the amended summary of facts”. The platform for this submission is criticism of Ms Cull for not apprising the Judge of the various different versions of events Mr Akuhata had given to Mrs Visser, the timeline evidence (we understand this to be a reference to the call made on Ms Edwards’ cell phone in the early hours of 27 July 2012, referred to in [37] above), the spiked drinks evidence (which we refer to at [118]), Ms Edwards’ propensity to falling, and the time of death issues. Mr Ellis submitted the Judge should have made full inquiry into the circumstances of the guilty plea being instructed. He should have done that by closely questioning Mr Akuhata as to whether this was really, genuinely his plea and represented what he wished to do. When putting this to us, Mr Ellis added that Asher J should have proceeded “like the American Judge on TV”. If Mr Akuhata was still maintaining that Ms Edwards’ death was an accident, then in Mr Ellis’ submission the Judge would have uncovered that. Mr Ellis emphasised that this submission was an attack on the systemic approach of the High Court in taking a guilty plea from a mentally impaired person.

[103] We do not accept this submission. This Court had upheld the High Court’s determination that Mr Akuhata was fit to stand trial. That encompassed being fit to plead. Mr Akuhata was represented by very experienced counsel.[29] In those circumstances, the Judge had no duty to “verify” the plea Mr Akuhata entered. Indeed, we consider it would have been quite improper of the Judge to delve into the plea in the manner Mr Ellis suggests. Drawing from the decision of the Appeals Chamber of the International Criminal Tribunal for Rwanda in Kambanda v Prosecutor,[30] Mr Ellis submitted the tests should be: Was the guilty plea voluntary, informed, and unequivocal? If those tests are applied here then, for the reasons set out in [104] to [125] below, they are met.

Improper pressure from counsel and family?

[104] Mr Ellis submits that Mr Akuhata was improperly pressured into pleading guilty, both by Ms Cull and by his family.

[105] It is in respect of this submission that the lack of any evidence from Mr Akuhata is most telling. An allegation of improper pressure of this sort requires an evidential basis and there is none. There is nothing from Mr Akuhata and there has been no attempt to obtain evidence from any member of his family. What evidence and material we do have is all to the contrary effect.

[106] First, Ms Cull deposed that Mr Akuhata’s wish to plead guilty firmed up through five successive meetings with her between 5 February and 17 March 2015. Mr Akuhata first raised with her the possibility of his pleading guilty to murder at a meeting by AVL on 5 February 2015, inquiring what sentence he might then receive. Ms Cull’s note of that meeting records:

We talk about poss. of guilty plea + how MPI works + whether can get disc. for guilty plea.

He wants us to sit down + sort direction out + seriously wants to disc. g. plea.

[107] Ms Cull then outlined two further meetings with Mr Akuhata, this time face-to-face, on 19 February and 25 February. At both there was further discussion about a guilty plea to murder, and the likely minimum non-parole period should he do that. Ms Cull’s note of the 25 February meeting records:

He is waivering (sic) as to whether to go to trial. Sd perhaps we should do pre-trial + then make a decision. Sd he would have to therefore accept he deliberately held head under water with intent to kill her or didn’t care.

[108] That meeting was shortly before the Crown’s pre-trial application to admit propensity and hearsay evidence was heard. In relation to that evidence Ms Cull deposed:

[Mr Akuhata] was very concerned about the effect of the propensity and hearsay evidence the Crown was seeking to have admitted. He was concerned about the personal nature of this evidence and its use at trial. His concern was not just how it could seriously affect the outcome of the trial, but how its public release would affect his children and family.

[109] The High Court ruled the Crown’s propensity and hearsay evidence admissible on 3 March 2015. Ms Cull deposed to a further meeting with Mr Akuhata on 6 March. The consequences of the ruling were discussed and Ms Cull, having spoken to the Crown, advised Mr Akuhata that the Crown would not accept a plea of guilty to manslaughter. Ms Cull told Mr Akuhata that he could run a defence to the charge on the basis of “no intent”, explaining that whether the jury accepted this would depend on the Crown’s evidence and any evidence that Mr Akuhata elected to give.

[110] Ms Cull deposed that Mr Akuhata then advised her he did not want to go to trial and wanted to plead guilty. She held no concerns that Mr Akuhata understood what a guilty plea entailed, in terms of the facts he would be accepting. What followed is captured in Ms Cull’s contemporaneous note:

Sd very serious decision + would organise a further meeting with AD [Mr Aaron Dooney, her junior] + someone from Forensic Team to confirm again his decision + take written instructions.

He was happy with that.

[111] That further meeting took place on 17 March with Mr Dooney and Ms Dakers, a nurse from the forensic team who had dealt with Mr Akuhata through the court process and knew him and his history. Ms Cull said she wanted Mr Dakers there to confirm independently her view that there was no need for any further inquiry as to Mr Akuhata’s fitness to plead. We assume Ms Cull was concerned that about six months had elapsed since the s 14 hearing before Faire J on 26 June 2014. The outcome of that meeting was the following written instruction by Mr Akuhata:

I, Jimmy Akuhata, instruct my lawyers C Cull and A Dooney that I wish to plead Guilty to murder of: Ashlee Edwards

I accept that I held Ashlee Edwards under the water until she died. The Caption Summary as I discussed with C Cull today 17/3/15 is the correct version and I accept and acknowledge I will be sentenced according to what that Caption Summary says.

I understand that I will be sentenced to life imprisonment but the argument at sentence will be what minimum term of imprisonment will be. I hope that I will get a discount for my guilty plea. I have been told that the Crown will try to argue it should be 17 years but that Catherine will argue against that.

I have had explained the trial process and am sure that I do not want to go to trial. I want to plead guilty. I confirm the above by signing below. I have had this read to me. I sign in presence of C Cull, A Dooney, J Dakers:

“J. P. Akuhata”

____________________________

Signed: Jimmy Akuhata (17.3.15)

[112] Ms Cull was closely questioned by Mr Ellis about Mr Akuhata’s submission that he had been pressured into pleading guilty. She said that she was alive to potential for pressure, and her contemporaneous notes bear that out. Ms Cull noted Mr Akuhata telling her “my family says plead guilty, move on, (don’t) bring family down”. But she was not budged in her view that there was no undue pressure on Mr Akuhata to plead guilty.

[113] Second, there are the reports obtained by Mr Ellis from Drs Shaw and Barry Walsh. Mr Ellis asked each doctor to comment on the possibility that undue pressure led Mr Akuhata to plead guilty. Dr Shaw stated:

I do not think he would be susceptible to undue pressure to plead guilty, and I assume that his lawyer would have explained to him the difference between murder and manslaughter (this is an assumption, not a known fact. He cannot remember and I have not spoken to the lawyer involved). He has demonstrated the ability to use discretion when giving information and answering questions e.g. when first arrested by police he declined to comment, and in subsequent interviews he has expressed the wish to not answer some questions and instead discuss such matters with his lawyer. He currently demonstrates an understanding of the difference between murder and manslaughter.

[114] Dr Barry-Walsh said this:

As I have noted above it is difficult to do more than speculate about issues that have occurred so many years prior. I have already opined Mr Akuhata would not meet the test for unfitness to stand trial now. He displayed during my interview a good understanding of the differences between a guilty plea to manslaughter and murder and an awareness of the consequences of plea options. As has been commented by both Dr Pillai and Dr Shaw he has shown a capacity to be strategically selective in the information he provides. Assuming his deficits were stable I consider he probably would have been able, with the support of counsel, to make a decision as to plea with no more pressure than would normally be found in such circumstances.

[115] We accept there was pressure on Mr Akuhata from his family to plead guilty. But, because Mr Akuhata mentioned that at the 17 March 2015 meeting, each of Ms Cull, Mr Dooney and Ms Dakers was aware of that. We are confident that, if Ms Cull considered Mr Akuhata had come under undue pressure, she would have acted accordingly. Before us, she was adamant in her view that that was not the position. This challenge to the plea cannot succeed.

Other errors on Ms Cull’s part?

[116] Mr Ellis submitted Ms Cull had erred in failing to “alert” Asher J to the fact that he should not sit, and in failing to advise the Judge of the various matters set out in [102] above, so the Judge could “verify” Mr Akuhata’s guilty plea. For the reasons we have already given, we do not accept these criticisms.

[117] Next, Mr Ellis submitted that Ms Cull had failed to advise Mr Akuhata as to his available defences and had failed to investigate the effects of Mr Akuhata’s drinks being “spiked” on the night he killed Ms Edwards. Mr Ellis’ written submissions identified the available defences as:

(a) Mr Akuhata did not cause Ms Edwards’ death: she was not dead when he left her in the stream.

(b) Ms Edwards’ death was an accident.

(c) Self-defence.

(d) Temporary insanity.

(e) Automatism.

[118] We deal first with Mr Ellis’s criticism of Ms Cull in relation to the “spiked” drinks. As Ms Cull explained under cross-examination, this suggestion came from Mr Wiki (Mr Akuhata’s cousin) and Ms Dominique Wiri (a neighbour) in the evidence they gave at the s 14 CP (MIP) Act hearing. Both were recounting what Mr Akuhata had said to them in the course of his admissions that he had killed Ms Edwards by drowning her in the stream. Neither had observed Mr Akuhata’s drinks being “spiked”; neither had been at the nightclub with Mr Akuhata and Ms Edwards. As Mr Akuhata and Ms Edwards were at the nightclub together, and not in a group, it is inherently unlikely that someone else “spiked” Mr Akuhata’s drink or drinks. Mr Akuhata’s account to Mr Wiki suggested some “dudes” who had been looking at him and talking about him had “offered [Mr Akuhata] two glasses of Coke, both spiked”. There is also the evidential difficulty that the sample of Mr Akuhata’s blood tested by the ESR contained no traces of alcohol or drugs. Mr Ellis dealt with that by suggesting the testing did not include various “spiking” type drugs then in current use. We have no evidence as to whether or not that is correct. Our view is that the “spiking” suggestion is totally speculative, and we dismiss it.

[119] We return now to the five defences suggested by Mr Ellis. Mr Akuhata admitted he had caused Ms Edwards’ death, and that was the finding of the High Court at the s 9 CP (MIP) hearing. Nothing in the material before us indicates that Mr Akuhata ever suggested Ms Edwards was still alive when he climbed out of the stream. We mentioned in [109] above Ms Cull’s advice to Mr Akuhata that he could defend the murder charge on the basis that he had not intended to kill Ms Edwards. She obviously considered that only that was a tenable defence, and even then Mr Akuhata’s admissions stood in the way. We agree with Ms Cull’s assessment.

[120] We consider temporary insanity and automation were equally untenable. They had no evidentiary grounding.

[121] Ms Cull’s notes of the 17 March 2015 meeting at which Mr Akuhata instructed her that he wished to plead guilty record Mr Akuhata still talking about Ms Edwards’ death being an accident, or that he drowned her while trying to save himself. Although Ms Cull’s notes are not easy to decipher, what she noted Mr Akuhata as saying seems to us to be discursive and contradictory. It is as if he was still trying to persuade himself that he had not murdered Ms Edwards. But what is unequivocal is the written instruction to Ms Cull that he signed at the end of that meeting. And the inference is obvious: Mr Akuhata accepted that he had not killed Ms Edwards accidentally nor in self-defence.

[122] We see no error on Ms Cull’s part in relation to the defences suggested by Mr Ellis.

[123] Next, Mr Ellis submitted Ms Cull had erred in “misguidedly substituting the use of the court forensic nurse for a Neuropsychologist, or other qualified health assessor, in her meeting with Mr Akuhata on 17 March 2015 for the purpose of obtaining a guilty plea, and thereby obtaining one”.

[124] We referred in [111] above to Ms Cull’s reasons for asking Ms Dakers to attend that meeting. We consider Ms Cull should be complimented rather than criticised for taking the precaution of having a nurse from the forensic team present.

[125] Mr Ellis asked Drs Shaw and Barry-Walsh for their opinion as to whether it was appropriate to take guilty plea instructions without a defence psychologist or psychiatrist present, rather than a forensic nurse. Dr Shaw referred to the difficulty of offering an opinion so long after the event but did not feel that having a psychiatrist or psychologist present would have been necessary. Dr Barry-Walsh stated:

It would be unusual in my experience for a defence psychologist or psychiatrist to be present at the point at which counsel take plea instructions. Based on his presentation to me I believe with or without assistance from a forensic nurse, competent counsel would have been able to obtain instructions, and recognise any limitations in the instructions received from Mr Akuhata.

[126] None of the challenges to Mr Akuhata’s guilty plea has succeeded. Accordingly, this last but primary ground of appeal also fails.

G. Ground 8: Totality

[127] Taking the totality of the grounds of appeal, Mr Ellis submitted a substantial miscarriage of justice had occurred, together with major errors of law, down to the sentencing. As we have not found merit in any of the individual grounds, this submission also fails.

Conclusions on the appeal against conviction

[128] This undesirably long judgment is the consequence of our having to address eight grounds of appeal, raising in all some 21 points. Having done so, we state some overall conclusions.

[129] First, the process followed by the High Court for Mr Akuhata under the CP (MIP) Act cannot be faulted. It was correctly focussed at each of the two successive stages and was thorough.

[130] Second, Mr Akuhata’s plea of guilty to the charge of murder he faced cannot be impugned. No criticism can legitimately be levelled at the Judge who took the plea. Nor at counsel (Ms Cull) who represented Mr Akuhata when he entered the plea.

[131] Third, Mr Akuhata was, in our view, exceptionally well served by Ms Cull, who acted for him from shortly after his arrest until after he was sentenced. None of the many criticisms levelled at Ms Cull in this appeal has been made out.

[132] Fourth, Mr Akuhata has also been well served, in this appeal, by Mr Ellis. Mr Ellis has advanced every point that could legitimately be argued.

[133] Fifth, Mr Akuhata should now be satisfied that the criminal justice system has served him well and that he rightly faces the sentence imposed on him.

[134] Sixth, what has happened emerges with tolerable clarity from the mass of material placed before us. In a fit of jealous rage Mr Akuhata threw or pushed Ms Edwards over the parapet of the bridge into the stream below. He then climbed down or jumped into the stream and held Ms Edwards’ head under the water until she was lifeless. He made his way home, soaking wet and very upset, and admitted what he had done to his cousin, his friend and his neighbour. He admitted it again to a fellow inmate in prison the next day. But he declined to say anything to the police.

[135] As Mr Akuhata recovered from the traumatic head injury inflicted on him in prison four months after he murdered Ms Edwards, Mr Akuhata began struggling, increasingly, with the enormity of what he had done and its consequences.

[136] He offered various, and conflicting, accounts to the medical professionals who examined him over the succeeding two years.

[137] Even at the meeting on 17 March 2015, at which he finally instructed Ms Cull that he wished to plead guilty to murder, Mr Akuhata was still trying to persuade himself that Ms Edwards’ death was an accident, or that he had killed Ms Edwards defending himself. Ms Cull’s notes record that. But, after pleading guilty, Mr Akuhata knew he had done the right thing. He said as much to the probation officer who reported to the sentencing judge.

[138] Mr Akuhata made a considered decision not to appeal his sentence.

[139] Since then, Mr Akuhata has changed his mind. Confronted with the bleak prospect of at least 15 years in prison, he has compared his sentence with those imposed on another or other prisoners convicted of manslaughter. This has led him again to try and convince himself that he killed Ms Edwards accidentally. These things emerge from the reports, particularly the commendably forthright report by Dr Barry Walsh.

[140] What has happened is encapsulated exactly in the passage from this Court’s judgment in Merrilees set out in [7] at the start of this judgment.

Sentence appeal

[141] Mr Akuhata seeks an extension of time to appeal his sentence. His proposed sentence appeal is some two years out of time. As this Court observed in R v Slavich, extension of time applications routinely reduce to two questions. First, why was the appeal filed late? Second, what, if any, merit does the prospective appeal appear to have?[31]

[142] The notice of appeal gives two answers to the first question. First, the appeal was filed late due to Mr Akuhata’s brain injury and possible intellectual disability since birth. There is no evidence, however, of an intellectual disability. Further, the medical consensus by the time of sentencing was that Mr Akuhata had “largely recovered” from his traumatic brain injury and that recovery would continue.[32]

[143] Second, Mr Akuhata “had two previous lawyers who advised no appeal grounds”. This could justify an extension of time, even at this very late stage, if any of the appeal points appears to have merit.

[144] In terms of those merits, Mr Ellis had relatively little to say. He explained that he had focussed on the appeal against conviction, which he had hoped would succeed, rendering any appeal against sentence superfluous. He suggested the Court might accept further submissions, or call for a further report, in respect of sentence if it dismissed the appeal against conviction.

[145] The answer to that suggestion is no. The attempt to appeal against sentence is already two years out of time and we decline to delay consideration further.

[146] As it stands, there are two points to the proposed sentence appeal. First, having noted Mr Akuhata’s mental difficulties, Ellis J did not allow any discount to reflect those difficulties. While it would have been preferable for the Judge to have declined to do that expressly, explaining her reasons, she was entitled not to give a discount. Although Ms Cull had submitted to Ellis J that Mr Akuhata’s mental difficulties would make prison tougher for Mr Akuhata, she could not point to medical evidence supporting that. As noted, in [142] above, the medical consensus was that Mr Akuhata had “largely recovered” from his traumatic brain injury and that recovery would continue. His pre-injury mild mental impairment was not atypical of many other prisoners. Accordingly, this point would not succeed.

[147] Second, it is submitted Ellis J should have called for a report under s 27 of the Sentencing Act 2002. The relevant part of that section provides:

27. Offender may request court to hear person on personal, family, whanau, community, and cultural background of offender

(1) If an offender appears before a court for sentencing, the offender may request the court to hear any person or persons called by the offender to speak on—

(a) the personal, family, whanau, community, and cultural background of the offender:

(b) the way in which that background may have related to the commission of the offence:

(c) any processes that have been tried to resolve, or that are available to resolve, issues relating to the offence, involving the offender and his or her family, whanau, or community and the victim or victims of the offence:

(d) how support from the family, whanau, or community may be available to help prevent further offending by the offender:

(e) how the offender’s background, or family, whanau, or community support may be relevant in respect of possible sentences.

...

[148] At sentencing, Ms Cull did not request Ellis J, pursuant to s 27(1), to hear from any person or persons. When Ms Cull represented Mr Akuhata at his sentencing, she had been practising from Kaikohe in Northland for some 14 years. She would have been only too aware of the social deprivation among Northland Maori and its consequences in terms of criminal offending. As we have noted, Mr Akuhata is a Maori man of Nga Puhi descent. We think it significant that Mr Ellis did not, in cross-examining Ms Cull before us, put it to her that she had erred in not utilising s 27 for Mr Akuhata’s sentencing.

[149] However — and perhaps somewhat inconsistently — Mr Ellis did submit that Ellis J could and should have used her power under s 27(5) to suggest to Ms Cull that it may assist the Court to hear from a person or persons under s 27. Section 27(5) provides:

...

(5) If an offender does not make a request under this section, the court may suggest to the offender that it may be of assistance to the court to hear a person or persons called by the offender on any of the matters specified in subsection (1).

[150] In his dissent on this s 27 issue, Whata J has referred to this Court’s comments on s 27 in Zhang v R.[33] He could also have mentioned his own, earlier, judgment in Solicitor-General v Heta,[34] which provided context to s 27 and drew attention to its utility. Heta was referred to, with obvious approval, in Zhang.[35]

[151] We accept that a failure to engage s 27 could provide a proper basis to reconsider sentence, in an appropriate case. But the appellant must provide enough information to satisfy the Court that the failure to engage the s 27 process has resulted in the overlooking of matters that may have impacted on sentence. Our main difficulty with Mr Ellis’ submission is that he did not seek this Court’s leave to file further cultural/background material pursuant to s 27 for the hearing of this appeal. We must thus deal with Mr Ellis’ criticism of the sentencing judge for not exercising her s 27(5) power without knowing what material the exercise of that power might have produced.

[152] Mr Ellis acknowledged during the hearing that “perhaps he should have” obtained a cultural report for the purposes of the appeal. If the conviction appeal was unsuccessful, he suggested the Court could adjourn the sentence appeal so that a s 27 report could be obtained. But Mr Ellis did not, even in a general way, indicate what personal or cultural information he believed had been overlooked: information that would have materially impacted on the sentencing outcome.

[153] None of the many medical reports to the High Court, nor the pre-sentence report, contains any suggestion that Mr Akuhata’s criminal offending had its genesis in social deprivation or in any other matter that might have come to the fore in material adduced under s 27. The medical reports do mention problems with illicit drugs, including methamphetamine, and with alcohol.

[154] This Court now has three further medical reports prepared for this appeal. In the report of Dr Barry-Walsh there is a detailed account of Mr Akuhata’s background from the time he was a young child, up to the time he murdered Ms Edwards. This background includes Mr Akuhata describing his home and family life as “good”, and denying any exposure to domestic violence or abuse, except when an uncle came to stay and there were fights between the uncle and the uncle’s girlfriend. The background also records that both Mr Akuhata’s parents worked, his father as a truck driver and his mother as a caregiver. There is reference also to Mr Akuhata’s education: he was happy at school despite having learning difficulties. He denied any bullying. He then went on to a regional training centre and had various jobs, although he observed that he had problems keeping a job.

[155] It is also apparent that Mr Akuhata has had the support of his family, particularly

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his mother, throughout his lengthy journey through the criminal justice system in respect of the charge of murdering Ms Edwards. Dr Barry-Walsh’s report records at some length information provided to him by Mr Akuhata’s mother. [156] In referring to the medical reports, we are not to be taken as suggesting they substitute adequately for material under s 27. Rather, they may explain why neither counsel nor the Court at sentencing considered resort to s 27 might assist. [157] But the overriding point about Mr Akuhata’s sentence is that it is not manifestly excessive. Life imprisonment was mandatory, so only the minimum non-parole period of 15 years could be challenged. We do not consider it can be, because it appropriately reflected the discount that was properly available to Mr Akuhata for his guilty plea. [158] All these points combine to compel the conclusion that the proposed appeal against sentence is without merit. Accordingly, we refuse the application for an extension of time to appeal sentence. WHATA J [159] I agree with Wild and Katz JJ in all respects, save that I would have afforded Mr Akuhata an opportunity to file evidence dealing with the s 27 matters prior to resolving his application for leave to appeal sentence out of time. Section 27 enables an offender to present background information to the sentencing judge. A sentencing judge may also suggest to an offender that information on the matters specified at subs (1) may be of assistance to the court. The potential utility of s 27 was recently highlighted by the full Court of Appeal in Zhang in this way:[36] [159] First, ingrained, systemic poverty resulting from loss of land, language, culture, rangatiratanga, mana and dignity are matters that may be regarded in a proper case to have impaired choice and diminished moral culpability. Where these constraints are shown to contribute causatively to offending (whether associated with addiction or not), they will require consideration in sentencing. [160] Secondly, distinct rehabilitative and reintegration considerations applicable to Maori that make use of the power in s 25 of the Sentencing Act to adjourn sentencing to enable rehabilitative programmes to be undertaken are particularly relevant. .... [161] Thirdly these are matters where the right to address the court on personal, family, whanau, community and cultural background and support under s 27 of the Sentencing Act is clearly relevant. [162] Fourthly, social, cultural or economic deprivation that has a demonstrative nexus with the offending may be presented in mitigation regardless of the specific ethnicity of the offender. Likewise, the tools available in ss 25 and 27 are there for use by any relevant offender. (emphasis added) [160] The full Court’s reference to an offender’s “right” to address the court emphasises the importance of the s 27 process to the sentencing. For my part then, the failure to engage s 27 may provide a proper basis for reconsideration of sentence by this Court on appeal. It also evident that Ms Cull did not request Ellis J pursuant to s 27(1), to hear from any person or persons and Ellis J did not suggest that it would assist her to hear from such persons. It seems to me then that there is a real issue to be considered on appeal, namely whether the sentencing process was procedurally and substantively unfair to Mr Akuhata because of the apparent omission to engage s 27. [161] I acknowledge that, unhelpfully, we do not know what material the exercise of power might have produced. I also acknowledge that the information available to the Court suggests that the omission may not be material to the result for the reasons expressed by Wild and Katz JJ at [157]. And it counts strongly against Mr Akuhata that he has not already identified the s 27 information he says was and is relevant to his sentence. But given the procedural as well as substantive significance of the s 27 process to sentencing, as affirmed by the full Court in Zhang, the added burden to the Crown and to the Court of affording Mr Akuhata the opportunity to identify the relevant s 27 matters is in my view justified. Result [162] The application for an extension of time to appeal against conviction is granted. [163] The appeal against conviction is dismissed. [164] The application for an extension of time to appeal against sentence is refused. ------------------------------------------------------- [1] R v Akuhata [2015] NZHC 1098. [2] R v Le Page [2005] NZCA 67; [2005] 2 NZLR 845 (CA) at [16]. See also R v Proctor [2007] NZCA 289 at [4]. [3] At [19]. [4] R v Merrilees [2009] NZCA 59 at [34]. [5] Richmond v R [2016] NZCA 41; and Hutchins v R [2014] NZCA 485. [6] R v Merrilees, above n 4, at [35]. [7] Counsel showed us file photographs of the bridge. We recognise it as a standard Ministry of Works construction with familiar concrete parapets approximately one metre high. [8] We have drawn this summary of the facts largely from the judgment of Woodhouse J following the s 9 hearing: R v Akuhata [2013] NZHC 3012 (Section 9 decision). [9] R v Akuhata [2013] NZHC 2669 [Procedural decision for s 9 hearing]. [10] R v Te Moni [2009] NZCA 560 at [72]–[81]; McKay v R [2009] NZCA 378, [2010] 1 NZLR 441 at [90]–[95]; Ruka v R [2011] NZCA 404, (2011) 25 CRNZ 768; and R v Jeffries [2012] NZCA 608 at [34]–[36]. [11] Section 9 decision, above n 8. [12] Section 9 decision, above n 8, at [18]. [13] Procedural decision for s 9 hearing, above n 9, at [20]. [14] Section 9 decision, above n 8,at [15]. [15] Mr Ellis’ written submissions simply refer to Mr Akuhata being “unfit”. We assume Mr Ellis means “unfit to stand trial”, as that phrase is defined in s 4 of the CP (MIP) Act. [16] Those were appearances in relation to other matters. Mr Akuhata has 17 previous convictions for violence, disorderly behaviour, theft, unlicensed driving and possession of cannabis. These span the period 2003–2011. [17] R v Akuhata [2014] NZHC 1008 at [15]. [18] Criminal Procedure (Mentally Impaired Persons) Act 2003, s 38(1). [19] Section 38(2)(c). [20] The term “secure facility” has the meaning given to it by s 9(2) of the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003. It is a facility designed and operated to prevent persons required to stay in it from leaving without authority. [21] This is the date on which Dr Shaw interviewed Mr Akuhata at Auckland Prison. Her report is undated. We also note that it is not prepared in a form appropriate for submission to the Court. There is no acknowledgement of the Code of Conduct for Expert Witnesses nor undertaking to comply with s 82 of the Criminal Procedure Act 2011. We assume that is because Dr Shaw thought it was for Mr Ellis’ purposes only. We nevertheless appreciate having this comprehensive report. [22] We refer to the view expressed by the High Court in Maangi v Police [2016] NZHC 2571 at [29] that a s 9 hearing is a criminal proceeding for the purposes of s 30 and find that a s 14 hearing is also a “criminal proceeding” for the purposes of s 30, or is at least a hearing in a criminal proceeding. [23] The point was left open by the High Court in Togia v Police HC Wellington CRI-2007-485-37, 17 March 2009, particularly at [222]. [24] At [222]. [25] R v JPA [2014] NZHC 1534. [26] JA (CA402/2014) v R [2014] NZCA 590. [27] Dixon v R [2013] EWCA Crim 465; [2013] 3 All ER 242 at [97]. [28] R v JPA, above n 25, at [13]–[18]. [29] In her affidavit Ms Cull outlined her legal experience. She was admitted to the bar at the end of 1985. She had practised for some nine years with the Crown Solicitors in Auckland and Christchurch. She had been in a private law firm for three years and then had practised as a barrister sole, first in Christchurch and then in Kaikohe, for some 22 years. She had prosecuted and defended numerous criminal trials, including murder trials. Her experience included youth advocacy and appointments as lawyer for a child. The Ombudsman had retained her as an investigating officer for South Island prisons. She had acted for many defendants suffering from mental impairments and had conducted several ss 9 and 14 CP (MIP) Act hearings. She had acted for defendants who had been found fit to plead, although they had also been found to have some mental impairment. [30] Kambanda v Prosecutor (Judgment) ICTR Appeals Chamber ICTR 97-23-A, 19 October 2000. [31] R v Slavich [2008] NZCA 116 at [14]. The Court in Slavich was summarising the effect of its earlier decisions in R v Knight [1998] 1 NZLR 583 at 587–589, R v Lee [2006] NZCA 60; [2006] 3 NZLR 42 at 72–73 and R v Davis [2007] NZCA 577 at [9]–[13]. [32] Dr Barry-Walsh’s words. [33] Zhang v R [2019] NZCA 507. [34] Solicitor-General v Heta [2018] NZHC 2453, [2019] 2 NZLR 241. [35] Zhang, above n 33, at [159]. [36] Above at n 33, at [159]–[162].
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