The Solicitor-General v Michael John Dougherty

• Jurisdiction: New Zealand
• Judge: Simon France J
• Judgment Date: 03 September 2012
• Neutral Citation: [2012] NZCA 405
• Docket Number: CA492/2011
• Court: Court of Appeal
• Date: 03 September 2012

Between

The Solicitor-General

Appellant

and

Michael John Dougherty

Respondent

[2012] NZCA 405

Court:

Glazebrook, Arnold and Simon France JJ

CA492/2011

IN THE COURT OF APPEAL OF NEW ZEALAND

Appeal from District Court decision holding that respondent was unfit to stand trial — respondent was charged with 74 counts of filing false GST returns — respondent suffered from delusional disorder centring on the Inland Revenue Department (“IRD”) and considered that he was being persecuted by the IRD — delusional disorder qualified as mental impairment under Criminal Procedure (Mentally Impaired Persons) Act 2003 (“CPMIPA”) — Judge considered an ability to give partial instructions against a background where a delusional disorder distorted the perception as to why the prosecution had been brought was not a combination that allowed respondent to make his version of facts known to the Court and counsel — extent to which CPMIPA changed approach to “unfitness to stand trial” inquiries in issue — whether “decisional competence” was part of the fitness assessment.

Counsel:

C L Mander for Appellant

C J Tennet for Respondent

JUDGMENT OF THE COURT

REASONS OF THE COURT

(Given by Simon France J)

Introduction

1 The Solicitor-General appeals the decision of Judge Kiernan holding that Mr Dougherty is unfit to stand trial. 1 Mr Dougherty is charged with 74 counts of filing false GST returns.

2 It seems that Mr Dougherty is generally a capable person of average or better intelligence. However, he suffers from a delusional disorder centring on the Inland Revenue Department. He considers not only that he is being persecuted by the Department, but that the Commissioner of Inland Revenue persecutes many people within the community with the aim of forcing them to commit suicide. Mr Dougherty also suffers from depression.

3 Mr Dougherty's delusional disorder qualifies as mental impairment within the meaning of that term in the Criminal Procedure (Mentally Impaired Persons) Act 2003. Because of the nature of his mental impairment, which is directed towards the informant, an issue arose as to whether he was fit to stand trial on the 74 tax fraud charges. Section 4 of the Act sets out when a mentally impaired person is unfit to stand trial:

unfit to stand trial, in relation to a defendant,—

• (a) means a defendant who is unable, due to mental impairment, to conduct a defence or to instruct counsel to do so; and

• (b) includes a defendant who, due to mental impairment, is unable—

  • (i) to plead:

  • (ii) to adequately understand the nature or purpose or possible consequences of the proceedings:

  • (iii) to communicate adequately with counsel for the purposes of conducting a defence.

4 The key test, then, is whether, because of the impairment, Mr Dougherty is unable to conduct a defence or to instruct counsel. Paragraph (b) of s 4 identifies some of the capacities an accused person must have before it can be said he or she is able to conduct a defence and instruct counsel. It is not an exhaustive list. There is no issue in this case that Mr Dougherty understands the charges, is able to plead, can follow court proceedings and appreciates the jeopardy he is in. The sole issue is whether, because of his delusion about the Inland Revenue Department, he can adequately instruct counsel, and consequently conduct a defence. The District Court concluded he could not.

5 Section 19 of the Act provides for prosecution appeals against such findings, but only on a question of law. It prescribes no particular process for the appeal, other than to incorporate the appeal provisions of the Crimes Act 1961, with necessary modifications. Accordingly, based on an analogy with s 380(6) of the Crimes Act 1961, the case stated procedure has been used. The ultimate question posed for the Court is whether, in reaching her decision, the Judge applied an incorrect test.

An abandoned trial

6 The allegation is that over a period of several years, Mr Dougherty incorporated 48 companies to facilitate his alleged fraudulent activity. It is said that many or most of the persons identified as directors or shareholders of the companies were false, and that the various trading activities identified for the companies were also fictitious. None traded, but each purported to file GST returns. However, seemingly to avoid detection, no company filed more than two returns. The allegation is that, between 3 March 2000 and 17 May 2006, there were 74 fraudulent returns from which Mr Dougherty received over $800,000.

7 A trial of the allegations took place in August 2010 before a jury. However, on the second day of trial, counsel for Mr Dougherty raised issues about his client's fitness to stand trial. Judge Field declared a mistrial, and requested the forensic nurse on call to assess Mr Dougherty. The assessment concluded that whilst Mr Dougherty appeared fit to stand trial, there may be an issue as to his ability to make:

balanced, well reasoned decisions throughout a potentially protracted court case, on issues of relative complexity and seriousness …

8 The report recommended that Mr Dougherty be assessed by appropriate health practitioners, and this was duly ordered. As part of the fitness to stand trial process, Judge Kiernan completed the required assessment under s 9 of the Act. Her Honour determined, on the balance of probabilities, that Mr Dougherty was responsible for the acts which form the basis of the charges. There is no challenge to that finding.

9 Reports from two psychiatrists were obtained, and both also gave oral evidence. In order to better consider the significance of this evidence, it will be helpful to set out in general terms the debate over the legal test to which this evidence is directed.

The legal issue

10 At the heart of the dispute between the parties is the extent to which the Criminal Procedure (Mentally Impaired Persons) Act changes the approach to “unfitness to stand trial” inquiries that had been established under the previous legislation. In particular, is “decisional competence” now part of the fitness assessment? Decisional competence is intended to embrace the idea that not only must an accused person be able to communicate and instruct counsel, but in so doing, he or she must also be able to rationally assess what defence would be in his or her best interests, and be able to choose that defence.

11 The approach that prevailed under the Criminal Justice Act 1985 was that decisional competence was not part of the inquiry. That position is captured succinctly in R v Power: 2

That test [under s 108 of the Criminal Justice Act] does not require that the appellant actually give instructions which are in his or her best interests. A high 3 threshold of fitness, including a best interests component, would

derogate from the fundamental principle that accused persons are entitled to choose their own defences and to present them as they choose …

12 The law as set out in Power was settled law. However, subsequent to the enactment of the new legislation, there are decisions of the High Court, notably P v Police 4 and R v Roberts, 5 that could be taken as saying that the Act has effected a change, and that Power no longer represents the law. 6 The new approach, if it exists, is captured by how Fogarty J in Roberts rephrased the question to be addressed by the health assessors: 7

So the question is whether or not [R] is “ unable, due to mental impairment, to conduct a [rational] defence or to instruct counsel to do so”, in this case.

(Judge's emphasis)

13 Whilst the italicised words are almost a direct lift from the text of s 4(a) of the current Act, the Judge has added the word [rational] to the statutory language. The purpose of doing this was to make decisional competence, or a best interests inquiry, part of the fitness to stand trial test.

14 The Solicitor-General's position is that the statement of the question posed in Roberts is contrary to Power, and is wrong. It is further submitted that the only explanation for the decision reached in the present case is that Judge Kiernan has applied the Roberts formulation, and this had led the Court into error.

15 The respondent does not dispute that the District Court has applied the High Court decisions. Mr Tennet submits Judge Kiernan was correct to do so as those decisions accurately stated the law under the present Act. Accordingly, the Crown appeal is to be seen as merely a challenge to the factual findings, and flawed for that reason. Mr Tennet submits that, from a policy perspective, greater flexibility is to be encouraged in an area where understanding of mental impairment and its effects has increased significantly.

16 Against that background we return to the medical evidence in the present case.

Psychiatric assessments

(a) Dr Pillai

17 Dr Pillai initially assessed Mr Dougherty in September 2010. Then, together with a second psychiatrist, Dr Djokovic, he further interviewed Mr Dougherty on the morning of the oral hearing, 15 February 2011.

18 In his initial report Dr Pillai identified Mr Dougherty as being depressed, and as having feelings of being persecuted. He described Mr Dougherty as being totally preoccupied with the perceived injustice of the allegations and charges against him. At that time Dr Pillai did not consider these sentiments were yet being felt with an intensity that justified them being classified as delusional. He noted that Mr Dougherty was able to be diverted from them and was, in his own way, willing to accept alternative explanations for his experiences.

19 Following the further assessment undertaken on the morning of the fitness hearing, Dr Pillai's diagnosis changed. He considered his original diagnosis may have been conservative as regards the symptoms of persecution, and now agreed with Dr Djokovic that Mr Dougherty suffered from a delusional disorder. Initially, Dr Pillai had...