Hayes v The King
[2024] NZHC 568
•15 March 2024
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CRI-2023-409-211
[2024] NZHC 568
BETWEEN TERRENCE JOHN HAYES
Appellant
AND
THE KING
Respondent
Hearing: 7 March 2024 Appearances:
C C Gullidge for Appellant W J S Mohammed for Crown
Judgment:
15 March 2024
JUDGMENT OF EATON J
(appeal against special patient order)
This judgment was delivered by me on …….. at ……… pursuant to Rule 11.5 of the High Court Rules
Registrar/Deputy Registrar Date:
HAYES v R [2024] NZHC 568 [15 March 2024]
Introduction
[1] On 23 March 2023, Terrence Hayes was found unfit to stand trial on eight charges.1 Those charges were:
(a)intimidation x2;2
(b)possession of an offensive weapon x2;3
(c)wilful damage;4
(d)unlawfully in an enclosed yard;5
(e)resisting a police officer;6 and
(f)assault with a weapon.7
[2] On 4 August 2023, Judge Savage made a finding under s 10 of the Criminal Procedure (Mentally Impaired Persons) Act 2003 (CPMIP) that Mr Hayes was involved in the alleged offending. At a disposition hearing on 8 September 2023, Judge Savage imposed a special patient order (SPO) pursuant to s 24(2)(a) of the CPMIP.8
[3] Mr Hayes appeals that decision. He contends the appropriate disposition was an inpatient compulsory treatment order (CTO) pursuant to s 25(1)(a) of the CPMIP and s 30 of the Mental Health (Compulsory Assessment and Treatment) Act 1992 (MHCAT).
1 Criminal Procedure (Mentally Impaired) Persons Act 2003, ss 7 and 8A [CPMIP].
2 Summary Offences Act 1981, s 21(1)(e); maximum penalty three months’ imprisonment or a
$2,000 fine.
3 Crimes Act 1961, s 202A(4)(a); maximum penalty three years’ imprisonment.
4 Summary Offences Act, s 11(1)(a); maximum penalty three months’ imprisonment or a $2,000 fine.
5 Section 29(1)(b); maximum penalty three months’ imprisonment or a $2,000 fine.
6 Section 23(a); maximum penalty three months’ imprisonment or a $2,000 fine.
7 Crimes Act, s 202C(1)(a); maximum penalty five years’ imprisonment.
8 R v Hayes [2023] NZDC 20320.
Factual background
[4] Mr Hayes faces two sets of charges, the first arising on 23 June 2022 and the second on 25 June 2022.
Possession of an offensive weapon and intimidation
[5] On 23 June 2022, Mr Hayes was in Kaiapoi. He was carrying a crowbar and knife and approached an acquaintance sitting on a bench. Mr Hayes began yelling at the acquaintance and raised the crowbar accusing him of going into and messing up his house. Mr Hayes swung the crowbar at the acquaintance, who backed away, and caught the bottom of his jacket, ripping it.
Remaining charges
[6] On the evening of 25 June 2022, a couple and their small child were parked in their car in Kaiapoi near a bus stop. Mr Hayes approached the vehicle from the bus stop and yelling and waving a crowbar at them. The family drove off and phoned police.
[7] On arrival, the police confronted Mr Hayes who by that time was holding a hunting style knife as well as the crowbar. Mr Hayes refused to comply with requests to drop the weapons, instead threatening the police with them. Police repeatedly advised Mr Hayes to put the weapons down and that he was under arrest. Mr Hayes shattered the windshield of the police car. He yelled and verbally abused police. He refused arrest. He was tasered three times with little effect, and pepper sprayed. During this, Mr Hayes was walking away from police. He entered a property without lawful authority to do so. At this point he was carrying the crowbar and a wooden block. He threatened police staff standing at the gateway entrance of the property. Police tasered Mr Hayes again but this was unsuccessful. Mr Hayes was incapacitated after he was shot by Police. He suffered very serious injuries.
District Court decision
[8] Judge Savage observed, based on a report by consultant psychiatrist, Dr James Foulds, that Mr Hayes was seriously unwell. This observation was informed
by Mr Hayes’ longstanding psychotic disorder, his background of severe substance addictions, and that he was likely to meet the criteria for an antisocial personality disorder. As well, the report raised concerns regarding Mr Hayes’ cognitive functioning. The Judge noted Mr Hayes does not have an intellectual disability.
[9] The Judge said that at the heart of the disposition decision was a risk assessment. The Judge observed Dr Foulds had detailed the criteria relevant to the risk assessment and recommended Mr Hayes be treated under s 25(1)(a) of the CPMIP and made subject to a CTO under s 30 of the MHCAT. The Judge noted Dr Foulds had acknowledged it was “finely balanced” whether Mr Hayes should be subject to a CTO or to an SPO under s 24(2)(a) of the CPMIP.
[10] The Judge acknowledged the SPO would be significantly more invasive because it would require a longer stay at Hillmorton hospital, but determined an SPO was the “preferable” option because, if Mr Hayes was subject to a CTO, he would require significant follow-up. The Judge expressed concern Mr Hayes had poor insight into his mental illness and offending, had ongoing active symptoms of mental illness and had only a partial response to past treatment. The Judge stressed Mr Hayes’ history of supervision failure. There was a very real risk Mr Hayes would be non-compliant with a treatment programme giving rise to an unacceptable escalation in the risk Mr Hayes would pose both to himself and the community.
[11] The Judge was concerned that a CTO would place a “heavy responsibility” on Mr Hayes’ clinicians and daughter. The Judge said he had seen clinicians fail to meet those responsibilities too often in the past. An order was made that Mr Hayes be treated as a special patient under s 24(1)(a).
Submissions
Appellant submissions
[12]Mr Gullidge, for Mr Hayes, submitted the Judge erred by:
(a)failing to apply the statutory test in finding an SPO was preferable and not whether it was necessary;
(b)failing to consider all the circumstances of the case, particularly the lower-level seriousness of the charges and that Dr Foulds had failed to take into account that the charges had been reduced in seriousness; and
(c)having regard to irrelevant factors, particularly that a CTO would impose a heavy responsibility on Mr Hayes’ daughter and on clinicians.
[13] To the first ground, Mr Gullidge submitted the Judge applied the wrong test in finding the SPO was “preferable” to a CTO. He points to the statutory threshold. An SPO can only be made if an order is necessary. He submits the Judge failed to consider that the criteria for a CTO under the MHCAT is “mental disorder”, relevantly defined as an abnormal state of mind (whether of a continuous or an intermittent nature), characterised by delusions, or by disorders of mood or perception or volition or cognition, of such a degree that it poses a serious danger to the health and safety of others.9 Mr Gullidge further submitted the Judge wrongly considered the “heavy responsibility” that would fall on clinicians. He submitted that responsibility is mandated by statute. Mr Gullidge highlighted that Dr Foulds recommended a CTO provided there was assertive community follow-up after Mr Hayes’ release from hospital. Mr Gullidge noted the option of extending the minimum six-month period Mr Hayes would have to receive treatment for under a CTO for a further six months and an additional indefinite extension (with regular reviews) following that.
[14] In support of the second ground, Mr Gullidge submitted the Judge erred in not acknowledging the charges are at the lower end of the spectrum of serious violent offences. Mr Gullidge submitted an assessment of the seriousness of the charges is crucial to the risk assessment in determining whether an SPO is necessary. He compares Mr Hayes’ offending to that in Tuira v R, which involved aggravated burglary, injuring with intent to injure, indecent assault, and assault with a weapon.10 In failing to consider the precise charges and facts proved, Mr Gullidge submitted the Judge failed to consider all relevant circumstances.
9 Mental Health (Compulsory Assessment and Treatment) Act 1992, s 2, definition of “mental disorder” and s 27 [MHCAT].
10 Tuira v R [2022] NZCA 394.
[15] To the third ground, Mr Gullidge submitted the Judge’s consideration that a heavy responsibility would fall on Mr Hayes’ daughter is neither proven nor relevant. He submitted the circumstances of the case to be considered under s 24(1)(a) of the CPMIP is restricted to the relevant circumstances. He contends that to take into account the responsibility of family members of mentally unwell people in considering whether to make an SPO would artificially lower the high threshold of the necessity test. Mr Gullidge submitted that the responsibilities of a clinician in relation to a CTO is not a relevant consideration.
Respondent submissions
[16] Mr Mohammed, for the Crown,11 submitted that, regardless of the language used by the Judge, an SPO was necessary due to Mr Haye’s risk profile. Mr Mohammed submitted this reflects Mr Hayes’ diagnostic profile, including a longstanding psychotic disorder and severe substance addictions. Counsel highlighted that Dr Foulds considered the most concerning risk scenario would be where Mr Hayes disengaged with mental health follow up, stopped medication, and resumed using substances after release.
[17] Mr Mohammed submitted the level of the charges Mr Hayes faced is a factor relevant to the disposition but is not determinative. Rather, the Judge was required to take a holistic approach including the surrounding facts and conduct of Mr Hayes. Mr Mohammed submitted Mr Hayes’ offending placed both the public and the police in significant danger. This, alongside Mr Hayes’ extensive criminal history, mental disorders and risk to the public without proper management, all speaks to the risk assessment under s 24 of the CPMIP. Further, Mr Mohammed submitted the degree of responsibility that would fall on Mr Hayes’ support persons is a relevant factor in the necessity test, because this goes to the ability of those around the appellant to manage his immediate and future needs.
[18] Mr Mohammed submitted the Judge was correct to find an SPO, with its greater restrictions than a CTO, was appropriate in the circumstances.
11 Mr Mohammed did not appear for the Crown in the District Court.
Legal principles on appeal
[19] Section 29 of the CPMIP confers the same right of appeal against an order under s 24 as if the order were a sentence. Section 29 does not specify the grounds upon which the order may be challenged. Adams on Criminal Law noted under comparable Canadian legislation the decision as to disposition may be challenged on the following grounds:12
(a)the decision was unreasonable or cannot be supported by the evidence;
(b)the decision was based on a wrong decision on a question of law (unless no substantial wrong or miscarriage of justice has occurred); or
(c)there was a miscarriage of justice.
[20] The Court of Appeal in Tuira v R considered the Canadian approach in ruling it was satisfied the Judge had made an error of law justifying a reconsideration of the order made, but considered it was unnecessary to go further and consider additional grounds on which a s 24 order may be challenged.13
[21] In respect of an appeal against an order under s 24, the provisions of pt 6 of the Criminal Procedure Act 2011 apply so far as they are applicable and with any necessary modifications.14 An appeal against sentence will be successful only if the appellate Court is satisfied there has been an error in the imposition of the sentence and that a different sentence should be imposed.15
12 Adams on Criminal Law — Criminal Procedure (online ed, Thomson Reuters) at [CM29.01].
13 Tuira v R, above n 10, at [52].
14 CPMIP, s 29(2).
15 Criminal Procedure Act 2011, s 250(2) and (3).
Legislative scheme
[22] Once the court has found a defendant is unfit to stand trial16 and is satisfied, on the balance of probabilities, the defendant was involved in the offence with which they are charged,17 it must make an order under ss 24 or 25.18
[23]Section 24 relevantly provides:
24Detention of defendant found unfit to stand trial or insane as special patient or special care recipient
(1)When the court has sufficient information on the condition of a defendant found unfit to stand trial or acquitted on account of his or her insanity, the court must—
(a)consider all the circumstances of the case; and
(b)consider the evidence of 1 or more health assessors as to whether the detention of the defendant in accordance with one of the orders specified in subsection (2) is necessary; and
(c)make one of the orders referred to in paragraph (b) if it is satisfied that the making of the order is necessary in the interests of the public or any person or class of person who may be affected by the court’s decision.
(2)The orders referred to in subsection (1) are that the defendant be detained—
(a)in a hospital as a special patient under the Mental Health
(Compulsory Assessment and Treatment) Act 1992; or
…
(3)Before the court makes an order specified in subsection (2)(a), the court must have received evidence, under subsection (1)(b), about the defendant from at least 1 health assessor who is a psychiatrist.
[24]The Court of Appeal in Tuira v R said in relation to this provision:19
[16] Special patient status under s 24 signifies a category of persons whose behaviour warrants extraordinary precautions being taken in order to protect the public, while ensuring that optimal care and treatment is given to the person to assist their eventual reintegration into the community.20 The
16 CPMIP, ss 7 and 8A.
17 Section 10.
18 Sections 13(4) and 23(1).
19 Tuira v R, above n 10.
20 Warren Brookbanks and Jeremy Skipworth “Reclassification and leave of special patients unfit to stand trial” [2015] NZLJ 215 at 215.
threshold for making an order under s 24(2) that a defendant be detained “is that detention must be “necessary” in the interests of the public or those who may be affected by the Court’s decision”.21 This threshold is recognised as high — in M (CA819/2011) v R, this Court described “necessary” as falling between expedient or desirable on the one hand and essential on the other.22
[25] In assessing whether an order under s 24(2) is necessary in the interests of the public, the court must consider the need to protect the public from further offending by the offender as well as “ensure the offender is managed and treated in a manner best calculated to achieve the ultimate goals of rehabilitation and reintegration into the community”.23 This judicial assessment is wider than the medical assessments made by health assessors.24 That an order under s 24(2) may be thought to provide the optimum outcome or be more convenient for health authorities to manage and treat the defendant is not sufficient to meet the necessity test.25
[26] Where the court does not consider it necessary to make an order pursuant to s 24(2), it must deal with the defendant in one of the ways provided in s 25. Section 25 relevantly provides:
25Alternative decisions in respect of defendant unfit to stand trial or insane
(1)If, after considering the matters specified in section 24(1)(a) and
(b) concerning a defendant found unfit to stand trial or acquitted on account of his or her insanity, the court is not satisfied that an order under section 24(2) is necessary, the court must deal with the defendant—
(a)by ordering that the defendant be treated as a patient under the Mental Health (Compulsory Assessment and Treatment)
Act 1992; or
…
(2)Before the court makes an order under subsection (1)(a), the court must be satisfied on the evidence of 1 or more health assessors (at least 1 of whom must be a psychiatrist) that the defendant is mentally disordered.
…
21 R v Tui [2020] NZHC 2074 at [6].
22 M (CA819/2011) v R [2012] NZCA 142, [2012] BCL 211 at [17], citing Environmental Defence Society Inc v Mangonui County Council [1989] 3 NZLR 257 (CA) at 260.
23 M (CA819/11) v R, above n 22, at [7].
24 At [7].
25 At [18].
(4)In the exercise of its powers under subsection (1), the court may take into account any undertaking given by, or on behalf of, the defendant that the defendant will undergo or continue to undergo a particular programme or course of treatment.
[27] An order under s 25(1)(a) is to be regarded as a CTO for the purposes of the MHCAT and will take effect either as a community treatment order or as an inpatient order.26 Under the MHCAT a CTO can only be made if the person is “mentally disordered”. The term “mental disorder” is defined as:27
mental disorder, in relation to any person, means an abnormal state of mind (whether of a continuous or an intermittent nature), characterised by delusions, or by disorders of mood or perception or volition or cognition, of such a degree that it—
(a)poses a serious danger to the health or safety of that person or of others; or
(b)seriously diminishes the capacity of that person to take care of himself or herself;—
and mentally disordered, in relation to any such person, has a corresponding meaning
[28] When an order is made under s 25 in respect of a defendant who has been found unfit to stand trial, the court may order the proceedings in which the finding was made are stayed and, while the stay is in force, the defendant cannot be charged again with the same offences that were the subject of the proceeding.28
[29] While s 25 provides less restrictive alternative pathways, an inpatient order under s 25(1)(a) of the CPMIP and s 30 of the MHCAT will have a similar effect to an SPO under s 24(2)(a) because both require the continued detention of the patient in a hospital “for the purposes of treatment, and shall require the patient to accept that treatment”,29 and a special patient “shall be given such care, treatment, training, and occupation as the patient would be given” if they were subject to a CTO.30 The differences between the orders under s 24(2)(a) and s 25(1)(a) is how and when the detention can end.
26 CPMIP, s 26(1); and MHCAT, ss 28-30.
27 MHCAT, s 2.
28 CPMIP, s 27.
29 MHCAT, s 30(1).
30 Section 44.
[30] Section 30 of the CPMIP provides for the duration of orders made under s 24. Section 30 relevantly provides:
30Duration of detention as special patient or special care recipient where person unfit to stand trial
(1)The maximum period for which a defendant who has been found unfit to stand trial can be detained under section 24 as a special patient or a special care recipient is—
…
(b) if paragraph (a) does not apply, a period from the date of the order under section 24 equal to half the maximum term of imprisonment to which the defendant would have been liable if he or she had been convicted of the offence charged.
(2)If the defendant was charged with more than 1 offence, the relevant offence for the purposes of subsection (1)(b) is the offence punishable by the longest term of imprisonment.
(3)An order under section 24 in respect of a defendant who has been found unfit to stand trial continues in force during the maximum period specified in subsection (1) until—
(a)the defendant is brought before a court in accordance with a direction given under section 31; or
(b)a direction is given, under section 31, that the defendant be held as a patient or as a care recipient.
…
(5) An order under section 24 is to be treated as cancelled if every charge brought against the defendant in the proceedings in which the order was made is withdrawn or dismissed.
[31] The defendant will be subject to an SPO under s 24(2)(a) for the maximum period specified in s 30, unless one of the directions under s 31 is made. Section 31 relevantly provides:
31Change of status from special patient to patient or special care recipient to care recipient where person unfit to stand trial
(1)This section applies to a defendant who has been found unfit to stand trial and who is detained as a special patient or as a special care recipient in accordance with an order under section
24 (the defendant).
(2)If, before or on the expiry of the relevant maximum period specified in section 30, a certificate is given under the Mental Health
(Compulsory Assessment and Treatment) Act 1992 … to the effect
that the defendant is no longer unfit to stand trial, the Attorney- General must either—
(a)direct that the defendant be brought before the appropriate court; or
(b)direct that the defendant be held as a patient or, as the case requires, as a care recipient.
(3)If, at any time before the expiry of the relevant maximum period specified in section 30, a certificate is given under the Mental Health
(Compulsory Assessment and Treatment) Act 1992 … to the effect that, although the defendant is still unfit to stand trial, the continued detention of the defendant under section 24 is no longer necessary to safeguard the interests specified in subsection (3A), the Minister of Health, acting with the concurrence of the Attorney-General, must—
(a)consider whether, in the Minister’s opinion, the continued detention of the defendant under that section is no longer necessary to safeguard those interests; and
(b)direct that the defendant be held as a patient or, as the case requires, as a care recipient if, in the Minister’s opinion, that detention is no longer necessary to safeguard those interests.
(3A) The interests referred to in subsection (3) are—
(a)the defendant’s own interests; and
(b)the safety of the public or the safety of a person or class of person.
(3B)In reaching a decision under subsection (3)(a), the Minister must have regard to any report from the Director of Mental Health made under section 33A.
(4)The Attorney-General must direct that the defendant be held as a patient or, as the case requires, as a care recipient if—
(a)the defendant is still detained as a special patient or as a special care recipient when the maximum period specified in section 30 expires; and
(b)no direction under subsection (2) or subsection (3) has been given in respect of the defendant; and
(c)no certificate of the kind referred to in subsection (2) has been given in respect of the defendant.
(5)A direction under this section—
(a)that the defendant be held as a patient is to be regarded as a compulsory treatment order for the purposes of the Mental
Health (Compulsory Assessment and Treatment) Act 1992, and the provisions of that Act apply accordingly:
…
(6)The powers and duties conferred and imposed on the Attorney- General by this section are not capable of being exercised or performed by the Solicitor-General.
[32] A CTO expires after six months,31 but can be extended for a further six months upon application by the responsible clinician.32 If a CTO has been extended and the responsible clinician is satisfied the patient is still not fit to be released from compulsory status, application may be made to the court for a further 12-month extension.33
[33] When directed to be held as a patient (either after one of the directions in s 31 of the MHCAT is made following an order under s 24(2)(a) of the CPMIP or following an order under s 25(1)(a) of the CPMIP), the defendant becomes subject to the civil regime of MHCAT rather than the criminal justice system. As noted at [27] above, a CTO will either be in the form of a community treatment order or an inpatient order.34 An inpatient CTO under MHCAT continues until the responsible clinician considers the patient can be treated adequately as an outpatient and direct the patient be discharged from hospital and to attend their place of residence for the purposes of treatment.35 From thereon, the order is regarded as a community treatment order.36
Discussion
Out of time
[34] This appeal was filed out of time due to the appellant’s counsel and responsible clinician being unavailable after the decision on 8 September 2023. The Crown do not oppose leave being granted to appeal out of time except on the merits.
31 MHCAT, s 33.
32 Section 34.
33 Section 34A.
34 Section 28.
35 Section 30.
36 Section 30(2).
A single health assessor’s report
[35] Section 24 of the CPMIP requires the court to consider the evidence of “1 or more health assessors”37 and from “at least 1 who is a psychiatrist”38 before making an SPO. Only one health assessor’s report was directed to report on Mr Hayes. Armed with Dr Foulds’ report, the Crown submitted an SPO was the appropriate outcome, whereas defence counsel contended for an inpatient CTO. The Judge was faced with a “finely balanced” report that favoured the less restrictive outcome and a disagreement between the parties.
[36] At the conclusion of his report, Dr Foulds proposed that, in light of his view, the ultimate issue was “somewhat finely balanced”, he would be willing to give oral evidence. Dr Foulds was not called for cross-examination by the prosecution. The Judge did not take up Dr Foulds’ offer to give evidence. It was not suggested that a second report should be sought.
[37] Whilst I accept there will be cases where the report of a single health assessor will adequately address relevant matters such that the Court is in a position to assess whether an order under s 24 was necessary, that is less likely to be the case when the charges are not of the most serious nature, where the single health assessor considers the issue to be finely balanced, and the prosecution and defence are not in agreement as to the appropriate disposition.
[38] In those circumstances, the better course would have been for a second health assessor’s report to have been called for, and/or Dr Foulds required to give further evidence, in order to ensure the Court was fully informed.
[39] During the course of argument on appeal, I raised with the counsel the possibility of the appeal being allowed and the case then referred back to the District Court for further evidence to be offered, either by a second health assessor or with evidence being given by Dr Foulds. I do not consider remission to be an option having regard to s 29 of the CPMIP.39
37 CPMIP, s 24(1)(b).
38 Section 24(3).
39 That section providing the appellate court may dismiss the appeal, vary the order, or cancel the
[40] I have considered whether I might direct that a second health assessor’s report be obtained with a view to disposition being determined in this court. I am, however, satisfied that the court has sufficient information to make a disposition determination. I am also conscious that it has been 21 months since Mr Hayes’ arrest. Section 23 of the CPMIP expressly requires the inquiries to determine the most suitable method of dealing with a person found unfit to face trial to be made “as quickly as practicable”.40 Mr Hayes, his family and his treating clinicians would, in my view, benefit from a final decision as regards deposition.
Was a s 24(2)(a) order necessary?
[41] When I have regard to all the circumstances of the case, and accepting the threshold for making an SPO is high, I am satisfied an alternative order, an inpatient CTO, should have been made.
[42] Mr Hayes has been found to be unfit to face trial due to mental illness. Since his arrest he has been detained either in custody, having been refused bail, or pursuant to orders made under CPMIP. That he has been deemed unfit to face trial but has been detained creates tension.
[43] This tension was recognised by the Court of Appeal in R v Elliot where the Court considered an order pursuant to s 39J of the Criminal Justice Act 1954.41 In Elliot, the Court cited Woodhouse J in Mitchell v Allen:42
Obviously it is a fundamental importance that whenever the Mental Health Act is invoked to detain a man against his will, a high degree of care must be exercised to see that the facts of the case are within the strict boundaries which the Act defines.
order and substitute it with another under ss 24, 25 or 27.
40 CPMIP, s 23(4).
41 R v Elliot [1981] 1 NZLR 295. Section 39J of the Criminal Justice Act 1954 (since repealed) relevantly provided that when a person is convicted of any offence the Court, on being satisfied by the production of a certificate by two medical practitioners that he is mentally disordered, and that his mental condition requires that he should be detained in a hospital either in his own interest or for the safety of the public, may instead of passing sentence on him make an order that he be detained in a hospital as a committed patient.
42 At 300, citing Mitchell v Allen [1969] NZLR 110 at 113.
[44] In R v Barnes, the Court of Appeal considered and applied the principle recognised in Elliot in considering an order for detention under s 24 of CPMIP. 43 A sentencing court must apply the strict boundaries as defined by the empowering legislation.
[45] The Judge found an SPO was the “preferable” option. As a matter of law, the Judge had to be satisfied an order under s 24(2)(a) was necessary in the interests of the public or those who may be affected by the Court’s decision, before making the order. It is critical that in considering disposition, the Court keep firmly in mind the “necessity” test. That test requires the Court to consider the interests and, particularly, the protection of the public from any further offending by Mr Hayes.
[46] While the Judge did, at a later point refer to an SPO as necessary, I am left in doubt as to whether the strict legal threshold was applied.
[47] Mr Mohammed concedes the Judge applied the wrong test, however, I agree that it does not automatically follow that the ultimate decision was wrong. I accept it is appropriate I consider the question of disposition afresh. That requires a review of “all the circumstances of the case”.44
[48] I consider a useful starting point in considering the circumstances of the case is Mr Hayes’ offending. Mr Hayes approached members of the public both random and known to him, armed with weapons and acting in a threatening manner. He damaged property and entered unlawfully onto residential property. Mr Hayes resisted arrest and refused to comply with police requests to put his weapons down. He placed members of the public and police staff at risk, as well as his own safety — he was tasered by police four times, pepper sprayed, and ultimately suffered near fatal injuries after being shot multiple times by police. No-one other than Mr Hayes was injured but the potential for harm to others was real. The offending, no matter what charges were ultimately preferred, was serious.
43 R v Barnes CA 69/05, 16 June 2005.
44 CPMIP, s 24(1)(a)
[49] Mr Gullidge raised the issue of disproportionality between the two-and-a-half-year period Mr Hayes would be detained for under an SPO (unless one of the s 31 exceptions arose) and any sentence he might have faced on conviction. The Court in Barnes referred to the need for reasonable proportionality between the offending and the severe curtailment of liberty inherent in an order for detention as recognised in Elliot.45
[50] I accept that the seriousness and nature of the charges, and the question of proportionality, should be appropriately considered in the context of a disposition determination. I share the view expressed by Dr Foulds that an SPO would typically be imposed for more serious offending. I accept that under an SPO Mr Hayes would be detained longer than he would be if he were found fit to plead, convicted and sentenced. But those maters cannot be determinative.46 The focus when considering orders under either s 24 or s 25 is the mental health of the offender and the associated risk to the public. Criminal culpability or justification are immaterial to a finding under s 10.47 Special care and special patient orders under s 24 are not punishments.48
[51] A further circumstance relevant to the risk assessment is Mr Hayes’ criminal history. It is extensive. He has convictions for aggravated robbery, burglary, cannabis offending, and shoplifting. He has been subject to multiple sentences of imprisonment. I acknowledge that his most recent conviction dates back to 2015, but nonetheless, his history shows a consistent pattern throughout his life of criminal offending.
[52] I have particular regard to the report of Dr Foulds. On 15 August 2023, Dr Foulds completed a Health Assessor report under s 23 of the CPMIP to assist the
45 R v Barnes, above n 43, at [13].
46 To this point, see Law Commission Mental Impairment Decision-Making and the Insanity Defence (NZLC R120, 2010) at 10.22 and 10.24. The report states the default duration period under s 30(1) is intended to reflect the inappropriateness for the patient to remain indefinitely in jeopardy of prosecution. The default duration period therefore is intended to act as a safeguard in this respect and is not connected with punishment, with the link to the maximum penalty available for the patient’s alleged lead offence being the least arbitrary way of doing this. For full discussion, see 10.21-10.26.
47 R v Tongia [2019] NZHC 3278 at [18]; R v Te Moni [2009] NZCA 560 at [68]; and R v RTPH
[2014] NZHC 1423 at [5]-[7].
48 R v MT [2020] NZHC 1490 at [123].
court to determine the most suitable method of dealing with Mr Hayes under s 24 or s 25 of the CPMIP.
[53] The report refers to Mr Hayes facing charges of intentional damage, threatening to kill, and two charges of assault with a weapon. Mr Hayes was originally facing those charges, however, prior to the s 10 of the CPMIP involvement hearing, the intentional damage had been reduced to a charge of wilful damage, the threatening to kill charge was dropped and Mr Hayes faced a single charge of assault with a weapon. It is regrettable this issue was not raised with Dr Foulds directly. It highlights the “high degree of care” referred to in Mitchell.49 Because I have reached the view the SPO should be set aside it is not necessary that I resolve whether Dr Foulds’ opinion might have shifted if he was aware of the final charges faced by Mr Hayes.
[54] Dr Foulds had met with Mr Hayes on 12 August 2023. He described Mr Hayes as more co-operative in this interview than in the past. Dr Foulds had the advantage of seeing Mr Hayes closer in time to the offending and shortly before the disposition hearing. He described Mr Hayes as friendly and compliant. Dr Foulds recorded that Mr Hayes’ closest family relationship is with his young adult daughter, his parents having both passed away by 2003.
[55] Mr Hayes’ psychiatric history was canvassed. Dr Foulds described Mr Hayes as having had delusional ideas for at least eight years, a longstanding addiction to opioids and sedative drugs, and as having had an alcohol use disorder in the past. Mr Hayes has also been a regular cannabis user. Dr Foulds said Mr Hayes’ delusional ideas focus on the persecution of one acquaintance in particular50, as well as the police. He said Mr Hayes has further “grandiose and bizarre delusions”, involving [redacted].
[56] Dr Foulds confirmed that since the present offending, Mr Hayes has received inpatient care. Mr Hayes has become more settled over this period and is presently managed in an open rehabilitation ward. His level of distress and preoccupation with his delusions has reduced substantially. Dr Foulds observed Mr Hayes does not accept he has a psychotic disorder and would not on his own accord take antipsychotic
49 Mitchell v Allen, above n 42, at 113.
50 That person was the victim named in the charge alleging intimidation.
medication. Dr Foulds considered Mr Hayes has no insight into the link between his mental illness and the offending, and instead gave a delusional explanation.
[57] Under the heading “diagnostic issues”, Dr Foulds opined that Mr Hayes has a longstanding psychotic disorder, a background of severe substance addictions, a likely antisocial personality disorder and appears to have an acquired neurocognitive disorder (probably attributed to a past head injury and substance abuse).
[58]Dr Foulds highlighted the following factors relevant to future risk:
(a)poor insight into both mental illness and offending;
(b)continuing active symptoms of mental illness;
(c)cognitive and affective instability; and
(d)response to treatment has been no more than partial.
[59]He identified a number of challenges in relation to risk management:
(a)lack of clarity as to whether Mr Hayes will accept support from community services upon release;
(b)problems with Mr Hayes’ plan to return to his own home upon discharge;
(c)lack of community support;
(d)a high likelihood Mr Hayes will be reluctant to accept mental health treatment and other supports after release; and
(e)a high potential for stress in the community stemming from poor cognitive functioning and his ability to care for himself.
[60] Dr Foulds considered the “most concerning at risk scenario after release” would be where Mr Hayes disengages with mental health follow up, stops medication, and resumes using substances, leading to the likely risk of harm to others or himself.
[61] Dr Foulds observed that Mr Hayes is presently permitted escorted leave in the community. He says that leave would temporarily cease if Mr Hayes were subject to
an SPO. He observes that an SPO is typically made in cases involving more serious charges but acknowledged the fact scenario of Mr Hayes’ offending gave the police “urgent fears for Public safety”.
[62] Ultimately, and notwithstanding the challenges Mr Hayes presents, Dr Foulds concluded an SPO was not necessary. He accepted the disposition decision was “finely balanced”.
[63] The evidence of Dr Foulds must be considered alongside “all the circumstances of the case”,51 and the judicial assessment required under s 24 of the CPMIP is broader than the medical assessment carried out by health assessors.52 However, heavy weight must undoubtedly be put on the assessment and recommendation of the health assessor/s. The basis for an order under s 24 is that the offender has been found unfit to stand trial, that is, a mental health assessment.
[64] Mr Hayes’ present charges and criminal history, paired with the issues identified in Dr Foulds’ report, demonstrates there is a real risk of further offending in the future that would likely place others at risk. It is not disputed hospital detention is necessary and Mr Hayes is required to be kept out of the community until the risks he presents can be adequately managed.
[65] The CPMIP provides two alternative pathways to deal with an offender in these circumstances. The test is two-stage: (1) whether an order under s 24 is necessary in the interests of the public or any persons who may be affected by the court’s decision; and (2) if not, an order under s 25 must be made.
[66] Although Dr Foulds stated the decision between an SPO and an inpatient CTO was “finely balanced”, he said:
… on balance, I do not believe an Order under Section 24(2)(a) is necessary in the interests of the public, but ultimately this is for the Court to decide.
4. An Order under Section 25(1)(a) would result in the defendant being made subject to a Compulsory Treatment Order under Section 30 of the [MHCAT]. It is respectfully submitted that the defendant can be managed effectively
51 CPMIP, s 24(1).
52 M (CA819/11) v R, above n 22, at [7].
under such an Order, provided there is suitably assertive community follow up after release from hospital.
(emphasis added)
[67] The Judge observed the special patient option would be significantly more invasive and would require Mr Hayes to be detained for a longer period. He identified what he considered to be shortcomings in a s 25 order. It was those findings that led the Judge to impose an SPO. The Judge was particularly concerned that a CTO would require significant follow-up that itself would be fraught with risks because of Mr Hayes’ poor insight, ongoing symptoms of mental illness, and past responses to treatments, leading to what the Judge assessed to be a very high risk of him being non-compliant with any treatment programmes. The Judge was concerned a CTO would place a heavy responsibility on Mr Hayes’ daughter and his clinicians. The Judge was not confident the clinicians would discharge their responsibilities. In my view, those concerns do not sit comfortably with Dr Foulds’ opinion that a CTO could effectively manage Mr Hayes provided there was assertive community follow-up.
[68] As Mr Gullidge submitted, pursuant to s 33 of the MHCAT, Mr Hayes would be subject to compulsory treatment for a period of six months from the making of the order. Pursuant to s 59(1), for the first month of the CTO, Mr Hayes would be required to accept treatment. Pursuant to s 59(2)(b), from the second month onwards, Mr Hayes would be required to accept treatment if that treatment was considered to be in his best interests by an independent psychiatrist who is not his responsible clinician. As discussed at [32], s 34 permits the extension of the CTO for a further period of six months and s 34A permits another extension for a period of 12 months.
[69] It follows that while the Judge considered that an SPO would require Mr Hayes to be detained for a longer period, that would not be the case if his responsible clinician was not satisfied that he was fit to be released from compulsory status and a court made an extension order.
[70] Under either order, Mr Hayes will be detained in a mental health facility and receive care from clinicians. He will not be released under either order until it is satisfied he is no longer unfit to stand trial or can be adequately managed as an outpatient. The Judge was not satisfied the responsible clinicians would fulfil their
“heavy” responsibilities. That finding overlooks that it is the clinicians’ job to shoulder the responsibility of patients in need of mental health treatment. The rationale for the Judge expressing doubts as to whether a clinician would carry out their legal responsibilities is unclear. In my view, the Court must determine disposition having regard to the legislative framework and not a generalised concern as to whether those clinicians will or are capable of performing their legislative responsibilities. As was observed by the Court of Appeal in M (CA856/2013) v R:53
It was also common ground that in assessing future risk, the Judge was required to assume clinicians will act responsibly and that if he had not done so then that would be contrary to H (CA841/2012) v R and amount to an error of reasoning.54
(footnote added)
I accept Mr Gullidge’s submissions that factor was not a relevant circumstance in considering whether an order under s 24 was necessary.
[71] I agree with the Judge the obligations that might fall on family members might be relevant circumstantial consideration but, as Mr Mohammed appropriately conceded, there was no material before the Judge to support the finding that a heavy responsibility would fall on Mr Hayes’ daughter if he was subject to a CTO, or whether his daughter could discharge those responsibilities. Notably, Dr Foulds consulted with Mr Hayes’ daughter in preparing a report that ultimately supported Mr Hayes being subject to a CTO provided there was assertive community follow-up after release. He did not raise any concerns as to her willingness and ability to play a role in any post release follow-up treatment. I accept the Judge gave too much weight to this factor given there was no evidential basis.
[72] In preferring an SPO over a CTO, the Judge referred to Mr Hayes’ mental illness as summarised by Dr Foulds, his poor response to treatment and what was described as an unacceptable escalation in risk to himself and the community. Mr Gullidge submits that the Judge was really doing no more than finding that Mr Hayes is mentally disordered.
53 M (CA856/2013) v R [2014] NZCA 280 at [26].
54 H (CA841/2012) v R [2013] NZCA 628 at [49].
[73] Mr Gullidge is correct to submit that in order for the Court to make a CTO, the Court must first be satisfied that the patient is mentally disordered. “Mental disorder” and “mentally disordered” are defined in s 2 of the MHCAT as follows:
mental disorder, in relation to any person, means an abnormal state of mind (whether of a continuous or an intermittent nature), characterised by delusions, or by disorders of mood or perception or volition or cognition, of such a degree that it—
(a)poses a serious danger to the health or safety of that person or of others; or
(b)seriously diminishes the capacity of that person to take care of himself or herself;—
and mentally disordered, in relation to any such person, has a corresponding meaning
[74] Mr Hayes undoubtedly suffers from a mental disorder as defined in MHCAT. I agree with the Judge that Mr Hayes’ condition is such that he poses a serious danger to the health or safety of himself or others and that his condition is such that it seriously diminishes his capacity to take care of himself. The consequence of that finding is that Mr Hayes meets the criteria for the Court to make a CTO. As Mr Gullidge submitted, the Judge has relied on those very factors to determine that Mr Hayes should be subject to an SPO.
[75] In Tuira, the Court of Appeal substituted an order under s 24(2)(a) for an order under s 25(1)(a), concluding:55
… we are doubtful that Mr Tuira’s rehabilitation and reintegration to the community will be advanced by detention pursuant to s 24(2)(a) and ongoing involvement in the criminal proceedings. Therefore, the only purpose served by s 24(2)(a) order would have been protection of the public. However, that factor could equally have been addressed through an order made under s 25(1)(a) because it would have the effect of a compulsory treatment order and could have been specified as an inpatient order. Because the criteria for a compulsory treatment order under MHCAT is a mental disorder, which includes posing a serious danger to the health and safety of others, this concern is able to be addressed through such an order.
[76] Similarly, I do not consider that Mr Hayes’ rehabilitation and reintegration into the community will be any more advanced by an SPO than a CTO. The practical effect
55 Tuira v R, above n 10, at [65].
is the same. Dr Foulds confirmed that the supervised leave that Mr Hayes presently enjoys would not be an option under an SPO. I consider supervised leave will advance Mr Hayes’ rehabilitation and reintegration.
[77] In these circumstances, there is nothing in the way of managing the risk to the public that an SPO under s 24(2)(a) of the CPMIP would achieve that a CTO under s 25(1)(a) of the CPMIP and s 30 of the MHCAT together would not. Mr Hayes will be detained and receive the appropriate treatment and care under both pathways.
Conclusion
[78] It is now over 21 months since Mr Hayes was arrested and charged. Dr Foulds has had extensive dealings with Mr Hayes. I think it is significant that he has noticed a significant shift in Mr Hayes’ level of cooperation. Under Mr Hayes’ current treatment, he has become more settled. He has exhibited no recent incidents of aggression and Dr Foulds described him as being managed satisfactorily in an open rehabilitation ward. Mr Hayes has been permitted supervised leave, he has not tried to abscond and while his delusions remain present, his level of distress and preoccupation about them has reduced significantly.
[79] I acknowledge that Dr Foulds expresses concern about Mr Hayes’ cognitive functioning and his ability to care for himself upon discharge from the ward. However, I do not consider that concern to justify a finding that an SPO is necessary, particularly so when Dr Foulds ultimately found that Mr Hayes could be managed effectively under an inpatient CTO provided there is suitably assertive community follow-up after his release from hospital. In my view, it is appropriate for the Court to determine Mr Hayes’ disposition on the basis there will be the appropriate and assertive community follow up on Mr Hayes’ release.
[80] Ultimately, I am unable to find a s 24(2)(a) order is necessary. I am satisfied the primary concern, namely the protection of the public, can be addressed through an order made under s 25(1)(a) if that order is made pursuant to s 30 of MHCAT.
Result
[81]The application for an extension of time is granted.
[82]The appeal is allowed.
[83] The order made under s 24(2)(a) is set aside and substituted with56 an order under s 25(1)(a). I specify that the order is to be an inpatient order.
...................................................
Eaton J
Solicitors:
Crown Solicitors, Christchurch
Public Defence Service, Christchurch
56 In making an order under s 25 of the CPMIP the Court may make an order staying the proceedings. Neither counsel addressed this issue. I therefore express no view as to the appropriateness of a stay.
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