Wharekura v R - [2025] NZCA 146
Date of Judgment
08 May 2025
Decision
Summary
Criminal law - application to adduce fresh evidence and application for an extension of time to bring appeal against conviction.
The application to adduce fresh evidence is granted.
The application for an extension of time to appeal is declined.
John Wharekura stabbed Tanya Burr to death in September 2002. In May 2003, he pleaded guilty to her murder. In August 2003, he was sentenced to life imprisonment with a minimum period of imprisonment of 14 years. In the leadup to his guilty plea, Mr Wharekura was assessed by two different psychiatrists, Dr Majeed and Dr Simpson, both of whom found that Mr Wharekura was fit to plead and stand trial and that he did not qualify for the defence of insanity. Dr Simpson concluded, for instance, that there was no evidence that Mr Wharekura was experiencing psychotic symptoms at the material time.
In 2008, about six years after the index offence, Mr Wharekura first came to the attention of prison mental health services. In October 2008, he was assessed by a psychiatrist and found to be acutely psychotic. By August 2009, Mr Wharekura had an established diagnosis of paranoid schizophrenia and his psychotic symptoms included auditory hallucinations.
Mr Wharekura reported that his psychotic symptoms resolved in early 2015. He appeared before the Parole Board in October 2016. The Board recorded that, in its view, Mr Wharekura killed Ms Burr because of his untreated psychotic illness at the material time. In September 2018, Mr Wharekura was released on parole. Towards the end of 2019, there were once again concerns about his mental health, and he was recalled to prison in December 2019.
In August 2021, following a serious incident in prison, Mr Wharekura was charged with wounding with intent to cause grievous bodily harm. In September 2022, he was found not guilty of that charge by reason of insanity.
Mr Wharekura seeks an extension of time - of more than 20 years - to appeal against his murder conviction. He says that subsequent psychiatric investigations show that he was likely insane when he killed Ms Burr. To support his application for an extension of time, Mr Wharekura wishes to adduce fresh evidence, being a psychiatric report prepared by Dr Joseph in November 2024.
Should the application to adduce fresh evidence be granted?
Held: Yes.
Dr Joseph's report and opinion largely rely on events that have occurred since Mr Wharekura pleaded guilty. The evidence is fresh in that sense. It is also credible, given Dr Joseph's qualifications and experience. Although we have reservations about the cogency of Dr Joseph's opinion, we prefer to deal with those when addressing the merits of the proposed appeal. The fresh evidence requirements of credibility, freshness and cogency are therefore satisfied.
Should the application for an extension of time to appeal be granted?
Held: No.
The touchstone for whether to grant an extension of time is the interests of justice in the particular case. The interests of justice may call for balancing the wider interest of society in the finality of decisions against the interest of the applicant in having their conviction reviewed. A long delay is a major factor weighing against leave being granted and, if unexplained, will usually be decisive. Mr Wharekura's delay in bringing an appeal is very long: more than 20 years. We do not accept that Mr Wharekura's account provides an adequate explanation for this very long delay. Even if we accept his account that he had been hearing voices since he was a young child and that those voices commanded him to kill Ms Burr and not to speak about them to anyone else, a significant part of the more than 20-year delay remains unexplained. By 2016, Mr Wharekura's psychotic symptoms had (temporarily) resolved. His psychiatrist was reporting a substantial improvement in his mental state, and the Parole Board even said that, in its view, his crime occurred because of his untreated psychotic illness. Concerns about Mr Wharekura's mental health were not raised again until late 2019, by which time he had spent more than a year in the community on parole. In the intervening period, there were clear signals to Mr Wharekura that an insanity defence should be explored. Mr Wharekura does not explain why he did not advance an appeal during this period.
Mr Wharekura pleaded guilty. It is only in exceptional circumstances that a court will allow an appeal against conviction entered as a result of a guilty plea. Not only do Mr Wharekura's circumstances not fit easily within the generally recognised categories of exceptional circumstances, but also his guilty plea was unsurprising in all the circumstances. The availability of an insanity defence was considered thoroughly in the lead-up to his guilty plea, and his case is very different from those where trial counsel did not examine the possibility of an insanity defence.
The underlying merits of Mr Wharekura's insanity defence appear weak. The contemporary evidence is inconsistent with Mr Wharekura being insane at the time of the killing. Police obtained statements from people who interacted with Mr Wharekura on the evening of Ms Burr's death, none of whom described him as exhibiting any unusual behaviour. When speaking to a police detective just two days after the killing, Mr Wharekura presented as calm and relaxed and gave a detailed and coherent account of his actions. The transcript of that interview does not give any hint that, as is now claimed, Mr Wharekura was answering questions at the direction of voices in his head. The contemporaneous psychiatric evidence presents a formidable hurdle for Mr Wharekura to overcome on his proposed appeal. While we acknowledge that Dr Joseph has prepared a detailed report and draws on Mr Wharekura's subsequent psychiatric history, her opinion contrasts starkly with that of Drs Majeed and Simpson. A substantial source of information on which Dr Joseph has relied is Mr Wharekura's self-reported account, many years after the event. That account is largely inconsistent with contemporaneous evidence.
Together, these factors weigh very heavily against an extension.
The application to adduce fresh evidence is granted.
The application for an extension of time to appeal is declined.
John Wharekura stabbed Tanya Burr to death in September 2002. In May 2003, he pleaded guilty to her murder. In August 2003, he was sentenced to life imprisonment with a minimum period of imprisonment of 14 years. In the leadup to his guilty plea, Mr Wharekura was assessed by two different psychiatrists, Dr Majeed and Dr Simpson, both of whom found that Mr Wharekura was fit to plead and stand trial and that he did not qualify for the defence of insanity. Dr Simpson concluded, for instance, that there was no evidence that Mr Wharekura was experiencing psychotic symptoms at the material time.
In 2008, about six years after the index offence, Mr Wharekura first came to the attention of prison mental health services. In October 2008, he was assessed by a psychiatrist and found to be acutely psychotic. By August 2009, Mr Wharekura had an established diagnosis of paranoid schizophrenia and his psychotic symptoms included auditory hallucinations.
Mr Wharekura reported that his psychotic symptoms resolved in early 2015. He appeared before the Parole Board in October 2016. The Board recorded that, in its view, Mr Wharekura killed Ms Burr because of his untreated psychotic illness at the material time. In September 2018, Mr Wharekura was released on parole. Towards the end of 2019, there were once again concerns about his mental health, and he was recalled to prison in December 2019.
In August 2021, following a serious incident in prison, Mr Wharekura was charged with wounding with intent to cause grievous bodily harm. In September 2022, he was found not guilty of that charge by reason of insanity.
Mr Wharekura seeks an extension of time - of more than 20 years - to appeal against his murder conviction. He says that subsequent psychiatric investigations show that he was likely insane when he killed Ms Burr. To support his application for an extension of time, Mr Wharekura wishes to adduce fresh evidence, being a psychiatric report prepared by Dr Joseph in November 2024.
Should the application to adduce fresh evidence be granted?
Held: Yes.
Dr Joseph's report and opinion largely rely on events that have occurred since Mr Wharekura pleaded guilty. The evidence is fresh in that sense. It is also credible, given Dr Joseph's qualifications and experience. Although we have reservations about the cogency of Dr Joseph's opinion, we prefer to deal with those when addressing the merits of the proposed appeal. The fresh evidence requirements of credibility, freshness and cogency are therefore satisfied.
Should the application for an extension of time to appeal be granted?
Held: No.
The touchstone for whether to grant an extension of time is the interests of justice in the particular case. The interests of justice may call for balancing the wider interest of society in the finality of decisions against the interest of the applicant in having their conviction reviewed. A long delay is a major factor weighing against leave being granted and, if unexplained, will usually be decisive. Mr Wharekura's delay in bringing an appeal is very long: more than 20 years. We do not accept that Mr Wharekura's account provides an adequate explanation for this very long delay. Even if we accept his account that he had been hearing voices since he was a young child and that those voices commanded him to kill Ms Burr and not to speak about them to anyone else, a significant part of the more than 20-year delay remains unexplained. By 2016, Mr Wharekura's psychotic symptoms had (temporarily) resolved. His psychiatrist was reporting a substantial improvement in his mental state, and the Parole Board even said that, in its view, his crime occurred because of his untreated psychotic illness. Concerns about Mr Wharekura's mental health were not raised again until late 2019, by which time he had spent more than a year in the community on parole. In the intervening period, there were clear signals to Mr Wharekura that an insanity defence should be explored. Mr Wharekura does not explain why he did not advance an appeal during this period.
Mr Wharekura pleaded guilty. It is only in exceptional circumstances that a court will allow an appeal against conviction entered as a result of a guilty plea. Not only do Mr Wharekura's circumstances not fit easily within the generally recognised categories of exceptional circumstances, but also his guilty plea was unsurprising in all the circumstances. The availability of an insanity defence was considered thoroughly in the lead-up to his guilty plea, and his case is very different from those where trial counsel did not examine the possibility of an insanity defence.
The underlying merits of Mr Wharekura's insanity defence appear weak. The contemporary evidence is inconsistent with Mr Wharekura being insane at the time of the killing. Police obtained statements from people who interacted with Mr Wharekura on the evening of Ms Burr's death, none of whom described him as exhibiting any unusual behaviour. When speaking to a police detective just two days after the killing, Mr Wharekura presented as calm and relaxed and gave a detailed and coherent account of his actions. The transcript of that interview does not give any hint that, as is now claimed, Mr Wharekura was answering questions at the direction of voices in his head. The contemporaneous psychiatric evidence presents a formidable hurdle for Mr Wharekura to overcome on his proposed appeal. While we acknowledge that Dr Joseph has prepared a detailed report and draws on Mr Wharekura's subsequent psychiatric history, her opinion contrasts starkly with that of Drs Majeed and Simpson. A substantial source of information on which Dr Joseph has relied is Mr Wharekura's self-reported account, many years after the event. That account is largely inconsistent with contemporaneous evidence.
Together, these factors weigh very heavily against an extension.