SILVIA CARTWRIGHT, Governor-General
ORDER IN COUNCIL
At Wellington this 13th day of June 2002
RIGHT HONOURABLE HELEN CLARK PRESIDING IN COUNCIL
Her Excellency the Governor-General, acting under section 406 (a) of the Crimes Act 1961 and on the advice and with the consent of the Executive Council, refers the question of the conviction of Peter Zane Bryers for the offence of sexual violation by rape to the Court of Appeal for hearing and determination. The background to the reference, and the reason for it, appear in the Schedule.
1. Interpretation-In this Schedule-
applicant means Peter Zane Bryers.
2. Information about trial, appeal, and serving of sentence and liability to detention in hospital-(1) On
12 September 1996, the applicant was convicted in the District Court at Auckland on one count of sexual violation by rape.
(2) On 26 September 1996, the applicant was sentenced by the District Court at Auckland to seven years' imprisonment.
(3) On 3 September 1998, the Court of Appeal-
(a) dismissed the applicant's appeal against his conviction; and
(b) dismissed his appeal against sentence.
(4) On or about 7 April 2000, an order was made under section 45 (2) of the Mental Health (Compulsory Assessment and Treatment) Act 1992 as a result of which the applicant served the balance of his sentence as a special patient under that Act. The applicant has ceased to be liable to be detained under his sentence but remains subject to a compulsory treatment order.
3. Circumstances of applicant's plea of guilty-(1) On first appearing in the District Court at Auckland, on 20 May 1996, the applicant was assigned counsel, Mr Adam Couchman, who sought and obtained a referral of the applicant to Forensic Psychiatric Services.
(2) A series of psychiatric reports were commissioned and completed in relation to the applicant's mental state, culminating in a report dated 4 September 1996 by Dr David Chaplow, in which Dr Chaplow concludes that, in his opinion, the applicant was not under legal disability.
(3) On 27 June 1996, because of concerns about the applicant's proposed plea, Mr Adam Couchman sought
the leave of the District Court to withdraw from the case, and was replaced by Mr Richard Earwaker.
(4) On 26 August 1996, the applicant gave Mr Earwaker written instructions that the applicant wished to plead guilty to the charge of rape. On 12 September 1996, because of his concerns about the applicant's proposed plea, Mr Earwaker had the applicant confirm his written instructions in the presence of Mr Couchman.
(5) The applicant then pleaded guilty and a conviction was entered.
4. Applicant's first application for exercise of mercy of the Crown-(1) The applicant made an application, by informal letter to the Governor-General in late 1998, for the exercise of the mercy of the Crown in respect of his conviction for sexual violation by rape.
(2) The grounds of the application were-
(a) that the applicant had inadequate legal representation at his trial and, in particular, that the applicant was wrongly advised by his counsel to plead guilty; and
(b) that the complainant had consented to the sexual connection concerned.
(3) The applicant was declined.
5. Applicant's second application for exercise of mercy of the Crown-(1) The applicant made a second application, dated 16 January 2002, for the exercise of the mercy of the Crown in respect of his conviction for sexual violation by rape.
(2) The grounds of the application are, among others, that there is fresh evidence-
(a) that casts doubt on the fitness of the applicant to plead at the time he was called upon to do so; or
(b) that indicates that a defence of insanity may have been available to the applicant.
6. Documents-The applicant tendered the following documents, among others, in support of the application:
(a) an affidavit dated 30 March 2001 by Mr Adam Couchman setting out his-
(i) anxiety about the mental state of the applicant; and
(ii) reasons for withdrawing from the case;
(b) an affidavit dated 30 July 2001 by Mr Richard Earwaker setting out the circumstances of the applicant's pleading guilty to the charge;
(c) a report dated 29 December 2000 by Dr David Chaplow, in which Dr Chaplow concludes that, in his opinion, the applicant, at the time of being called upon to plead, "may have been adversely affected by delusional perceptions swaying him to plead guilty rather than allowing his counsel to put a defence of æinsanity' to the Court".
7. Reason-The reason for the reference is that the documents described in clause 6 indicate that evidence is available that could lead the Court of Appeal to the conclusion that the applicant may not have been fit to plead at the time he was called upon to do so, or may have had available to him a defence of insanity, and that a miscarriage of justice might have occurred.
MARIE SHROFF, Clerk of the Executive Council.