R v Kingi
[2017] NZHC 2765
•2 November 2017
IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY
I TE KŌTI MATUA O AOTEAROA WHANGĀREI TERENGA PARĀOA ROHE
CRI-2016-088-386 [2017] NZHC 2765
BETWEEN THE QUEEN
Informant
AND
KORONERIA KINGI Defendant
Hearing: 2 November 2017 Appearances:
MB Smith for Crown
DPH Jones QC and BL Sellars for DefendantJudgment:
2 November 2017
Reasons:
10 November 2017
REASONS JUDGMENT OF TOOGOOD [Fitness to stand trial]
This judgment was delivered by me on 10 November 2017 at 4.15 pm
Pursuant to Rule 11.5 High Court Rules
Registrar/Deputy Registrar
R v Kingi [2017] NZHC 2765 [2 November 2017]
Introduction
[1] Mr Koroneria Kingi is charged with the murder of his brother-in-law, David Taniora, at Whangarei on 10 February 2016. It is alleged that, in what the crown says was an unprovoked attack, Mr Kingi killed Mr Taniora by stabbing him in the neck with a knife. Other injuries were inflicted by the knife and other weapons.
[2] In an oral judgment dated 2 November 2017, delivered after I had heard evidence from two health assessors and submissions from counsel for the parties and from Mr DPH Jones QC as counsel to assist the Court, I determined that Mr Kingi is unfit to stand trial. This judgment sets out the reasons for that decision.
Background
[3] Because of concerns about Mr Kingi’s mental health, he has been the subject of enquiries under the Criminal Procedure (Mentally Impaired Persons) Act 2003 (CPMIP Act) since last year. On 3 March 2016, Thomas J directed that two assessment reports under s 38(1)(a) and (b) of the Act be provided to determine whether Mr Kingi was fit to stand trial.
[4] On 25 October 2016, under s 9 of the Act, Whata J recorded a finding, on a balance of probabilities, that Mr Kingi had caused the act that formed the basis of the offence of murder with which he is charged. On 2 February 2017, Fitzgerald J held that she was satisfied on the evidence of two health assessors’ reports that Mr Kingi was mentally impaired. After hearing from counsel for the Crown and Mr Kingi, the Judge found Mr Kingi fit to stand trial. She gave her reasons for that decision in a judgment dated 8 February 2017.
[5] There were continuing concerns about Mr Kingi’s impairment and a further report from a health assessor was called for. The health assessor was asked to report both on Mr Kingi’s fitness to stand trial and, more particularly, on whether Mr Kingi was insane, in terms of s 23 of the Crimes Act 1961, at the time of the acts leading to the charge. On 21 August 2017, after hearing from counsel, I directed that a second
health assessor be requested to report under s 14(1) of the Act as to whether Mr Kingi is mentally impaired and as to whether he is unfit to stand trial.
Relevant law
[6] Section 4(1) of the CPMIP Act says:
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.
[7] The standard of proof as to whether Mr Kingi is mentally impaired and, if so, whether he is unfit to stand trial is in each case the balance of probabilities.1
[8] As to the test to be applied when determining whether a person suffering from a mental impairment is unfit to stand trial, Fogarty J stated in R v Roberts (No 2) that the question to be asked is whether or not the defendant is:2
…unable, due to mental impairment, to conduct a [rational] defence or to instruct counsel to do so…
[9] In Solicitor-General v Dougherty, however, the Court of Appeal rejected the notion that the implementation of the CPMIP Act changed the statutory test for unfitness to stand trial,3 disagreeing with Fogarty J to the extent that his articulation in the circumstances of that case sought to import a decisional competence or “best
interests” inquiry.4 The approach adopted by the Court of Appeal in Dougherty has
1 Criminal Procedure (Mentally Impaired Persons) Act 2003, s 14(3); R v Carrel [1992] 1 NZLR
760 (HC) at 764.
2 R v Roberts (No 2) HC Auckland CRI-2005-092-14492, 22 November 2006 at [57].
3 Solicitor-General v Dougherty [2012] NZCA 405, [2012] 3 NZLR 586.
4 The Court of Appeal in Dougherty noted at [60] that, in any event, the conclusion that the defendant was unfit to stand trial was not open to the Judge on the evidence, as both experts
been characterised as the “low threshold” approach by commentators, who criticise the decision on various grounds.5 I am bound by the Court of Appeal’s decision and I do not dispute the view that the legislative change did not mandate a different inquiry. However, whether or not the threshold is low, it necessitates a base level of rational decision-making capacity. As the wording of paragraph (a) in the definition of “unfit to stand trial” in s 4(1) of the CPMIP Act makes clear, the question is whether the defendant’s impairment renders him unable to conduct a defence or instruct counsel to do so. Where a defendant suffers from a mental impairment to the extent that he lacks the ability to engage in a reasoned decision-making process, the wisdom and consequences of the decision that defendant makes are essentially irrelevant and the issues of principle or policy regarding personal autonomy that the Court was concerned with in Dougherty do not arise.
[10] Although a defendant is not unfit to stand trial merely because he or she has made an unwise choice as to the defence or defences to be run, or is not otherwise acting in their best interests, it remains open to the Court to conclude on appropriate evidence that a defendant is incapable, because of mental impairment, of communicating adequately with counsel so as to be able to conduct a defence or instruct counsel to do so.6 In P v Police, Baragwanath J noted that entitlement to choose implies capacity to do so.7 If the evidence points to the conclusion that a defendant who may appear to have an overall understanding of the trial process nevertheless lacks the fundamental capacity to make reasoned decisions on the basis of that understanding, that defendant is not fit to stand trial regardless of whether or
not those decisions are ultimately in his best interests.
were of the view the defendant was fit to stand trial.
5 Warren Brookbanks “Fitness to Plead – Best Interests Versus Autonomy: Does a Defendant's
Paranoia Matter?” (2013) 20 Psychiatry, Psychology and Law 1; see generally Warren Brookbanks
Competencies of Trial: Fitness to Plead in New Zealand (LexisNexis, Wellington, 2011).
6 R v Butland [2012] NZHC 1586 at [47], decided before the Court of Appeal’s decision in Dougherty. Although the Court adopted Fogarty J’s use of the adjective “rational” to qualify “decision”, it did so in the sense of incorporating reference to the ability to make a reasoned decision without embarking on any analysis of whether the decision was wise.
7 P v Police [2007] 2 NZLR 528 (HC).
Original assessment reports and decision on fitness to stand trial
[11] I turn to the evidence of the experts in this case. It is necessary to describe the earlier reports and prior rulings of the Court on the issue.
[12] In the s 14 hearing before Fitzgerald J on 2 February 2017, expert evidence was presented by Dr Krishna Pillai and Dr Ian Goodwin in the form of reports pursuant to s 38 and oral evidence. In a report dated 3 June 2016, Dr Pillai concluded that Mr Kingi has a chronic psychotic illness and is probably a paranoid schizophrenic, unable to rationally communicate with counsel and unable to conduct a defence. Dr Pillai’s opinion was that, as a result of his mental impairment, Mr Kingi was unfit to stand trial. While acknowledging the limitations of the material available to inform his opinion, Dr Pillai noted that there was strong evidence to suggest that Mr Kingi was suffering from a disease of the mind at the time of alleged offending.8
[13] Dr Goodwin prepared a report dated 23 August 2016. He concurred that
Mr Kingi was probably a paranoid schizophrenic, but said that in the two and a half months since Dr Pillai’s report Mr Kingi’s mental state had greatly improved. Dr Goodwin formed the view, therefore, that Mr Kingi could adequately communicate with counsel for the purposes of conducting a defence and was likely fit to stand trial. Dr Goodwin also noted that as he had no material pertinent to the defendant’s mental state at the time of the alleged offending he could not offer an opinion on insanity.
[14] Dr Pillai prepared an updated report dated 12 October 2016. This report confirmed that paranoid schizophrenia is the appropriate diagnosis and that Mr Kingi may have suffered under this mental impairment for more than 15 years. As a result of ongoing treatment, Mr Kingi had a good understanding of the evidence and facts of his case, as well of the proceedings and his rights. Nevertheless, Dr Pillai noted continued concern regarding Mr Kingi’s lack of insight into having a mental illness and the potential contribution of that mental illness to his thinking at the time of the alleged offending, especially in relation to the notion that he was threatened by the victim. Dr Pillai thought this resulted in difficultly in adequately communicating with
counsel for the purpose of conducting a defence. Dr Pillai considered that Mr Kingi
8 One of the elements of the definition of “insanity” in s 23(2) of the Crimes Act 1961.
has all the cognitive capacities and knowledge consistent with fitness to stand trial but that concerns remained regarding his ability to consider the possibility of an insanity defence. Dr Pillai affirmed these views in a letter dated 6 January 2017 based on
Mr Kingi’s presentation in an assessment on 29 December 2016.
[15] In the hearing before Fitzgerald J on 2 February 2017, both Dr Goodwin and Dr Pillai confirmed their opinions at the time that Mr Kingi could understand the concept of an insanity defence and was fit to stand trial.9
[16] In her reasons judgment published on 8 February 2017, Fitzgerald J accepted the experts’ evidence that Mr Kingi had a mental impairment.10 However, on the basis that the experts viewed Mr Kingi as having a clear, adequate understanding of his available pleas and defences, as well as their consequences; a clear, adequate understanding the proceedings; and an ability to communicate adequately with counsel, Fitzgerald J ruled that Mr Kingi was not unfit to stand trial.11 The Judge noted that while the basis on which Mr Kingi intended to defend the charge may not be considered to be in his best interests, he was nevertheless clear as to the defence he intended to advance.12
New assessment reports
[17] Due to continuing concerns about Mr Kingi’s mental impairment and capacity, notwithstanding Fitzgerald J’s decision, the Court asked for a further report from a health assessor under s 38(1).
[18] Mr Kingi told the health assessors that he was not suffering any mental illness. He said he would not contemplate a defence claiming that he was insane at the time Mr Taniora was killed but that would plead self-defence or that he was guilty of
manslaughter.
9 R v Kingi [2017] NZHC 99 at [22] and [27].
10 At [13].
11 At [34].
12 At [34].
[19] Dr Himadra Seth provided a report dated 7 August 2017 in which he reported that Mr Kingi is suffering from a disease of the mind, namely paranoid schizophrenia. Dr Seth expressed the opinion that Mr Kingi was insane at the time of the acts leading to the charge and was unfit to stand trial.
[20] Dr Seth concluded that Mr Kingi was not fit to stand trial on the basis that:
86. … he is not able to understand that his case might not necessarily qualify as self-defence from a legal perspective. In addition that he has no concept of the pleas of not guilty by reason of insanity, as reflected in his understanding of a hypothetical case and similarly he is unable to understand how the plea of not guilty by reason of insanity would apply to his own case. This is in part due to his concrete and rigid thinking but also his total lack of insight into the fact that he suffers from paranoid schizophrenia. I am of the opinion that he is not able to consider the plea of [not guilty by reason of insanity] due to his illness and that his rationale for his preferred plea option is currently heavily influenced by his psychotic symptoms.
…
88. In terms of being able to communicate adequately with counsel for the purpose of conducting a defence, Mr Kingi is not able to take on board any information regarding the insanity plea…
89. … Due to his ongoing psychosis there would be a strong risk of miscommunication occurring and he could become more litigious and pedantic. Furthermore his thought disorder would impact adversely on his ability to give evidence… I am concerned that he is not able to give adequate instruction to his legal representative and engage in meaningful conversation… I was of the opinion that he could not clearly make his version of facts known to the court or his legal representative as a result of his current psychiatric unwellness.
90. … his current psychotic symptoms are again adversely affecting him to the extent that he would fulfil the unfitness to stand trial criteria.
(emphasis added)
[21] Following my request for a report to update the Court on Mr Kingi’s clinical progress, Dr Seth confirmed those views in his report dated 28 September 2017. Dr Seth concluded that Mr Kingi’s views regarding insanity and an insanity defence have not changed, and that the assessment of Mr Kingi as unfit to stand trial remained the same.
[22] Dr Goodwin provided an updated report under s 38 dated 13 October 2017. Dr
Goodwin observed that Mr Kingi was incapable of appreciating the apparent
contradiction in his view of the pleas he considers acceptable – not guilty to murder on the basis of self-defence, or pleading guilty to manslaughter – and his ongoing immovable view that he has never been mentally ill. Significantly, Dr Goodwin revised his earlier opinion and concluded that Mr Kingi was unfit to stand trial:
82. … the issue of whether Mr Kingi is simply unwilling to consider a not guilty by reason of insanity defence on this charge, or whether he is unable to do so is critical in the determination of unfitness to stand trial.
83. On balance, I am of the opinion that Mr Kingi’s ongoing paranoia, cognitive rigidity, and complete lack of insight, combine to make him unable (rather than just unwilling) to consider a not guilty by reason of insanity plea at this time.
84. I am also of the opinion that this inability to consider such a plea is directly attributable to Mr Kingi’s mental impairment.
(emphasis added)
[23] Dr Goodwin noted that at a superficial level Mr Kingi was capable of communicating adequately with counsel for the purposes of conducting a defence. However, he also observed Mr Kingi’s tendency to dismiss counsel on the basis of relatively trivial matters and formed the view that there was a high likelihood that should counsel be seen to disagree with Mr Kingi he would attempt to replace them again. Dr Goodwin’s overall opinion was that Mr Kingi’s mental state has not significantly improved over an 18-month period to the point he would be capable of appropriately considering a potential defence of not guilty by reason of insanity.
[24] At the hearing, both Dr Goodwin and Dr Seth confirmed their views that
Mr Kingi is suffering from paranoid schizophrenia and is therefore mentally impaired in terms of the Act. They also confirmed that they consider that he is unfit to stand trial (although they accept that is ultimately a question for determination by the Court). Dr Seth appeared to hold that opinion more firmly; Dr Goodwin took the view that the issue is finely balanced but that the balance falls on the side of unfitness.
[25] Dr Goodwin explained that, while Mr Kingi may improve such that he eventually becomes fit to stand trial, it is not possible to give a definitive timeframe within which that may occur. Only periodic reviews over the course of treatment, such as the statutorily mandated reviews at intervals of no longer than six months under s
77 of the Mental Health (Compulsory Assessment and Treatment) Act 1992, can provide the means to know when that assessment is changed.
[26] Dr Seth said Mr Kingi’s impairment precludes him from explaining, to the extent that Dr Seth would wish, his state of mind and the events at the time of the alleged murder. This hampers Dr Seth’s ability to reach a firm opinion about whether
Mr Kingi was insane in the legal sense at the time of the offending. That meant Mr Kingi was unable to have a logical conversation about how an insanity defence would apply to him. Both experts, therefore, said Mr Kingi’s mental impairment makes him unable to consider an insanity defence.
Mr Kingi’s position
[27] Ms Sellars said Mr Kingi disagrees with the reports of Dr Seth and Dr Goodwin and maintains that he does not suffer from any mental illness or impairment whatsoever. He wishes to be held in prison rather than the Mason Clinic, and insists his detention there is unlawful because he is fit to stand trial. I observe, however, that the difficulties experienced by Dr Seth in having a logical discussion with Mr Kingi would equally inhibit counsel in any attempt to explore the possibility of an insanity defence.
The Crown’s position
[28] The Crown Solicitor accepted that there is cause for the Court to be concerned that a potentially available defence of insanity could not be considered by the jury in view of Mr Kingi’s clear instructions to his counsel and the Crown’s inability to raise the issue at trial. The Crown draws a distinction between:
(a) a defendant who has the capacity to understand the trial process and wishes to pursue a defence that, viewed objectively, is not in his best interests;
(b)a defendant who is incapable of properly assessing an available defence due to his mental impairment.
[29] This reflects the evidence of Dr Seth and Dr Goodwin.
Counsel assisting the Court
[30] Given the strictures of Mr Kingi’s instructions to Ms Sellars, I am grateful to Mr Jones QC for his assistance in questioning the expert witnesses and his helpful submissions. Mr Jones also acknowledges the view of the experts in emphasising the difference between a defendant who is able to make an informed choice to follow a course of action not necessarily in his or her best interests, and someone who cannot comprehend the nature of that choice. He submits that if the mental impairment is the source of lack of comprehension, the defendant should be considered unfit to stand trial.
Discussion
[31] While the Court can draw on the evidence of the qualified expert witnesses to assist with assessing the defendant’s mental state, the determination of unfitness to stand trial is ultimately a question for the Court alone. I applied the law summarised above.13
[32] I agreed with Fitzgerald J that the evidence unequivocally establishes that
Mr Kingi falls within the description of being mentally impaired for the purposes of s
14 of the Act.14 However, I was satisfied that the evidence which was not before Fitzgerald J concerning the extent and ramifications of Mr Kingi’s mental impairment and his inability to comprehend an insanity defence strongly supports the conclusion that Mr Kingi is unfit to stand trial at present.
[33] It emerged from the most recent reports and at the hearing that while Mr Kingi is responding positively to treatment by becoming less guarded and more willing to discuss certain manifestations of his illness, that limited improvement has revealed the greater degree of his mental impairment than was apparent from the evidence before
Fitzgerald J. The thrust of the evidence of both experts now is an agreement that Mr
13 At [6]-[10].
14 R v Kingi [2017] NZHC 99 at [13].
Kingi is unable, rather than simply unwilling, to consider an insanity defence. The expert evidence in this case suffices to distinguish it from Dougherty.
[34] Against the background of the evidence and my findings, I turned to the matters to be taken into account in determining whether the accused meets the test of fitness to stand trial. I considered the question of whether he is able to communicate adequately with counsel for the purposes of conducting a defence, under the criteria taken from R v Presser and now conventionally adopted by the courts in New Zealand.15
[35] Consistently with the unanimous views of the psychiatrists who have reported to the Court, I found it to be proved to a high degree of probability that the accused suffers from treatment resistant paranoid schizophrenia and is mentally impaired. Consistently with the views of the psychiatrists who have assessed him and reported to the Court, and with the submissions of counsel, I was satisfied nevertheless that Mr Kingi understands the nature of the charge he faces; is capable of pleading to it and exercising his right of challenge; understands the proceeding; and, with the assistance of counsel, will be able to follow the course of a trial. I also found that he would be able to understand the substantial effects of the prosecution evidence against him to the extent that he understands that he is susceptible to conviction.
[36] On the basis of the evidence given by Dr Seth and Dr Goodwin, however, I found:
(a) there is credible evidence upon which an insanity defence might be founded on Mr Kingi’s behalf; but
(b)Mr Kingi’s denial of his mental illness and impairment, and reported views of the events leading to Mr Taniora’s death, are genuine and psychotic in nature in that they are out of touch with reality and clearly
at odds with the available facts; and
15 R v Presser [1958] VR 45.
(c) that as a result, Mr Kingi is incapable by reason of his mental impairment from communicating adequately with counsel so as to be able to conduct a defence or instruct counsel to do so.
[37] I found therefore, on a balance of probabilities, that Mr Kingi is currently unfit to stand trial.
Orders
[38] For completeness, I repeat the orders I made on 2 November 2017. I ordered under s 23(1) of the Act that inquiries be made to determine the most suitable method of dealing with Mr Kingi under s 24 or s 25 of the Act. Section 23(4) requires that the inquiries be made as quickly as practicable and, in any event, within 30 days after my
2 November judgment.
[39] I directed that the enquiries shall include obtaining a report from at least one practicing psychiatrist who is registered as a medical practitioner as to whether the detention of Mr Kingi in accordance with one of the orders specified in s 14(2) of the Act is necessary in the interests of the public or any person or any class of persons who may be affected by the Court’s decision. The Registrar was directed to ensure that the report is available to the Court and counsel no later than 22 November 2017.
[40] For the purposes of those inquiries, I remanded Mr Kingi to a hospital (being a hospital within the meaning of the Mental Health (Compulsory Assessment and Treatment) Act 1992.
[41] I said that, once the necessary inquiries are complete, I will hear from counsel as to the best procedure to be followed to enable determinations to be made under
ss 24 and 25. I reserved leave to counsel for the Crown and for Mr Kingi to make such further applications as may be appropriate in the light of my findings and in the light of reports resulting from the enquiries.
[42] I recorded my gratitude to the experienced medical practitioners who gave evidence and/or who provided reports in relation to these matters for their industry and
expertise, and to counsel for their assistance. I determined that it was not necessary for Mr Jones QC to provide further assistance as counsel assisting the Court.
……………………………… Toogood J
0