Akuhata v R

• Jurisdiction: New Zealand
• Judge: Wild J,Whata J
• Judgment Date: 20 February 2020
• Neutral Citation: [2020] NZCA 19
• Date: 20 February 2020
• Docket Number: CA466/2017
• Court: Court of Appeal

Between

Jimmy Peter Akuhata

Appellant

and

The Queen

Respondent

[2020] NZCA 19

Court:

Wild, Whata and Katz JJ

CA466/2017

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

Criminal Sentence — appeal against conviction for murder and sentence of life imprisonment — appeal procedure where guilty plea entered — fitness to stand trial — sentence appeal was two years out of time Court failure to order a cultural report — Criminal Procedure (Mentally Impaired Persons) Act 2003 — Sentencing Act 2002

Counsel:

A J Ellis and B J R Keith for Appellant

K S Grau and J M Irwin for Respondent

• A The application for an extension of time to appeal against conviction is granted.

• B The appeal against conviction is dismissed.

• C The application for an extension of time to appeal against sentence is refused.

JUDGMENT OF THE COURT

REASONS OF THE COURT

(Given by Wild J)

	Para No
Wild and Katz JJ	[1]
Whata J	[159]

Table of contents

	Para No
Introduction	[1]
Court's approach to this appeal	[5]
The Criminal Procedure (Mentally Impaired Persons) Act 2003 (CP (MIP) Act)	[8]
Background	[10]
The grounds of appeal	[24]
A: Ground 2: The s 9 CP (MIP) Act hearing was unfair and the decision lacked reasons	[25]
Actus Reus	[31]
Time of death	[34]
No robust defence	[39]
Mr Akuhata unfit for the s 9 hearing	[44]
No reasoning	[46]
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]
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]
Detention in Mason Clinic unlawful and/or arbitrary?	[64]
Not treated with humanity?	[67]
Periods of detention unlawfully long?	[71]
Dr Pillai's assessments and report unlawful?	[72]
Error on Ms Cull's part?	[73]
D: Ground 4: (sic) No right to counsel, to silence, or to refuse medication	[75]
Rights to silence, to legal advice, and to refuse medication breached?	[76]
Mrs Visser and Drs Goodwin and Pillai not independent of each other?	[84]
E: Ground 5: The s 14 CP (MIP) Act hearing was unfair	[86]
F: Ground 1: Mr Akuhata's guilty plea wrongly entered	[98]
Judicial error or impropriety?	[100]
Improper pressure from counsel and family?	[104]
Other errors on Ms Cull's part?	[116]
G: Ground 8: Totality	[127]
Conclusions on the appeal against conviction	[128]
Sentence appeal	[141]
WHATA J	[159]
Result	[162]

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...