R v Lam
[2016] NZHC 563
•4 April 2016
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 LamJudgment:
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 which the 49 year old Ms Nguyen was residing and where Mr Lam had been living as a boarder over the previous year or so.
[7] Also living at that address was Ms Hang Mai Thi Phan (“Ms Phan”), her five
daughters aged between 4 and 16 years and her father aged 76 years.
Circumstances of the killing
[8] Late on the afternoon of Sunday, 19 April 2015 Mr Lam was at 72 Cambridge Terrace with Ms Nguyen, Ms Phan, Ms Phan’s elderly father and all five of her children.
[9] Also present were two friends of Ms Nguyen’s. Ms Nguyen and Ms Phan told them that over the previous few days Mr Lam had been coming and going. Ms Nguyen was worried about Mr Lam because he had not slept for several days. Ms Nguyen asked one of the friends to call Mr Lam and asked him to come back home which he did.
[10] On his arrival he was unkempt. Ms Nguyen took his car keys and cell phone and told him he was not to drive. She said he should stay home and sleep and she would take him to the hospital the next morning. Mr Lam responded saying he was alright; he only needed a few beers and then would go to sleep. Ms Nguyen’s
visitors then left.
2 Criminal Procedure (Mentally Impaired Persons) Act, s 9.
[11] At approximately 6:50 pm Ms Nguyen, Mr Lam, Ms Phan and her father were in the kitchen. Mr Lam was standing in the corner with both hands behind his back. He was acting strangely. He looked at Ms Phan and asked her what she wanted. She became fearful and left the kitchen to tell her children to stay in their room.
[12] This left Mr Lam, Ms Nguyen and Ms Phan’s father in the kitchen. It seems that at this point it became apparent to those in the room with him that Mr Lam was holding a knife behind his back. Ms Nguyen, in an attempt to calm and appease Mr Lam, offered to get him a beer from the fridge. As she turned towards the fridge Mr Lam closed the door next to the fridge. Ms Phan’s father left the kitchen.
[13] Within seconds of doing so he heard Ms Nguyen call out. He returned to the kitchen. He saw Mr Lam holding Ms Nguyen’s wrist. He saw him stab her in the abdomen using his free hand. Ms Nguyen screamed out. Mr Lam stabbed her a second time.
[14] Ms Phan’s father beat a retreat from the kitchen and joined his daughter and the children hiding in the bedroom. At some point after Ms Phan’s father left the kitchen, Ms Nguyen was stabbed a third time.
[15] One of the children, who had been in the bathroom, called the Police. Mr Lam walked around the house calling out for Ms Phan. He tried to get into the room where she and the others were hiding but they managed to hold the door shut against him.
[16] Mr Lam then pulled the slumped and inert figure of Ms Nguyen from the kitchen. He placed her at the back door steps.
[17] Shortly afterwards the Police arrived. They found Mr Lam in the kitchen. Attempts to resuscitate Ms Nguyen were unsuccessful and she was pronounced dead at the scene.
Dealings with the Police after the killing
[18] Mr Lam was placed in handcuffs and taken from the scene to a nearby Police car. But he escaped and ran back across the road towards the scene before he was tackled to the ground.
[19] Later, at the Police station, approximately an hour after the killing, Mr Lam said to one of the attending Police, “How long do I have sit here?”; “Can I go to bed?”; “I want to see my lawyer …” and “I don’t know why I do that man. I wasn’t thinking.”
[20] Mr Lam was then interviewed. Through the Vietnamese interpreter he said, “I was out of control and angry. That’s why I stabbed my partner in the belly”. He expressed remorse. He also said, “I stabbed her in the tummy – at the time I was out of control and I’m very remorseful now.”
[21] When the Police attempted to facilitate Mr Lam’s right to counsel, Mr Lam
again tried to escape and had to be restrained.
[22] Later, while he was being examined by the Police doctor, he made two further attempts to run from the room. The Police doctor’s evidence was that Mr Lam was quiet with no vocal response and was initially resistant to examination. The doctor described him as appearing “anxious, frightened and distrustful”. These observations were supported by the fact that during the 38 minute interview Mr Lam threw several punches at the Police interviewer.
[23] Throughout the interview Mr Lam was largely unresponsive to the questions although he did state, “Ah I was, lost a tem … temper, I temper, I ah stabbed …I”.
Post mortem
[24] Dr Paul Morrow conducted the post mortem examination on 20 April 2015. He described three stab wounds. He concluded the cause of death was two stab wounds to the abdomen, both to a depth of approximately 12 centimetres.
[25] The third wound to Ms Nguyen’s left arm was non-fatal.
Defendant’s mental health prior to the killing
[26] Mr Lam has a well documented history of contact with mental health services since 1997. He has been diagnosed as suffering from schizophrenia. Since 1997 there have been approximately nine psychiatric hospital admissions. Initially he was under the care of the Intensive Care Team, Manukau. In 2008 he was transferred to Community Mental Health Services. Until December 2014 Mr Lam was receiving intra-muscular injections to medicate and treat his schizophrenia.
[27] However, on 2 December 2014, he requested this regime be substituted by taking oral medication in the form of tablets. His mental health social worker last saw Mr Lam on 3 February 2015 when he appeared to be doing well. There were unsuccessful attempts to contact him on two occasions in April.
[28] Mr Lam missed two appointments with his mental health doctor on
19 February 2015 and 8 April 2015.
[29] Mr Lam’s co-workers at a local printing business described recent changes in his behaviour. In the days preceding the killing, Mr Lam’s co-workers described finding him asleep in his car. He called in sick on 17 April 2015, just two days before the killing, and gave no notice he would not to turn up for work on the Sunday, the day he killed Ms Nguyen.
[30] This evidence is supplemented by the observations of those living at Cambridge Terrace, who described Mr Lam’s deteriorating behaviour in the days before. He spent a lot of time driving in his car, seemed quieter than usual and told them he had not taken his medication for over a month. Those living at Cambridge Terrace tried to convince him to go and see his doctor or go to hospital. They were deeply worried about him.
Events after the killing
[31] Mr Lam first appeared in the Manukau District Court on 20 April 2015, the day after the killing.
[32] He was seen by a Court liaison psychiatric nurse who made a diagnosis of schizophrenic relapse with delusional ideas. She observed responses to hallucinations and recommended immediate assessment and treatment.
[33] Adopting this recommendation, the Court remanded Mr Lam to the Mason Clinic under s 38(2)(c) of the CP (MIP) Act. He was admitted for a period of inpatient assessment and for a report to be completed regarding his fitness to stand trial. Mr Lam was assessed by Dr Joseph. She found he was guarded, did not want to answer questions and exhibited protracted latency when replying to simple questions such as his date of birth.
[34] Shortly afterwards he was reviewed by Dr Beavan. Her assessment was made for the purposes of ss 10 and 11 of the Mental Health (Compulsory Assessment and Treatment) Act 1992. Dr Beavan’s impression was Mr Lam was experiencing a relapse of his psychotic illness with persecutory beliefs and thought disorder.
[35] On 28 April 2015 Dr Joseph interviewed Mr Lam for the purposes of the s 38 report. She concluded that Mr Lam met the criteria for a diagnosis of schizophrenia and substance abuse.
[36] On 29 September 2015 Dr Russell Wyness, a highly respected and well qualified forensic psychiatrist, provided his report on Mr Lam. This concluded Mr Lam met the criteria for a defence of insanity under s 23(2)(b) of the Crimes Act
1961 (“the Crimes Act”).
[37] Following receipt of this report the Crown engaged Professor Graeme Mellsop. Professor Mellsop is an internationally recognised leader in forensic psychiatry. On 1 February 2016 Professor Mellsop furnished a report to the Crown in which he essentially agreed with Dr Wyness’ conclusion.
[38] On 10 February 2016 the Crown and the defence filed a joint memorandum advising they had engaged two forensic psychiatrists who were in agreement that the only reasonable verdict in Mr Lam’s case was one of not guilty by reason of insanity.
[39] Following the filing of that memorandum this matter was set down for
determination and subject to the Court’s findings, disposition.
Procedure
[40] There are three issues which must be addressed at this hearing. They are:
(a) whether I am satisfied, beyond 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);
(b)whether I am satisfied, on the balance of probabilities, that Mr Lam was insane at the time he killed Ms Nguyen; and
(c) if so, what orders should be made on the question of disposition. [41] I turn now to consider each of these issues.
Actus reas and mens rea
[42] Detective Sergeant Bright gave evidence and produced an agreed summary of the facts. The essence of her evidence has already been discussed.
[43] There can be no doubt whatsoever that Mr Lam killed Ms Nguyen. Based on the circumstances, had he been sane at the time, there is plainly ample evidence that the mens rea for murder is established beyond reasonable doubt.
[44] I am satisfied on the evidence that Mr Lam either intended to cause Ms Nguyen’s death3 or that he intended to cause her bodily injury which he knew was likely to cause death and was reckless whether death ensued or not.4
Insanity
[45] Pursuant to s 20(2) of the CP (MIP) Act I must record a finding of not guilty on account of insanity if:
(a) Mr Lam indicates he intends to raise the defence of insanity; and (b)
the prosecution agrees the only reasonable verdict is not guilty on account of insanity.
[46]
Both
of these issues were fully addressed in the very helpful joint
memorandum of counsel dated 10 February 2016.
[47] The next issue is whether I am satisfied, on the basis of the expert evidence received, that Mr Lam was insane at the time the commission of the offence.
[48] The law of insanity in New Zealand is governed by s 23 of the Crimes Act which relevantly provides:
“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.
(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.
…”
[49] As is reflected in s 23(1), everyone is presumed to be sane at the time of the commission of any act or omission until the contrary is proved. Thus the onus of proving insanity falls on Mr Lam to establish, on the balance of probabilities, that he was insane in terms of s 23 at the time the offence was committed.
[50] Two elements need to be established under s 23(2). First, Mr Lam must prove he was suffering from a disease of the mind at the time the offence was committed. Additionally, he must establish that the disease was such that he did not know the nature and quality of the act constituting the offence at the time the offence was committed; alternatively, he must establish that he was incapable of knowing the act was morally wrong having regard to the commonly accepted standards of right and wrong.
[51] Although s 23(2) refers to capacity, the Court of Appeal has made it clear that such a literal interpretation of s 23 is misleading.5 Nor is it necessary to consider notions of the “commonly accepted standards of right and wrong”. Thus the test is simply expressed in the following fashion:
“Did Mr Lam, by reason of his disease of the mind, not know that what he was doing was morally wrong?”
[52] I shall now turn to consider the two elements of s 23(2).
(a) Disease of the mind
[53] In anticipation of today’s hearing I have been provided with two reports from the leading forensic psychiatrists engaged in this case.
[54] Dr Wyness, for the defence, gave evidence that Mr Lam suffers from a mental impairment in the form of schizophrenia. Schizophrenia is a well recognised disease of the mind for the purposes of s 23.6 Dr Wyness concluded that at the time Mr Lam killed Ms Nguyen he was “suffering from an acute relapse of psychotic symptoms”. Dr Wyness noted that Mr Lam has a lengthy history of episodes of psychotic symptoms including delusions, hallucinations and at times disorganised and even
catatonic behaviour. In Dr Wyness’ opinion Mr Lam suffers from schizophrenia and at the time of the offending was suffering from an acute relapse of psychotic symptoms. In the period before the index offending his symptoms of auditory hallucinations had been increasing for many weeks and his behaviour had become increasingly driven by paranoid ideation. This was particularly evident in the few days preceding his attack on Ms Nguyen.
[55] Professor Mellsop who, as did Dr Wyness, interviewed Mr Lam agrees with
Dr Wyness that Mr Lam suffers from schizophrenia.
[56] In coming to that conclusion he noted the multiple observations by various witnesses which revealed that in the days before the attack Mr Lam had been exhibiting associative dysfunction (thought disorder), affective disturbance, autistic behaviour (acting in accordance with his own inner directives) and ambivalence. He concluded that at the time of the acts Mr Lam appeared to be suffering from all of these features, although by the time Professor Mellsop examined him, Mr Lam presented as mentally well, a diagnosis which Professor Mellsop attributed to the influence of the prescribed anti-psychotic medication. In fact, Professor Mellsop concluded that it was beyond reasonable doubt that Mr Lam was in a psychotic phase of his long term schizophrenia.
[57] I accept the expert opinions of Dr Wyness and Professor Mellsop. I am satisfied that at the time Mr Lam fatally wounded Ms Nguyen he was labouring under a disease of the mind, namely schizophrenia.
(b) Did he understand that what he was doing was morally wrong?
[58] This is the second matter of which I am required to be satisfied. As an aside I note that in the circumstances of this case there is no need to consider whether Mr Lam understood the nature and quality of the act.7 Both Dr Wyness and Professor Mellsop agree he understood the nature and quality of the act.
[59] Thus, I turn to consider the second limb of this part of the enquiry and that is whether I am satisfied Mr Lam did not understand that what he was doing was morally wrong.8
[60] Again, both psychiatric experts are aligned on this issue. Both agree that such was the extent of Mr Lam’s schizophrenia that he did not know that what he was doing was morally wrong. They do, however, have slightly differing views on some aspects of this analysis.
[61] Dr Wyness, in a very helpful and detailed 14-page report, listed nine relevant issues which lead him to this conclusion. These are set out in counsel’s joint memorandum which I adopt for the purpose of this decision. They are:
(a) Mr Lam is a 38-year old ethnic Chinese man from Cambodia, with an established diagnosis of schizophrenia. Since being first diagnosed in
1997 he has had at least nine hospital admissions.
(b)In mid-January 2015 Mr Lam stopped taking his anti-psychotic medication and about a month later began experiencing mild psychotic symptoms.
(c) In the lead up to the alleged offending, Mr Lam’s psychotic symptoms increased in intensity. Dr Wyness found that for at least two days prior to the alleged offending Mr Lam, “had been suffering from paranoid thinking, auditory hallucinations and disorganised behaviour”.
(d)This paranoid thinking became an increasing driver of Mr Lam’s behaviour in the days leading up to the alleged offending. For example, Mr Lam’s fear of someone trying to kill him caused him to avoid his home to the extent that he attempted to sleep at his workplace and drove around Auckland “in an aimless way” for each of the two weekend days leading up to the offending.
(e) Those around Mr Lam (including his landlord and friends) became concerned for his mental health and wanted to take him to hospital.
(f) Mr Lam’s paranoid thinking and auditory hallucinations at the time of
the offending are emphasised by Dr Wyness. For example:
(i)Mr Lam believed he heard the deceased and another friend discuss how they might kill him and chop off his head. The deceased’s face also appeared to be altered. This caused Mr Lam to move away from his friends and arm himself with a kitchen knife.
(ii)Upon the removal of his keys and cell phone, Mr Lam “suddenly believed that he was likely to be killed imminently”. He then heard the voice he had been experiencing in the weeks leading up to the offending, saying to him, “just do it or she will get them to kill you anyway”. Mr Lam then stabbed the deceased as she advanced towards him asking him to hand over the knife.
(g)Mr Lam continued to display “paranoid ideations” after stabbing the deceased. This is reflected in his behaviour, for example assaulting the Police officer because he felt threatened, his initial refusal to take food at the hospital because of the belief that it was poisoned, and his guarded and suspicious manner with those around him during the first few weeks of his treatment at the Mason Clinic.
(h)The report also records details of psychiatric evaluations made by the liaison psychiatric nurse at both the Manukau District Court (on
20 April 2015) and the Mason Clinic (on numerous occasions in April from 20 April 2015). These reports also diagnosed a relapse of schizophrenia and noted the psychotic symptoms being experienced by Mr Lam at that time.
(i)Dr Wyness noted the similarity between the psychotic symptoms experienced by Mr Lam during this period, and the symptoms that Mr Lam had experienced in previous episodes such as in 2010, where he also believed that people were intent on killing him.
[62] Thus, Dr Wyness concludes that Mr Lam suffered from schizophrenia and at that time of the fatal attack was suffering from an acute relapse of his psychotic symptoms. Dr Wyness’ opinion is that Mr Lam did not believe it was morally wrong to kill Ms Nguyen as, due to his schizophrenia, he believed his own life was under imminent threat at that time.
[63] Professor Mellsop, after reviewing the evidence and Dr Wyness’ report, concludes that at the relevant time Mr Lam was subjectively confused and uncertain about what to do. Professor Mellsop was less inclined to Dr Wyness’ view that the prime explanation of Mr Lam’s pathological behaviour was that he believed he was acting in self defence. Instead, Professor Mellsop was of the view that Mr Lam’s autistic pre-occupation with his inner world (his “associative disturbance”) and his confused thinking which underpinned his ambivalence, exemplified by his inability to form a logical plan of action and stick with it, was more causative of the offending. In evidence he said this was repeatedly demonstrated by Mr Lam before and after the attack. In Professor Mellsop’s opinion Mr Lam experienced marked ambivalence. He felt “unsafe” and that something was wrong. His state of mind explains the apparently purposeless driving around. Professor Mellsop gave evidence that Mr Lam either hallucinated or misinterpreted items the children were wearing describing his hallucinatory experiences of certain voices saying:
“Tonight we use the hammer and cut him up and throw the pieces into the sea.”
[64] In giving this description Mr Lam did not express anger, only fear, saying:
“I just take the knife and kill her.”
[65] Mr Lam could not recollect any thought processes relevant to either intention or moral issues. For these reasons, Professor Mellsop concluded he did not know the moral rightfulness or wrongfulness of his actions. He said that this was particularly
due to the degree of his autistic thinking, his involvement in his delusional world and the presence of relevant auditory hallucinations.
[66] Based on the opinions of both experts, I agree with counsel that there is ample evidence on which I can be satisfied, on the balance of probabilities, that Mr Lam was insane at the time he killed Ms Nguyen.
[67] His schizophrenia was such that he did not know that what he was doing was morally wrong.
[68] Accordingly I find Mr Lam not guilty of the charge on the grounds of insanity.
Disposition
[69] Having determined that Mr Lam has satisfied me on the balance of probabilities he was insane at the time he fatally attacked Ms Nguyen I now turn to consider the question of disposition.
[70] The disposition of those acquitted on account of insanity is governed by ss 23 to 28 of the CP (MIP) Act.
[71] Under s 23 of the CP (MIP) Act, where a person is acquitted on account of insanity the Court must order that enquiries be made to determine the most suitable method of dealing with the person under either s 24 or s 25 of the CP (MIP) Act.
[72] Prior to this hearing and in anticipation that I would be required to consider the question of disposition I asked the parties to make enquiries on this issue so that the question of disposition could be determined immediately after verdict in the event I made a finding of insanity. Section 24 requires me to consider all the circumstances of the case including the evidence given by Dr Wyness and Professor Mellsop in considering whether it is necessary in the interests of the public that Mr Lam be detained as a special patient under the Mental Health (Compulsory Assessment and Treatment) Act 1992.
[73] It requires me to make one of the orders in s 24(2) if I am satisfied making such an order is necessary in the interests of the public or any person or class of persons who may be affected by the Court’s decision. The available orders under s 24(2) are that Mr Lam be detained either:
(a) in a hospital as a special patient under the Mental Health (Compulsory
Assessment and Treatment) Act 1992; or
(b) in a secure facility as a special care recipient under the Intellectual
Disability (Compulsory Care and Rehabilitation) Act 2003.
[74] Special patients are detained indefinitely in a secure mental health facility until such time as the Minister of Health, following consideration of reports from medical professionals, is satisfied that continued detention is no longer necessary to ensure the safety of the public. In this case both the Crown and the defence submit that the appropriate order to make in respect of Mr Lam is that he be detained as a special patient.
[75] This submission is supported by medical opinion. Dr Wyness has provided a dedicated report dated 16 March 2016 on the issue of disposition. He recommends Mr Lam be made a special patient. Professor Mellsop has read Dr Wyness’ report. He agrees with Dr Wyness’ conclusions and, more particularly, agrees Mr Lam should be made a special patient. Additionally, I have received supplementary oral evidence from both experts. I have heard cross-examination and I have asked both experts questions of my own.
[76] For the same reasons as the experts, I conclude Mr Lam should be detained as a special a patient. My reasons follow.
[77] First, Mr Lam’s offending is at the most serious end of the criminal spectrum.
[78] Second, there is a risk of re-offending in the event Mr Lam is non-compliant with medication.
[79] Third, by the time both psychiatrists met with Mr Lam he was not suffering psychotic symptoms. In the absence of psychosis his risk to others is assessed to be low.
[80] Fourth, Dr Wyness believes that a valid treatment purpose could be served by Mr Lam being hospitalised and the subject of forensic rehabilitation. This process will involve him receiving education to improve his understanding of the nature of his illness, helping him to learn to identify the early warning signs of recurrence and to take appropriate steps to ensure he does not relapse. These interventions will also assist in his understanding of the factors which lead him to relapse and in making changes in his lifestyle to mitigate the risk of that recurring. This would include, but would not be limited to, education about the effects of alcohol and illicit drugs. These aspects of rehabilitation are assessed as being most effectively achieved in an inpatient context.
[81] Another available option would be to have Mr Lam treated as a patient under the Mental Health (Compulsory Assessment and Treatment) Act 1992.9 However, I am satisfied on the expert evidence the benefits of a compulsory inpatient regime which would ensure compliance with an education and rehabilitation programme, and which is obviously necessary in Mr Lam’s case, will be less likely to succeed if Mr Lam is subject to a s 25(1)(a) order. This is because apparently, little or no security can be assured and Mr Lam would likely be permitted to undertake unescorted leave within weeks of his admission. Plainly that is wholly inappropriate
in the present circumstances where, if Mr Lam is to be re-admitted to the community, sufficient safeguards need to have been put in place to ensure there is no possibility of a recurrence of offending.
[82] Similar concerns arise around the imposition of a community treatment order.10 Neither option meets the statutory purposes, especially in the context of s 24(1)(c) which requires me to have regard to the interest of the public or any person or class of persons who may be affected by decision.
[83] The position was succinctly described by Professor Mellsop in his oral evidence in the following way:
“I have a very firm opinion that special patient status is an essential contribution in this man’s case, as it so vividly illustrates what a legally more slack type of supervision has allowed to happen. … Special patient status means that any degrees of freedom in the community and legally sanctioned
… compulsion for aspects of his treatment have Wellington/ministerial oversight for the special patient which is not available under any of the [other alternatives]. On the specific issue of … the change from long acting injections to oral medication, which are seen by me as a major contributor … to this case do not have Wellington’s or ministerial oversight …. But, decisions are much more open to peer review and special patient panel review. … [It] is an essential contribution to risk management.”
[84] For these reasons, I agree with the forensic experts that the option most likely to benefit Mr Lam in the longer term and to ensure the preservation of the best interests of the public and others, including their safety, is for Mr Lam to be detained in a hospital as a special patient under the Mental Health (Compulsory Assessment and Treatment) Act 1992 where he will receive forensic clinical treatment, monitoring and rehabilitation as an inpatient in a secure facility.
[85] It is heartening that the experts share the view Mr Lam’s prognosis is a reasonably good one. When treated and on medication the evidence is that he has been able to maintain a positive lifestyle, has been a functioning contributor to society, and has been able to be engaged in productive employment.
[86] In the light of the evidence and having heard from counsel on this question I am satisfied, for the reasons listed above, it is appropriate to order that Mr Lam be detained in a hospital as a special patient under the Mental Health (Compulsory Assessment and Treatment) Act 1992 in terms of s 24 of the CP (MIP) Act. And I make an order in those terms.
Name suppression
[87] This issue was brought to my attention after I delivered verdict and made orders in relation to disposition. Although Mr Lam’s name has already been published there is a question that now he has been declared a special patient there is a statutory prohibition on further publication.
[88] The issue is whether s 25 of the Mental Health (Compulsory Assessment and
Treatment) Act 1992 (“the MH (CA&T) Act”) may apply in this case.
[89] I raised this issue with counsel in a Minute dated 5 April 2016. I set out my reasons but for why I was inclined not to suppress Mr Lam’s name. Counsel have since advised me that, with respect, they agree with my reasons and have no further submissions to make.
[90] Accordingly my reasons for not making non-publication orders in respect of
Mr Lam follow.
[91] Section 25 of the MH (CA&T) Act states that:
“Sections 11B to 11D of the Family Courts Act 1980 apply to the publication
of a report of any proceedings under this Act –
(a) in a Family Court:
(b) in any other court, in which case references in those sections to the
Family Court or court must be read as references to that other court.”
[92] In turn, s 11B of the Family Courts Act 1980 relevantly provides:
“(1) Any person may publish a report of proceedings in a Family Court. (2) Subsection (1) is subject to subsection (3).
(3) A person may not, without the leave of the court, publish a report of proceedings in a Family Court that includes identifying information where –
…
(b) A vulnerable person -
(i) is the subject of the proceedings; or
(ii) is a party to the proceedings; or
(iii) is an applicant in the proceedings.”
(Emphasis added)
[93] Under s 11D, a vulnerable person is defined as including “a person who is a proposed patient, patient, or restricted patient within the meaning of the Mental Health (Compulsory Assessment and Treatment) Act 1992.”
[94] Finally, under s 2 of the MH (CA&T) Act, the definition of a “patient”
includes “a special patient”.
[95] While by virtue of my orders Mr Lam is now a special patient and is thus a “vulnerable person” in terms of the the MH (CA&T) Act, in my view s 25 does not apply. This is because s 25 applies only to proceedings under the MH (CA&T) Act. The present proceedings, by contrast, were brought under ss 20 and 24 of the Criminal Procedure (Mentally Impaired Persons) Act 2003 (“the CP (MIP) Act”). In my view a plain reading of s 25 of the MH (CA&T) Act makes it clear it was not intended to apply to proceedings brought under any other Act.
[96] The MH (CA&T) Act does contain provisions and processes relating to the care of special patients. For example, s 77(4) provides for the clinical review of certain special patients for the purposes of determining whether they should still be subject to an order of detention as a special patient. A challenge to a decision following such a review would plainly constitute a proceeding under the Act to which s 25 applies.
[97] However, in cases where an order is made to detain an individual as a special patient, the Courts have generally not applied s 25. Instead, they have permitted publication of identifying features of the defendant.11 In some cases, where the identity of the defendant has been suppressed, this has been achieved in the usual way under s 201 of the Criminal Procedure Act 2011 (“the CPA”).12 I suspect that
the reason for this approach is that these Courts have not had the question of the
11 See R v Chand [2012] NZHC 2745; R v Armstrong [2014] NZHC 3150; R v Garibovic [2014] NZHC 2199; R v Morris [2012] NZHC 616; R v Fa [2014] NZHC 1472.
12 R v K [2014] NZHC 1441.
possible application of the MH (CA&T) Act brought to their attention. Certainly, none of these cases has considered whether s 25 of MH (CA&T) Act applies.
[98] There are two cases which contradict this approach. In R v Tampin, Collins J found the accused not guilty on the grounds of insanity and ordered that he be detained as a special patient under the MH (CA&T) Act.13 After reaching this conclusion, his Honour stated:
“Having made this finding, s 25 of the Mental Health (Compulsory Assessment and Treatment) Act 1992 applies. As a consequence, publication of reports of this proceeding are governed by ss 11B and to 11D of the Family Courts Act 1980. Under the Family Courts Act 1980 my leave is required before anything could be published which identifies a vulnerable person. Mr Tampin is a vulnerable person because he is a patient within the meaning of the Mental Health (Compulsory Assessment and Treatment) Act
1992.”
[99] His Honour ultimately permitted publication on the basis the defendant’s name had already been widely published; there was an obvious public interest in allowing the public to become aware of the prosecution; both medical experts had advised that publication would not have an adverse effect upon the defendant’s treatment.
[100] Similarly, in R v McGowan, Courtney J also found the defendant not guilty on the grounds of insanity and ordered that he be detained as a special patient.14 Her Honour then found that s 25 applied and that publication of the defendant’s identifying details was prohibited without the leave of the Court. She noted there were compelling personal reasons why publication might well be refused but, ultimately, granted leave on the grounds that the defendant’s name had already been
published at an earlier stage in the proceedings.
[101] In spite of these decisions, on balance, I consider that the correct interpretation of s 25 of the MH (CA&T) Act is that it does not apply in circumstances where a special patient order is made under s 24 of the CP (MIP) Act. This is because the present proceedings were brought under the CP (MIP) Act and
thus the definition of “vulnerable person” under the MH (CA&T) Act does not apply.
13 R v Tampin [2013] NZHC 2571.
14 R v McGowan [2014] NZHC 541.
Even if the contrary view is taken, given that Mr Lam’s name has already been published in connection with the present charges, it would have been appropriate to grant leave to publish his identifying particulars. Even if I am wrong, there does not seem to be a proper or sustainable basis to make an order under s 201 of the CPA. Certainly no such application has been made.
[102] Accordingly, I make no order suppressing Mr Lam’s name.
Moore J
Solicitors:
Crown Solicitor, Manukau
Ms Dyhrberg QC, Auckland
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