R v Lam - [2016] NZHC 563

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2015-092-004286 [2016] NZHC 563

THE QUEEN

v

THON LAM

Hearing: 4 April 2016

Appearances:

Gareth Kayes and Luke Radich for the Crown
Marie Dyhrberg QC and Kirsten Martelli for Mr Lam

Judgment:

4 April 2016

VERDICT AND JUDGMENT OF MOORE J

THIS JUDGMENT HAS BEEN RE-ISSUED ON 8 APRIL 2016

(i) Section 20 hearing under the Criminal Procedure (Mentally Impaired
Persons Act 2003 (“the CP (MIP) Act”).

(ii) Disposition hearing for purposes of s 23 hearing of the CP (MIP) Act.

R v LAM [2016] NZHC 563 [4 April 2016]

Introduction

[1] Thon Lam (“Mr Lam”) has been charged with the murder of Davina Jane

Nguyen (“Ms Nguyen”) on Sunday, 19 April 2015.

[2] Mr Lam’s three week trial was scheduled to commence today. However, by a joint memorandum dated 10 February 2016, the Crown and the defence advised the Court:

(a) Mr Lam intends to raise the defence of insanity; and

(b)the Crown agrees that, based on two expert psychiatric reports, the only reasonable verdict is not guilty on account of insanity.1

[3] As a result the contested trial has been vacated. Today’s hearing is for the purpose of the Court receiving evidence, including evidence from two expert forensic psychiatrists; and for me to determine the issue of insanity, and subject to that finding, the appropriate orders which should be made in terms of Mr Lam’s disposition.

Factual background

Background facts

[4] Mr Lam is a 38 year old, single, ethnic Chinese man from Cambodia. In

1979, when Mr Lam was three years old, Cambodia was taken over by the Khmer Rouge. His family fled to Vietnam. In the course of their flight his father and older sister died from infectious illnesses. The remnants of the family moved into a refugee camp in Vietnam. From the age of four until he was 15 this was Mr Lam’s home. Unsurprisingly, these circumstances dictated a tumultuous childhood during which Mr Lam was exposed to various life-changing experiences including witnessing his close friend being fatally stabbed in front of him. It was within a very
short time of this Mr Lam developed his first psychotic episode manifested by

1 Pursuant to s 20 of the Criminal Procedure (Mentally Impaired Persons) Act 2003.

suspicion and fear of being killed, symptoms which have since recurred, including during the present offending, as discussed more fully later in this decision.

[5] The factual background giving rise to the charge is not in dispute. The officer in charge, Detective Sergeant Karen Bright, produced an agreed summary of facts. Despite this it is necessary to set out the factual basis because I must be satisfied beyond a reasonable doubt that Mr Lam killed Ms Nguyen and that there is evidence from which the relevant mens rea can be drawn (assuming Mr Lam was sane at the
time of the killing).2

[6] The killing occurred on Sunday, 19 April 2015 at 72 Cambridge Terrace, Papatoetoe. This was the address at…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Lam

Details

AGLC: R v Lam [2016] NZHC 563
Case: [2016] NZHC 563
Decision Date: 4 April 2016

CaseChat Overview and Summary

In the High Court of New Zealand, Thon Lam has been charged with the murder of Davina Jane Nguyen on 19 April 2015. Lam’s trial was set to commence but was vacated due to Lam intending to raise the defence of insanity, with the Crown agreeing that the only reasonable verdict is not guilty on account of insanity. The court must determine if Lam was insane at the time of the offence and if so, the appropriate orders for his disposition. The court found that Lam killed Nguyen and that there was evidence of mens rea if he was sane at the time. The court accepted the evidence of two forensic psychiatrists that Lam was suffering from an acute relapse of psychotic symptoms due to his schizophrenia at the time of the offence, and that he did not know what he was doing was morally wrong. Therefore, Lam was found not guilty on the grounds of insanity. The court ordered that Lam be detained in a hospital as a special patient under the Mental Health (Compulsory Assessment and Treatment) Act 1992.

The court also considered the issue of name suppression. Although Lam had been declared a special patient and thus a “vulnerable person” under the Mental Health (Compulsory Assessment and Treatment) Act 1992, the court found that the Act did not apply to proceedings brought under the Criminal Procedure (Mentally Impaired Persons) Act 2003. As Lam’s name had already been published, the court made no order suppressing his name.

Orders