R v Hori
[2024] NZHC 2070
•29 July 2024
IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY
I TE KŌTI MATUA O AOTEAROA TAURANGA MOANA ROHE
CRI-2023-070-3186
[2024] NZHC 2070
THE KING v
TE WAIWHAKAREWA ELSIE JAYE HORI
Hearing: 29 July 20204 Appearances:
A J Pollett for Crown
A M Gold for Defendant
Judgment:
29 July 2024
ORAL JUDGMENT OF O’GORMAN J
This judgment was delivered by me on 29 July 2024.
Registrar/Deputy Registrar
…………………………………
Solicitors:
Pollett Legal Ltd, Tauranga Gold Legal Ltd, Pukekohe
R v HORI [2024] NZHC 2070 [29 July 2024]
[1] Ms Hori faces one charge of murdering her whāngai father, Mr Jason Swales, on 7 September 2023.
[2] At the request of both counsel, this judge-alone hearing is being held under s 20 of the Criminal Procedure (Mentally Impaired Persons) Act 2003 (CPMIP). Section 20 provides a process for a judge to make a finding of act proven, but not criminally responsible on account of insanity. If Ms Hori was insane within the meaning of s 23 of the Crimes Act 1961 at the time of the commission of the offence, then I must find her not guilty on account of insanity.
[3] The purpose of this hearing is for me to decide whether that is my finding. If it is, then I must consider the question of appropriate disposition, given the current state of Ms Hori’s mental health.
Factual background
[4] I start by summarising the agreed facts and, with the agreement of both counsel, under s 9(1) of the Evidence Act 2006 I admit the evidence contained in formal written statements from the relevant witnesses, as filed by the Crown. I have read those witness statements and have seen that they are consistent with the facts I describe below.
[5] Ms Hori resided at the same address as Jason Swales, in Brookfield, Tauranga, along with her cousin. Ms Hori lived in a caravan on the property. Mr Swales had his own bedroom in the house, as did Ms Hori’s cousin.
[6] The events took place on 7 September 2023. On that evening, Ms Hori’s mother and aunt were also visiting and planning to stay the night.
[7] At 7 pm, Ms Hori drove her cousin, mother, and aunt to Kmart in Bethlehem. The mother and aunt stayed in the car while Ms Hori and her cousin went into the shop. Ms Hori purchased a white belt, then drove everyone back to the house.
[8] At 9.16 pm, Ms Hori sent a text message to a friend saying, “I’m soul tied to dad and Izak clarkia, I'm going to kill dad because he’s soul tied with all the whanau and a free mason”. Two friends called Ms Hori to discuss what she meant by the text message. They were very concerned. After speaking with them for a little while, Ms Hori hung up on that call.
[9] Shortly before 10.30 pm, Ms Hori entered Mr Swales’ bedroom holding the belt purchased from Kmart. Mr Swales was lying on the bed watching a video on his phone. He stood up when Ms Hori entered. Ms Hori went up to him, wrapped the belt around his neck and pulled it tight. At first Mr Swales asked what she was doing. When Ms Hori continued to pull the belt tight, his body began to shake. Ms Hori kept pulling the belt until he was lifeless. She then left the bedroom.
[10] In the living room, Ms Hori’s mother became concerned about what was going on, but Ms Hori stopped her mother going into the bedroom to see what had happened. It became obvious that something was seriously wrong and Ms Hori’s mother screamed for help. Ms Hori’s mother, cousin and aunt eventually saw what had happened and emergency services were called at around 10.40 pm but Jason was already deceased. The coronial autopsy report subsequently confirmed that his death was caused by strangulation.
[11] When the police arrived, Ms Hori said, “I killed him, I killed my dad”. She went with police to the station and gave a recorded interview, in which she described what happened, including delusions about needing to kill her dad because he was soul tied and a freemason. She said at one point, “I’m sick” and “I need professional help”.
[12] Ms Hori’s mental health issues that evening were obvious, and this was addressed in the procedures that followed.
Procedural background
[13] From after the arrest, Ms Hori was detained at the Puna Maatai inpatient ward, Henry Rongomau Bennett Centre, which is a mental health facility in Hamilton. This was done for, and based on, various medical assessments. She has been assessed on different occasions by Dr Dean, Dr Kumar, Dr Sapinoso, Dr Hunt and Dr Brunskill,
as well as other medical practitioners. A compulsory inpatient treatment order is in place. In addition, for the criminal process Ms Hori has been remanded at the same facility under s 169 of the Criminal Procedure Act 2011, on the grounds that her mental condition requires that, in her own interest, she be detained in a hospital or secure facility instead of a prison.
[14] Based on medical reports, on 13 June 2024 the prosecution and defence jointly requested a judge alone insanity hearing. As a result, two further medical reports were ordered and this hearing was allocated, to determine the question of insanity, and if acquitted on that ground, the question of appropriate disposition.
Reports of health assessors
[15] I turn now to the reports of the health assessors. Counsel for the Crown and Ms Hori are content for me to admit that evidence from the medical experts in the form of their reports without formal proof. That is appropriate and I do so. The reports are all consistent in diagnosing Ms Hori with schizophrenia, and with a finding that she was suffering an acute psychotic episode when she strangled Jason Swales on the evening of 7 September 2023:
(a)Dr Kumar, a Consultant Forensic Psychiatrist, has been the treating responsible physician since her admission to the Puna Maatai inpatient ward. At the outset, it was his considered opinion that Ms Hori fulfilled the diagnostic criteria for a first episode psychosis. Dr Kumar subsequently diagnosed Ms Hori with schizophrenia and has been overseeing her treatment with antipsychotic medication.
(b)Dr Brunskill, a Consultant Forensic Psychiatrist, issued a report dated 19 March 2024 addressing (among other things) the issue of insanity at the time of the act causing death. He interviewed Ms Hori on 9 and 23 February 2024. He concurred with the diagnosis of schizophrenia. In terms of whether Ms Hori was capable of knowing that her acts were morally wrong, his view was that a defence of insanity is available. He noted that Ms Hori consistently described (and has been assessed as having) a psychotic experience. Symptoms at the time included
auditory hallucinations and paranoia. This psychosis affected her state of mind and appeared to have been all-encompassing and overwhelming. In his view, the purchase of the belt immediately prior would have been in the context of the same psychotic experience.
(c)Dr Hunt is a locum Experienced Medical Office in Psychiatry. His report on the same issues is dated 19 March 2024. He reviewed various sources of information and interviewed Ms Hori on 15 March 2024. He concurred with the diagnosis of schizophrenia. Dr Hunt noted an abnormal state of mind characterised by bizarre and paranoid delusions accompanied by auditory hallucinations, ideas of reference and of thought insertion beginning in March 2023 and increasing in severity over a period of months, affecting Ms Hori’s functioning and posing a risk to the health and safety of others. His assessment was that Ms Hori killed her father in response to those symptoms of psychosis. Dr Hunt concluded that Ms Hori was mentally impaired at the time of the offence. From the information available to him, Dr Hunt’s opinion is that, on balance, the court would likely find that a defence by reason of insanity is available.
Applicable law — insanity
[16] I turn now to the first stage of the hearing, determining the question of whether Ms Hori is not criminally responsible in terms of s 20 of the CPMIP, on account of insanity.
[17]Insanity is described in s 23 of the Crimes Act:
23 Insanity
(1) Every one shall be presumed to be sane at the time of doing or omitting any act until the contrary is proved.
(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.
…
[18] Under s 23, it is a defence to murder if it is proven that the person was insane at the time of the offending acts. In this way, the law recognises that a person's thinking may, because of mental illness, be so disordered that he or she lacks the mental capacity to be held criminally responsible.
[19] Ordinarily, insanity is a question of fact to be decided by a jury. However, s 20 of the CPMIP provides that a Judge may make an insanity finding without the need for a jury trial if three requirements are satisfied:1
(a)the defendant indicates an intention to raise the defence of insanity; and
(b)the prosecution agrees that the only reasonable verdict is a finding of act proven but not criminally responsible 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 act or omission that forms the basis of the offence with which the defendant is charged.
[20]The need for a Judge to be satisfied provides an important safeguard:2
This is an important matter because it requires the Court, independently of the attitudes taken by the Crown and the accused, to reach its own conclusion as to whether or not an accused person was insane within the meaning of s 23 of the Crimes Act 1961 at the time of the commission of the offence. It is important that the Court not be seen to be a mere “rubber stamp” for the views expressed by professionals, or, indeed, by the Crown and the defence. That is an important safeguard because our criminal justice system generally requires crimes such as this to be determined by a jury and not by a Judge sitting alone. It is equally important, however, that in appropriate cases persons who intend to raise a defence of insanity be permitted to have that issue determined in an expedited form before a Judge rather than going through the ordeal of a trial by jury.
1 Criminal Procedure (Mentally Impaired Persons) Act 2003, s 20(2).
2 R v Brown-Howarth HC Whangarei CRI-2006-088-2445, 10 December 2007 at [19], per Lang J.
Application to facts — insanity
[21] The first two requirements in s 20 were satisfied by 19 June 2024, when the defence had indicated an intention to raise the defence of insanity; and the prosecution agreed that the only reasonable verdict is a finding of act proven but not criminally responsible on account of insanity. Both counsel have today confirmed that this remains their position.
[22] The expert evidence contained in the 19 March 2024 reports of Dr Brunskill and Dr Hunt respectively, both support a finding of insanity on the basis that Ms Hori was suffering an acute psychotic episode when she strangled her father, caused by schizophrenia. Ms Hori was suffering auditory hallucinations and paranoia at the time. This was evident in her text message sent shortly beforehand, and the comments made during her police interview immediately afterwards.
[23] The standard of proof on the defence of insanity is the balance of probabilities.3 I am satisfied that Ms Hori was so overwhelmed at the time with these psychotic delusions, that she simply did not know that the act was morally wrong, having regard to the commonly accepted standards of right and wrong. Suffering under an acute mental illness, she acted on delusions about needing to kill her father because he was soul tied and a freemason. Those thoughts were totally irrational and bore no resemblance to how she would have behaved normally, and the love she had for the person who had been a father for her. The law recognises that Ms Hori cannot be held criminally responsible for her actions while she was insane in that way.
Result
[24] Accordingly, based on the expert evidence, I make a finding under s 20(1) of the CPMIP that:
(a)the act is proven, namely that Ms Hori strangled Jason Swales on 7 September 2023 causing his death;
(b)but Ms Hori is not criminally responsible on account of insanity.
3 Cameron v R [2021] NZCA 80, [2021] 3 NZLR 152 at [69].
[25] As a result, I find Ms Hori not guilty on the charge of murder, on account of her insanity.4 Ms Hori, you are acquitted on that charge.
Victim impact
[26] So, before moving to the second stage of the question of disposition, it is appropriate now to acknowledge the tragic impact on the family.
[27] I have received and read three victim impact statements, two of which were read out in Court. These describe Jason Swales as a gentle and much-loved father figure, brother, uncle and member of his wider whānau. Despite facing many difficulties in early life, Jason established himself as a loyal and reliable employee at AFFCO over some 30 years and he should have been rightly proud of the stable home that he provided for his family, which seems to have been a hub for visits from friends and whānau. I acknowledge the enduring grief and heartache that will be felt from his loss.
[28] Like any situation where insanity is the cause, no sense can be made of these tragic events. The trauma is all the greater when both the victim and the person who caused death are from the same family. I admire the efforts that the whānau members are making to support each other, and to come to terms with the mental illness issues involved.
Applicable law — disposition
[29] I will now turn to the second stage of this hearing — determining the appropriate disposition, given the current state of Ms Hori’s mental health.
[30] Under s 24 of the CPMIP, when the court has sufficient information on the condition of a defendant acquitted on account of his or her insanity, the court must—
(a)consider all of the circumstances of the case; and
4 Criminal Procedure (Mentally Impaired Persons) Act, s 20(1)(c).
(b)consider the evidence of one or more health assessors (as least one being a psychiatrist) as to whether the detention of the defendant in accordance with one of the orders specified in subs (2) is necessary; and
(c)make one of the orders referred to in para (b) if it is satisfied that the making of an 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.
[31] In this case, the type of order available under s 24, if necessary, is that the defendant be detained in a hospital as a special patient under the Mental Health (Compulsory Assessment and Treatment) Act 1992.5 If I am not satisfied that an order under s 24 is necessary, then I can consider an order under s 25.
[32] In determining whether to make an order under s 24, I must determine whether such an order is necessary in the interests of the public. I must take into account both the immediate and long-term risks, as well as the need to comprehensively manage and treat any medical and/or personality issues involved.6 The longer-term public interest is to ensure that the defendant is managed and treated in a manner best calculated to achieve rehabilitation and reintegration into the community.
[33] The standard of an order being “necessary” in the interests of the public is a high threshold — reflecting the consequences of an order that so seriously affects freedom and autonomy.7 It is essentially a restrictive detention order. The Minister of Health determines how long the order is to remain in force.8 Public safety and the defendant’s interests are the paramount considerations for the Minister.9
5 Section 24(2)(a).
6 R v Eteuati [2024] NZHC 1204 at [19], referencing M (CA819/11) v R [2012] NZCA 142 at [7]−[8].
7 At [20], referencing M (CA819/11) v R, above n 6, at [17]; and H (CA841/2012) v R [2013] NZCA 628 at [13].
8 Criminal Procedure (Mentally Impaired Persons) Act, s 33; and M (CA819/11) v R, above n 6, at [11].
9 Subsections 33(4)(a) and (b).
Application to facts — disposition
[34] Two further reports by Dr Hunt and Dr Brunskill focus on the question of determining the most suitable method of dealing with Ms Hori, if acquitted on the grounds of insanity:
(a)Dr Brunskill interviewed Ms Hori again on 5 July 2024. His report is dated 11 July 2024. In his view, although she shows good evidence of recovery from the acute phase of illness, a number of treatment targets remain. Ms Hori continues to hear voices and suffer delusional attribution, and she is sensitive to stress, even in the contained setting of an inpatient ward. In his view, caution is justified — both in terms of mitigating her sensitivities to stress as an illness precipitant, and also to increase her chances of successful treatment and recovery. At the present time, his view is that a question of public protection remains. Dr Brunskill therefore suggests that the Court considers disposition under s 24(2)(a) of the CPMIP, namely that Ms Hori be detained as a special patient.
(b)Dr Hunt interviewed Ms Hori again on 4 July 2024. His report is dated
12 July 2024. He notes Ms Hori has been responding well to medication. However, her conversation with him disclosed the fact of ongoing paranoid delusions. She described auditory hallucinations, ideas of reference, thought projection and thought insertion. Dr Hunt formed the view that her illness remains severe with a range of acute symptoms. Although the intensity of these symptoms has decreased significantly with treatment, her delusions and perceptions are not yet in full remission, despite a calm appearance. Dr Hunt is concerned about the high risk of relapse with a consequent risk to public safety. Accordingly, Dr Hunt has recommended that the Court considers a special patient disposition under s 24(2)(a) of the CPMIP as the more prudent pathway, considering the severity of Ms Hori’s initial illness and where she is on the recovery pathway.
[35] Consistent with the above reports, counsel for the Crown and Ms Hori both accept that an order for detention as a special patent is appropriate. I agree.
[36] Ms Hori has been diagnosed with schizophrenia. As a result of her schizophrenia, she became suddenly and lethally violent. She has made good progress as a result of the treatment she has been receiving. But her condition continues to pose a serious risk to the health and safety of others. She is still in the early stages of a recovery pathway. She continues to suffer from a range of acute symptoms and remains sensitive to stressors, which could cause a relapse. Accordingly, I am satisfied that it is necessary in the public interest that Ms Hori is made a special patient. I also consider that detention as a special patient is in Ms Hori’s interests and will best ensure her continued progress towards rehabilitation and reintegration into the community.
Result
[37] Accordingly, I order, pursuant to s 24(2)(a) of the Criminal Procedure (Mentally Impaired Persons) Act 2003, that Ms Hori be detained in a hospital as a special patient under the Mental Health (Compulsory Assessment and Treatment) Act 1992.
O’Gorman J
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