R v Rameka HC Auckland CRI 2009-004-8772

[2010] NZHC 626

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2009-004-8772

THE QUEEN

v

PRESTON COLE RAMEKA

Hearing:         22 April 2010

Appearances: Mr A Perkins and Ms S Walker for Crown

Mr J Down and Ms Scott for Accused

Judgment:      22 April 2010

(ORAL) JUDGMENT OF LANG J [on disposition of criminal proceeding]

Solicitors:

Crown Solicitor, Auckland

Mr J Down, Public Defence Service, Auckland

R V RAMEKA HC AK CRI-2009-004-8772  22 April 2010

[1]      Mr Rameka faces a charge of murder.  That charge arises out of an incident that occurred at his step-father’s address on 15 April 2009 in which his step-father, Mr Terry Finch, died as a result of a significant blow to the head from an axe.

[2]      Counsel for Mr Rameka wishes to advance the defence of insanity.  For that reason ss 20 to 25 of the Criminal Procedure (Mentally Impaired Persons) Act 2003 (“the Act”) come into play.

[3]      Today I have conducted a dispositions hearing in which I received evidence, first, as to whether Mr Rameka committed the act that forms the substance of the charge.  Secondly, I heard evidence regarding his mental state, both before and after the incident that has given rise to the charge, as well as at the point of time at which the act occurred.

[4]      Having heard that evidence, I found that Mr Rameka was not guilty of the charge by virtue of insanity.   I then heard further evidence from two psychiatrists regarding the manner in which the Court should dispose of the case.  It must do so by making orders under either s 24 or s 25 of the Act.

[5]      I have reached a clear view, and that is that Mr Rameka must be detained as a special patient under the Mental Health (Compulsory Assessment and Treatment) Act  1992.    For  that  reason  I  make  an  order  under  s  24(2)(a)  of  the  Criminal Procedure (Mentally Impaired Persons) Act that he be detained in a hospital as a special patient under the Mental Health (Compulsory Assessment and Treatment) Act.  I now give my reasons for these conclusions.

Did Mr Rameka commit the act that gave rise to the charge?

[6]      The first issue is whether Mr Rameka committed the act that gives rise to the charge of murder.  There really can be no doubt regarding that issue.  The brief facts are that Mr Rameka was the only person present in the room with the deceased.  He emerged from the room in a state of some distress.  When members of the family went into the room they found Mr Finch lying on a bed, partially covered by a blanket but surrounded by a pool of blood.  He had obvious injuries to his head.  A

blood stained axe was found nearby.  Mr Rameka’s clothing was found to be stained with blood.

[7]      Mr Rameka later made statements to police officers that suggested that he had done something terribly wrong.  He has frankly admitted to both psychiatrists who have given evidence in this proceeding that he remembers aspects of an incident that led to him striking Mr Finch with an object.  When all of those factors are put together, there is really no contest that Mr Rameka caused Mr Finch’s death by striking him a significant blow on the head with an axe.  The blow caused injuries that were unsurvivable.

Was Mr Rameka insane when he caused Mr Finch’s death?

[8]      The next issue is whether, at the time that he caused Mr Finch’s death, Mr Rameka was insane within the meaning of s 23 of the Crimes Act 1961.  This section provides as follows:

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 when labouring under natural imbecility or disease of the mind to such an extent as to render him 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 did or omitted the act, and insane delusions, though only partial, may be evidence that the offender was, at the time when he did or omitted the act, in such a condition of mind as to render him irresponsible for the act or omission.

…

[9]      There  is  a  significant  body  of  evidence  showing  that  Mr  Rameka  was mentally disturbed for a substantial period leading up to the incident on 15 April

2009 and also after it occurred.  His mental difficulties go back to childhood when he was diagnosed with attention deficit hyperactivity disorder (“ADHD”).   Although treatment by way of medication was recommended at that time, his mother elected to

treat his condition in the way that she thought appropriate and in accordance with her own views of how it could best be dealt with.

[10]     Mr Rameka had a relatively unremarkable life up until 2007/2008.  He has, however, been unable to hold down jobs for any period of time.  In addition, he has had some trouble with relationships.  It appears he has never been in a relationship of any significance with a woman and this was clearly a matter that troubled him.

[11]     In the latter part of 2008, Mr Rameka sought further help.   This led to a formal diagnosis that he was suffering from ADHD as an adult.   As a result, he commenced taking medication.

[12]     In 2007 and 2008, Mr Rameka developed interests in several issues.   In particular, he became extremely interested in his genealogy and the issue of who he was and where he came from.  He sought advice and information about this topic from many quarters, including his own family.   He also became interested in kingitanga  (the  Maori  king  movement).    These  interests  developed  alongside  a steady consumption of cannabis, an activity that he had been engaged in since his teenage years.  It is clear that by 2009 he was smoking cannabis on a regular basis.

[13]     In the months leading up to April 2009 matters took a turn for the worse.  Mr Rameka began hearing voices.   These were sometimes friendly and positive.   On other occasions, however, they were extremely negative and threatening.  The onset of this condition appears to have worsened in the weeks leading up to 15 April 2009. During this period he moved to Kawhia to be with a relative whom he believed to be a tohunga, or spiritual healer.   Whilst there Mr Rameka appears to have suffered from delusions and possibly hallucinations.

[14]     He believed at one stage that a photograph or painting on the wall was talking to him and demanding to be taken off the wall.  He says that he had determined to act on this impulse by removing the photograph and burying it in the garden.   A member of his family intervened, however, and prevented him from doing so.

[15]     On April 15, 2009 he journeyed by car to Auckland.   He suffered from delusions and thought disturbance throughout the entire journey.   At one stage he stopped near Taupiri and went to carry out a form of ceremony or ritual in the Waikato River.  Whilst approaching the river, however, he saw a log in his way that he took to be a taniwha or some form of monster.   For that reason he was not prepared to go further towards the river.  He was convinced during this car journey that the cars around him were following him and that they had an interest in his movements.

[16]     When he got to Auckland he acted in a manner that appeared strange to those who were present at his mother’s address.  He shook hands with everybody there and then had a hot bath.   He told psychiatrists later that he recalled scrubbing himself hard in the bath and that when he got out his physical appearance had changed, causing him to remark upon how powerful he had looked.   He then went into the living  room  of  his  mother’s  address,  where  he  smoked  some  cannabis  to  calm himself down.  During this period he was hearing voices.  The voices were urging him to “go ahead and do it” meaning, do something.  He says that by this stage he had developed the view that he had spiritual powers.  He also believed that he was the “chosen one” who had been sent to “kill evil”.

[17]     He told one of the psychiatrists that, whilst in the living room, he recalls becoming conscious of the fact that he was standing near his step-father, Mr Finch. His step-father was calling out to him in a distressed voice and asking what he was doing.  He then has some recollection of having an object in his hands and then a recollection later that his step-father was lying on the bed motionless.

[18]     He told the psychiatrist that he believed that he could bring Mr Finch back to life by praying and that he needed to go outside and pray.  He then went outside and lay on the ground.  This is where he was found by members of the family and, later, by police and ambulance staff.

[19]     Evidence from the police officers who spoke to Mr Rameka on 15 April and shortly thereafter demonstrates that he was in a highly disturbed state.  One moment be would be rational and calm and the other he would be jabbering words that

appeared to make no sense.  He also appeared to be reacting to invisible stimuli and objects.  Ambulance staff who took him to hospital that day make similar comments.

[20]     After being arrested, Mr Rameka was the subject of mental health care whilst in  prison.    The  reports  produced  during  that  period  make  it  clear  that  he  was suffering from significant mental disturbances.  He was hallucinating and suffering from delusions, and reacting and talking to invisible persons or objects.  This led to him being placed on medication in order to treat what the psychiatrists who were attending him at that time believe was an acute form of psychosis.

[21]     He was subsequently moved to the Mason Clinic, where on 8 June 2009 he was initially placed in the Kauri Unit, which is designed for persons suffering from acute mental instability.  He remained under treatment there until 8 October 2009, when he was moved to the Totara Unit.  It appears that the treatment that he received in the Kauri and Totara units had its desired effect, because by early October 2009

Mr Rameka reported that he had stopped hearing the voices.   Since that time his condition has improved markedly.   The psychiatrists say that he now understands that the events that occurred on 15 April 2009 were the result of a mental disease from which he suffers.  He remains on medication to this day, and it is likely that that will be the case for the rest of his life.

[22]     Two psychiatrists, Dr Tapsell for the defence and Dr Mellsop for the Crown, have had access to all of the material relevant to the charge that Mr Rameka faces. They have also conducted lengthy interviews of both Mr Rameka and his family and have read the reports that were produced in relation to Mr Rameka whilst he was in prison  and  in  the  Mason  Clinic.    They  have  also  spoken  to  psychiatrists  and clinicians who treated Mr Rameka whilst he was on remand.  They are therefore well placed to comment on his condition both during the period leading up to 15 April

2009 and in the months that followed.

[23]     Both   psychiatrists   have   concluded   that   Mr   Rameka   suffers   from schizophrenia.  They believe that his condition is probably complicated by cannabis abuse.  They are of the view that he was acutely psychotic at the time of the alleged offending and that for some months prior to that date he had been exhibiting most, if

not all, of the hallmarks of schizophrenia.  Schizophrenia is now well recognised as a disease of the mind in terms of s 23 of the Crimes Act.  I am left in no doubt that he was suffering from that disease as at 15 April 2009.

[24]     The issue then becomes whether the schizophrenia was such that Mr Rameka was incapable of knowing the nature and quality of the act that he perpetrated on Mr Finch, or whether it left him incapable of recognising whether that act was morally wrong having regard to commonly accepted standards of right and wrong.

[25]     There is some evidence that he knew of the nature and quality of his act, because  he  told  at  least  one  of  the  psychiatrists  that  he  was  responding  to exhortations of the voices that he heard that he should act and “do something”.  He acted in a way that he seems to have believed was designed to stamp out evil.  For this reason it is possible that he did understand that he was striking a blow and that the blow was designed to injure or kill the object being struck, namely Mr Finch.

[26]     There is, however, a real issue as to whether or not be believed that that act was  morally  wrong,  having  regard  to  commonly  accepted  notions  of  right  and wrong.  I take the view that it is highly probable that he did not know that his act was morally wrong having regard to those notions.  In reaching that conclusion I have regard to the events that led up to the incident on 15 April 2009, together with the evidence of the two psychiatrists.   They are of the view that it is very likely that, when  Mr  Rameka killed Mr  Finch,  he was  incapable of  understanding that  his actions were morally wrong.

[27]     For these reasons I was satisfied on the basis of the evidence presented today that Mr Rameka was insane in terms of s 23 of the Crimes Act 1961.  I record also that the prosecution has formally agreed that that is the only reasonable verdict in the circumstances of the present case.  For that reason I was left with no choice under s 20(2)(b) of the Criminal Procedure (Mentally Impaired Persons) Act but to record a finding of not guilty on account of insanity.

What orders should the Court make?

[28]     The next issue is the nature of the orders that the Court should now make. There really are only two possible alternatives.  The first is an order under s 24(2)(a) of the Criminal Procedure (Mentally Impaired Persons) Act which provides:

(2)The orders referred to in subsection (1) are that the defendant be detained—

(a)     in  a  hospital  as  a  special  patient  under  the  Mental  Health

(Compulsory Assessment and Treatment) Act 1992; or

...

[29]     The other alternative is an order under s 25(1)(a) of the Act, which provides

25Alternative decisions in respect of defendant unfit to stand trial or insane

(1)       If, after considering the matters specified in section 24(1)(a) and (b) concerning a defendant found unfit to stand trial or acquitted on account of his or her insanity, the court is not satisfied that an order under section 24(2) is necessary, the court must deal with the defendant –

(a)     by ordering that the defendant be treated as a patient under the

Mental Health (Compulsory Assessment and Treatment) Act

1992; or

…

[30]     The choice then is between detention as a special patient under the Mental Health (Compulsory Assessment and Treatment) Act or treatment as a patient under the Mental Health (Compulsory Assessment and Treatment) Act 1992.

[31]     In order to assist me in determining this question, I have had the benefit of the evidence of the two psychiatrists who gave evidence in relation to the issue of insanity.   Both of those witnesses were firm in their view that the only realistic alternative is an order under s 24(2)(a).  Both considered that the circumstances of this case were such that Mr Rameka should be detained in a hospital as a special patient rather than as a patient under the 1992 Act.

[32]     Doctor Tapsell gave four reasons for this conclusion.  First, he pointed out that the incident that had given rise to the charge was extremely serious.  It led to the

death of an innocent human being.  Secondly, he observed that Mr Rameka is one of a comparatively small group of persons who suffer from schizophrenia and who act out their symptoms.  He told me that not all sufferers of schizophrenia go such far as to act out their symptoms.  The fact that Mr Rameka has done so in the past, and with such severe consequences, means that there is a real risk that he will repeat that conduct if he becomes unwell in the future.   It also means that a longer period of therapy will be required before it will be safe for him to return to the community on an unsupervised basis.

[33]     Thirdly, Dr Tapsell considered that there is still some ambivalence on the part of Mr Rameka in relation to his insight into the incident that has given rise to the charge.   He draws my attention to the fact that Mr Rameka now accepts that he committed the act that led to Mr Finch’s death whilst he was mentally unwell.   It appears, however, that he also clings to the notion that his actions may, in part at least, have been attributable to some form of curse to which he was subject at the time of that incident.  Dr Tapsell is also concerned that this ambivalence appears to be shared to some degree by Mr Rameka’s wider family as well.

[34]     The concern that this raises is that Mr Rameka and his family may not fully appreciate that it is highly likely that Mr Rameka’s mental illness was the sole cause of the actions that led to Mr Finch’s death.  Until they accept that that is the case, there  remains  the  risk  that  Mr  Rameka  may  be  tempted  to  take  himself  off medication and that he may become unwell again.   This means that therapeutic processes are likely to take significantly longer than would otherwise be the case. They are also likely to require the involvement of Mr Rameka’s wider family.

[35]     Finally, Dr Tapsell pointed out that, if Mr Rameka is detained as a special patient, his clinicians will be able to have a significant degree of involvement in all levels of decision-making regarding his future treatment.  In addition, all aspects of decision-making will be subject to significant accountability requirements that may not be present in the event that the other option is chosen.

[36]     In particular, Dr Tapsell pointed out that if Mr Rameka is treated as a patient under the Intellectual Disability (Compulsory Care and Rehabilitation) Act, he will

be released into the community at the end of that treatment, and that no further conditions will be imposed upon him.   This means that there can be no practical oversight once he is released into the community.

[37]     That will not be the case in the event that he is detained as a special patient. If that step is taken, Mr Rameka will retain the status of a special patient for some considerable time, even after he is allowed to resume living in the community.  For this reason his treating clinicians will be able to have direct, and in fact decisive, input into his place of residence and the treatment to which he will continue to be subject.

[38]     Doctor Mellsop, the psychiatrist called for the Crown, endorsed Dr Tapsell’s views.  He said that he had a clear view that an order under s 24(2)(a) was required. In addition to the reasons advanced by Dr Tapsell, Dr Mellsop said that he believed that there was a distinctly different philosophy and approach taken by those who treat patients under s 24(2)(b) to those espoused by clinicians who administer the treatment of a special patient under s 24(2)(a).   He believed that the only realistic way  in  which  the  risk  that  Mr  Rameka  poses  in  the  future  can  adequately  be managed is by an order under s 24(2)(a).

[39]     The evidence of the psychiatrists is compelling.  It conforms, in any event, with commonsense.  It is clear that, in order to remain well, Mr Rameka will need to be  subject  to  close  supervision  for  some  considerable  time  in  the  future.    An important part of his therapy will be the continued taking of medication at a prescribed level and at prescribed times.  The risk that he poses to the community is such that he cannot be released unless there is significant control over how that occurs and what steps are taken to ensure that he continues to take his medication.

[40]     For these reasons, like the psychiatrists, I reached the clear view that only one alternative is realistically available.  I therefore make an order under s 24(2)(a) of the Criminal Procedure (Mentally Impaired Persons) Act that Mr Rameka be detained in a hospital as a special patient under the Mental Health (Compulsory Assessment and Treatment) Act.

Lang J