R v Fa
[2014] NZHC 1472
•26 June 2014
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2006-004-3084 [2014] NZHC 1472
THE QUEEN
v
DAVID FRANCIS FA
Hearing: 26 June 2014 Counsel:
A Perkins for Crown
D S Niven for DefendantJudgment:
26 June 2014
ORAL JUDGMENT OF KATZ J
Solicitors: Meredith Connell, Officer of the Crown Solicitor, Auckland
Counsel: David S Niven, Central Chambers, Auckland
R v FA [2014] NZHC 1472 [26 June 2014]
Introduction
[1] Mr Fa is charged with the murder of Mr Stone, and assault with a weapon of
Ms Wilkins and Mr Sirl.
[2] I have conducted sequential hearings this morning to determine: (a) first, Mr Fa’s factual involvement in the offence;
(b) secondly, Mr Fa’s fitness to stand trial;
(c) thirdly, if he is fit to stand trial, whether he should be acquitted on the grounds of insanity; and
(d)fourthly, if he was insane at the time of the offending, what should now happen to Mr Fa.
[3] Given that these issues were required to be addressed sequentially, I made the relevant determinations at the end of each stage of the hearing, with reasons to follow for all determinations at the conclusion of the hearing. In particular, I determined that Mr Fa caused the acts that formed the basis of the charges and was fit to stand trial, but was entitled to be acquitted on the grounds of insanity. Finally, I determined that he should be detained as a special patient under the Criminal Procedure (Mentally Impaired Persons Act) 2003 (“Act”). I now give reasons for those determinations. First, however, I will set out the background to this matter.
Background
[4] Mr Fa was found guilty by a jury of one count of murder and two counts of assault with a weapon, and sentenced to life imprisonment with a minimum term of imprisonment of 14 years on 17 August 2007. Hansen J considered at the time that the evidence against Mr Fa was ‘overwhelming’.1
[5] Almost six years later, on 16 May 2013, the Court of Appeal heard an appeal from Mr Fa.2 It determined that Mr Fa had been unfit to stand trial in 2007. The Court recognised that Mr Fa had been assessed by two psychiatrists prior to trial. He had no known psychiatric history and the doctors had had difficulty obtaining information from him, as he was extremely guarded and uncommunicative. One psychiatrist, Dr Duff, felt unable to recommend that he was fit to stand trial,
although he superficially appeared to be fit. The second psychiatrist recommended, on balance, that Mr Fa was fit to stand trial.
[6] The trial proceeded and Mr Fa was found guilty. After the trial, it became apparent that Mr Fa had serious mental health issues. Mr Fa behaved bizarrely in prison, talking to himself, displaying disorganised thought processes and irrational outbursts of aggression. As a result, Mr Fa received treatment from the prison psychiatric service. Treating clinicians came to the view that Mr Fa was suffering from a psychotic illness. In October 2010 Mr Fa’s medication was changed, resulting in a marked improvement in his presentation. On reassessing Mr Fa, Dr Duff concluded that Mr Fa’s earlier lack of communication prior to his trial was due to his underlying illness.
[7] The Court of Appeal found that the medical evidence relied on in Mr Fa’s case was strong and unchallenged, leading to the view that prior to and during the trial it was highly likely that Mr Fa was suffering from mental impairment in the form of paranoid schizophrenia. The Court was satisfied that this mental impairment compromised his ability to communicate and instruct counsel, his capacity to make a choice of plea, and his ability to follow the proceedings. Mr Fa’s convictions were quashed and the Court of Appeal ordered a retrial.
[8] Against that background, I now turn to outline my reasons for my first determination, which related to Mr Fa’s involvement in the alleged offending.
Mr Fa’s involvement in the offences
[9] Section 9 of the Criminal Procedure (Mentally Impaired Persons) Act 2003
(“Act”) provides:
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.
[10] At the conclusion of the s 9 phase of the hearing, I was satisfied on the balance of probabilities that Mr Fa killed Mr Stone and assaulted Mr Sirl and Ms Wilkins with weapons.
[11] The evidence before me in relation to this issue, which was adduced by consent, was an affidavit of Detective Sergeant Millar Rewi. That affidavit annexed the Police Summary of Facts and various witness statements from the original trial. That evidence clearly establishes, on the balance of probabilities, that on 27 January
2006, at 9:35 pm, Mr Fa attacked Mr Stone, a complete stranger, with a carving knife and hammer, killing him. Mr Fa took Mr Stone’s car keys and drove Mr Stone’s car back to Mr Fa’s address.
[12] At 11:48 pm the police located the stolen car and attended the scene. Mr Fa heard the car drive up to his place and armed himself with two knives. Mr Fa lunged at Constable Wilkins who was in the passenger seat of the patrol car. The driver of the police vehicle drove away and called for backup. Constable Sirl was one of several officers who responded to that request. Upon arrival he saw Mr Fa in his driveway and called upon him to surrender. Mr Fa ran down the driveway towards Constable Sirl armed with two knives. That incident gave rise to count 3 in the indictment.
[13] I was satisfied that the evidence before me established that Mr Fa killed Mr Stone. He was identified as the driver of his car, his fingerprints were in the car, Mr Stone’s blood was found on Mr Fa’s clothing and shoes, Mr Fa’s DNA was found
on the handle of the knife, the blade of the knife had traces of Mr Stone’s blood, and
Mr Fa was found with the car keys and some of Mr Stone’s CDs.
[14] Counsel for Mr Fa did not dispute that Mr Fa was involved the various acts which form the basis of the charges against him. Having considered all of the evidence before the Court, the case is overwhelming that, on the balance of probabilities, Mr Fa did kill Mr Stone. I was also satisfied on the balance of probabilities that he assaulted both Ms Wilkins and Mr Sirl with weapons.
Fitness to instruct counsel and stand trial
[15] I therefore proceeded to consider the next issue, which was Mr Fa’s fitness to
stand trial, pursuant to s 14 of the Act, which provides:
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 continue the proceedings.
[16] ‘Unfit to stand trial’ is defined by s 2 of the Act to mean:
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.
[17] Both the Crown and counsel for Mr Fa, and their respective experts, were in agreement that Mr Fa is now fit to instruct a lawyer and to stand trial. Reports from three psychiatrists were in evidence before me.
[18] The first report was prepared by Dr Galpin on 23 July 2013. He met with Mr Fa for approximately three hours on 18 July 2013 to reassess him at that time. At that time Mr Fa told Dr Galpin that his condition had vastly improved since he had previously seen him. He understood that he had been diagnosed with schizophrenia. He described the voices he heard which had initially started as mumblings and which became clearer in 2005, telling him he was invincible and that he could do anything. As to the circumstances leading up to the killing of Mr Stone, Mr Fa stated that at about 3:00 pm on the day of the offending, the voices told him he had to kill “this man” and that he would walk down a certain street and know who that person was. He stated that he believed the voices, and he believed that the police were afraid of him.
[19] Dr Galpin describes that over the course of the interview, Mr Fa was able to give a detailed, fluent, unhindered history of the events surrounding the alleged offending. He was able to describe the differences between the choices of pleas of guilty, not guilty by reason of insanity, and not guilty. Dr Galpin’s report shows that Mr Fa understood the role of expert evidence, was able to describe the role of a judge, a jury, witnesses, and the role of counsel. Dr Galpin summarised his assessment of Mr Fa’s mental state at that time as:
…notwithstanding any residual ‘mental impairment,’ Mr Fa has demonstrated an adequate understanding of the available pleas, has sufficient capacity, in my opinion to understand the nature, purposes and consequences of proceedings, and, in contract to his capacities of twelve/thirteen months ago, has the ability to communicate adequately with counsel for purposes of conducting his defence.
[20] I have also been particularly assisted by the more recent reports of Dr Brinded and Dr Chaplow. I have carefully reviewed Dr Chaplow’s first report of August 2013, when he interviewed Mr Fa at Mount Eden Prison. Dr Chaplow considered at that time that there was no question that Mr Fa had suffered a serious mental illness of a psychotic nature, but that he was currently stabilised in that regard. He understood the issues of pleas and their consequences. Dr Chaplow found Mr Fa’s ability to communicate adequately to be undiminished at the time he saw him, and gave the opinion that Mr Fa was at that stage fit to proceed to trial.
[21] Dr Brinded has provided a report dated 8 April 2004. He examined Mr Fa on
7 March 2014 in the Mason Clinic. Mr Fa had been transferred from the prison to the Mason Clinic on 13 February 2014 due to a decline in his mental state. Despite this deterioration in his mental state shortly before the examination, Dr Brinded considered that Mr Fa was nevertheless fit to stand trial, having responded to the treatment that he was receiving. Mr Fa understood the purpose of Dr Brinded’s visit, the fact that he had been instructed by his counsel and that he would be providing a further report to the Court.
[22] I also received a further report from Dr Chaplow. An unsigned version was provided earlier this week and the signed version was provided when Dr Chaplow gave evidence in Court today. His written report updates his earlier report of August
2013. Dr Chaplow still remains of the opinion that Mr Fa is fit to stand trial. He advised that Mr Fa understands the charges, the date of trial, who his counsel was and what plea he would enter. He understood the consequences of pleading to the changes and the likely respective outcomes. Dr Chaplow in his oral evidence stated that he had seen Mr Fa briefly before Court this morning and remained of the view that he is fit to stand trial. If anything, his mental state was slightly improved this morning compared with the previous occasion on which Dr Chaplow had seen him.
[23] Taking into account all of this evidence, I was satisfied on the balance of probabilities that, despite Mr Fa’s relatively recent downturn in mental health, requiring his readmission to the Mason Clinic in February of this year, he is currently fit to stand trial.
Insanity
[24] Given that finding, it then became necessary for me to turn to the issue of insanity, as Mr Fa indicated through his counsel that he wished to enter a plea of not guilty on the grounds of insanity.
[25] Section 20(2) of the Act provides:
20 Finding of insanity
…
(2) Before or at a trial, the Judge must record a finding that the defendant is not guilty on account of his or her insanity if—
(a) the defendant indicates that he or she intends to raise the defence of insanity; and
(b) the prosecution agrees that the only reasonable verdict is not guilty on account of insanity; and
(c) the Judge is satisfied, on the basis of expert evidence, that the defendant was insane within the meaning of section
23 of the Crimes Act 1961 at the time of the commission of the offence.
[26] Here, both (a) and (b) are satisfied, as the prosecution agrees that the only reasonable verdict is not guilty on account of insanity. I was still required, however, to be satisfied on the basis of expert evidence, that Mr Fa was indeed insane within the meaning of s 23 of the Crimes Act 1961 at the time he caused the death of Mr Stone, and the assaults that followed.
[27] Section 23 of the Crimes Act provides, relevantly:
23 Insanity
…
(2) No person shall be convicted of an offence by reason of an act done or omitted by him or her when labouring under natural imbecility or disease of the mind to such an extent as to render him or her incapable—
(a) of understanding the nature and quality of the act or omission; or
(b) of knowing that the act or omission was morally wrong, having regard to the commonly accepted standards of right and wrong.
(3) Insanity before or after the time when he or she did or omitted the act, and insane delusions, though only partial, may be evidence that the offender
was, at the time when he or she did or omitted the act, in such a condition of mind as to render him or her irresponsible for the act or omission.
…
[28] Dr Brinded and Dr Chaplow have both provided reports expressing their expert opinions as to whether Mr Fa was insane at the time of Mr Stone’s death and assault on the two police officers. Dr Chaplow also gave oral evidence on that issue this morning.
[29] Dr Brinded’s report draws on several sources of information, such as earlier psychiatric reports, witness statements, and an examination of Mr Fa. Dr Brinded noted that the first psychiatric examination of Mr Fa, by Dr Duff, showed that there was a question mark as to the mental state of Mr Fa. A second report was then obtained. In that report, Dr Goodwin considered that it did not appear that Mr Fa was suffering from a mental illness, but that the possibility should be kept in mind if Mr Fa became more communicative in the future.
[30] It is now possible, however, following Mr Fa receiving psychiatric treatment in prison, for a more comprehensive assessment to be made. Dr Brinded’s examination of Mr Fa highlighted his issues in the past, and the fact that by 2005 he said he developed strong feelings that people were out to kill him:
He began to hear “whispering and mumbling” voices that were unintelligible at first. However later these voices developed into the voice of a male and female discussing him. He said they would say things like “Davids going to die”. He said that he also experienced command hallucinations where the voices would tell him to do banal things such as “get up” or “brush your teeth”. He also believed he was receiving special messages from the radio and the television directed to him alone.
It was in this state of mind that Mr Fa said the homicide occurred. He said that his thinking was not all that clear at the time, troubled as he was by constant auditory hallucinations and other bizarre thoughts. However he told me that on the night of the homicide he was sitting in his garage and the thought came to him that he should “rob the house down the road”. However he explained that he did not intend to go in and steal articles, what he intended was that he would walk into the house and that upon seeing him everyone would leave and he would be able to take the house over. He said that alongside the other disturbing symptoms that he had developed, he had also developed a sense of “invincibility” and said that he thought that everybody knew that he was invincible and that they would automatically comply with his wishes. When asked why he took a hammer and a knife
with him he commented “I don’t know, it doesn’t make sense but that’s what
I was thinking at the time”.
…Mr Fa said that along with his delusional belief of “invincibility” was also the belief that “anyone who went up against me would go to hell. Everyone knew that”… the driver got out of the car [and] was walking towards him. Mr Fa said he demanded the keys to the vehicle. He said he doesn’t know why he did that. He said that the driver refused to give him the keys and began to run away. Mr Fa accepts that he then pursued the driver and fatally assaulted him. Mr Fa said “this was something that just happened, I wasn’t thinking of the consequences or of right and wrong, my mind was somewhere else. I don’t know why I have killed him. I’ve never seen him before. I was hearing whispering and mumbling voices…
[31] Dr Brinded considered the development of auditory hallucinations of voices commenting on his actions, paranoid beliefs, grandiose beliefs that God had a special role for him, and stated that it would appear that on the night of the homicide, Mr Fa was in a psychotic state. Dr Brinded recorded:
His delusional beliefs and hallucinatory experiences appear to have led him to the conclusion that he could go and take possession of a house down the road which he said was his intention when he left home. He said that interaction with the deceased was sudden as he met him on the street. Mr Fa said that he could not give an account of why he killed the victim other than the delusional explanation that he could do anything he wanted… and that people would know not to challenge him because if they did “they would go to hell”. Following the homicide Mr Fa gives an account of disconnectedness and lack of concern with respect to his own actions to the point where he said that he did not think about the homicide after it had occurred and when confronted by the police sometime later that night did not connect their arrival with his previous behaviour that night.
[32] The conclusion Dr Brinded came to was that Mr Fa was and is suffering from paranoid schizophrenia. Whilst he was not certain whether or not Mr Fa knew the nature and quality of his actions, he gave the opinion that at the time of the homicide he was not able to know that his actions were morally wrong.
[33] Dr Chaplow’s most recent report also draws on a number of sources, including Mr Fa’s complete Mason Clinic file, the summary of facts, Mr Fa’s criminal history, several previous reports (including the report of Dr Brinded) and the evidence of witnesses. Dr Chaplow considered the history of Mr Fa’s illness in some detail. Issues appeared to have first arisen in 2003 when Mr Fa started to withdraw from friends and family and because increasingly reclusive. He began to hallucinate, particularly at night time. Dr Chaplow then outlined the pattern of
Mr Fa’s illness following the very tragic events that resulted in the charges against him and the death of Mr Stone.
[34] Having fully outlined the sequence of events following Mr Fa’s conviction and the emergence (once he was imprisoned) of evidence of serious psychiatric symptoms, Dr Chaplow was left in no doubt that Mr Fa has schizophrenia. He stated in his report that:
It is clear that at the times he committed the offending he was ill, deluded, paranoid and entitled, believing that the owner of the house he intended to rob or break into would cede the house to him. Instead the victim happened along and after refusing to handover the car-keys, fled and was killed. Clearly he had a ‘disease of the mind’ at the time (although this is for the court to decide) because of his schizophrenia. I believe he probably did know the ‘nature and quality’ of his actions as he was prepared to use his knife to gain entry into the house and carried two knives with him when he confronted the police on the two occasions… His complete lack of remorse for his actions and apparent inability to link his actions to the subsequent police visit to his house, coupled by his grandiose and paranoid delusions at the time suggested an inability of moral awareness for ‘right and wrong’ at that time.
So, on balance, my opinion is that in respect of the three charges he was legally insane at those times.
[35] Dr Chaplow confirmed that evidence in Court this morning.
[36] The expert evidence of both Dr Brinded and Dr Chaplow satisfies me that at the time Mr Fa killed Mr Stone and assaulted the two police officers he was suffering from a disease of the mind, namely paranoid schizophrenia. He was suffering from auditory hallucinations of voices commenting on his actions, paranoid beliefs, and grandiose and paranoid delusions.
[37] I was not satisfied that Mr Fa did not understand the nature and quality of the acts, for the reasons that Dr Chaplow gave in his report and in oral evidence. I was, however, satisfied that the second limb of the definition of insanity was satisfied, in that Mr Fa’s paranoid schizophrenia rendered him incapable of knowing that what he was doing to Mr Stone, and what he was doing to Ms Wilkins and Mr Sirl, was morally wrong, having regard to the commonly accepted standards of right and wrong.
[38] I therefore concluded that Mr Fa was insane when he caused the death of Mr Stone. I also concluded that he was insane when he assaulted Ms Wilkins and Mr Sirl with weapons. I therefore found him not guilty of the three counts against him, on the grounds of insanity. It was then necessary for me to turn to the issue of what should now happen to Mr Fa, in light of that finding.
Disposition
[39] There are several options for dealing with a person who is found not guilty of an offence by reason of insanity. The opinions of both Dr Brinded and Dr Chaplow were that the appropriate course would be for the Court to order under s 24(2)(a) of the Act that Mr Fa be detained in a hospital as a special patient.
[40] Dr Brinded noted Mr Fa’s ongoing unstable mental illness. Dr Chaplow’s written report noted that he had no doubt that Mr Fa has schizophrenia, which is a serious and severe illness with disturbances of behaviour, perception, and thinking and is accompanied by deficits of judgment and insight. Dr Chaplow stated that it can, and is, often successfully treated such that symptoms may recede. It rarely remits entirely, however, and often reappears under stress, with use of psycho-active substances, or when treatment is inadequate or the sufferer is non-compliant with treatment.
[41] In his evidence in Court this morning Dr Chaplow expressed the view that special patient status is necessary to enable Mr Fa to continue his treatment and rehabilitation and also to protect the public from Mr Fa, which is the critical consideration. His view was that, without adequate supervision and without a system of accountability, relapse was likely.
[42] I must take the expert medical opinions into account, together with all of the circumstances of the case, in deciding whether it is necessary in the interests of the public for Mr Fa to be detained in a hospital as a special patient. I concluded that it was, for the following key reasons.
[43] First, the violence caused by Mr Fa’s mental illness was extremely severe, resulting in the death of a totally innocent bystander. It would be inappropriate to risk releasing Mr Fa from care until the clinicians responsible for his care are satisfied that his condition has stabilised to such an extent that he is no longer a danger to the community. That is not currently the case.
[44] Further, Mr Fa’s mental health continues to fluctuate, with intermittent readmissions to the Mason Clinic, the most recent admission being in only February of this year. There would be an unacceptable risk of relapse if Mr Fa’s condition did not continue to be closely managed in a supervised setting, including ensuring that he is compliant with treatment and does not have access to any psycho-active substances.
[45] The risk of further serious violence if Mr Fa was released into the community is unacceptably high in this case. I accept the expert opinions presented to me to the effect that the appropriate disposition is for Mr Fa to be detained as a special patient under the Act. I am satisfied that it is necessary for the protection of the public to make an order to detain Mr Fa as a special patient and I accordingly make such an order.
[46] Finally, for the avoidance of doubt I note that the Court of Appeal has previously made confidentiality and suppression orders until final disposition of these proceedings, to protect Mr Fa’s fair trial rights in the event that he was to proceed to a second trial. Given that I have now found him not guilty on the grounds of insanity and ordered his detention as a special patient, counsel accept that there is
no need for any further confidentiality or suppression orders.
Katz J
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