R v Stone - [2018] NZHC 1340

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGĀREI TERENGA PARĀOA ROHE

CRI-2010-288-000001

[2018] NZHC 1340

THE QUEEN

v

BERNADETTE MATEKINO STONE

Hearing: 8 June 2018

Counsel:

MB Smith for Crown

LJ Postlewaight for Defendant

Judgment:

8 June 2018

ORAL JUDGMENT OF DOWNS J

Solicitors/Counsel:
Crown Solicitor, Whangarei. LJ Postlewaight, Whangarei.

R v STONE [2018] NZHC 1340 [8 June 2018]

The case

[1] These remarks will be brief because Ms Bernadette Stone is watching through closed circuit television and her attention span is short.

[2] On 31 December 2009, Ms Stone allegedly murdered her older sister, Petina, by stabbing her once to the chest with a knife. Their mother, Ms Watene, witnessed the event. Ms Stone was then only 14; Petina 30. The District Court concluded Ms Stone was unfit to stand trial.1 On 21 December 2010, that Court ordered Ms Stone be detained as a special care recipient.2

[3] In 2016 the Attorney-General received advice Ms Stone was no longer unfit to be tried. He directed she again be placed before the Courts. On 12 April of this year, I concluded Ms Stone was still unfit to be tried.3 Which means the same issue arises as earlier: what happens to Ms Stone? She is now 23, albeit in many ways, more like a child.

[4] The Crown contends Ms Stone should again become a special care recipient, which would mean she would continue to live in a secure facility until her status changes.4 Mr Smith submits such an order is necessary because of the risk of harm Ms Stone poses primarily to others. Ms Postlewaight contends Ms Stone should be treated as a care recipient, albeit in a secure facility.5 Something more about the differences between these outcomes shortly.

Principle

[5] My decision must be made with reference to totality of circumstance and expert reports.6 A special care recipient order must be necessary in the interests of the public; person; or class of person affected by the decision. A higher Court has emphasised the test is a high one; mere expediency is insufficient.7

1      R v BMS DC Whangarei CRI-2010-288-000001, 29 September 2010.
2      R v BMS YC Whangarei CRI-2010-288-000001, 21 December 2010.
3      R v Stone [2018] NZHC 665.
4      Criminal Procedure (Mentally Impaired Persons) Act 2003, s 24(2)(b).
5      Sections 25(1)(b) and 26(2).
6      Section 24(1).
7      M v R [2012] NZCA 142, (2012) 28 FRNZ 774.

The experts

[6] Three experts have examined Ms Stone. I am grateful to them for their comprehensive reports:

(a)Ms Michelle Coutinho, a senior clinical psychologist at the Mason Clinic.

(b)Dr Valerie McGinn, a clinical neuropsychologist.

(c)Dr Andrew Immelman, a consultant psychiatrist.

[7] The experts agree Ms Stone suffers foetal alcohol spectrum disorder, and an intellectual disability. The latter is mild, stable, and unlikely to ever improve. Ms Stone has a host of difficulties including poor executive functioning. Executive functions are a set of thought processes that help control behaviour. Ms Stone…

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 Stone

Details

AGLC: R v Stone [2018] NZHC 1340
Case: [2018] NZHC 1340
Decision Date: 8 June 2018

CaseChat Overview and Summary

In the High Court of New Zealand, Judge Downs delivered an oral judgment on 8 June 2018, addressing the case of Bernadette Matekino Stone, who was accused of murdering her sister, Petina, in 2009. The District Court had previously determined that Stone was unfit to stand trial, and she was detained as a special care recipient. However, in 2016, the Attorney-General was advised that Stone was now fit to stand trial. The High Court was required to determine whether Stone should be re-designated as a special care recipient or a care recipient, both of which would involve secure detention.

The legal issue before the court was whether a special care recipient order was necessary under the Criminal Procedure (Mentally Impaired Persons) Act 2003. The court needed to consider the totality of circumstances and expert reports, and whether such an order was necessary in the interests of the public, the person, or a class of persons affected by the decision. The court had to apply a high threshold for such an order, with mere expediency not being sufficient.

The experts who examined Stone agreed that she suffered from foetal alcohol spectrum disorder and an intellectual disability. They also noted that she had a history of conduct disorder, violence, self-harm, and multiple assaults on staff. However, the experts disagreed on whether Stone should be a special care recipient or a care recipient. While Ms. Coutinho, a senior clinical psychologist, considered a special care recipient order necessary due to the nature of the offence, history of violence, and high risk of harm to others, Drs. McGinn and Immelman believed that care recipient status in a secure facility would be sufficient to manage the risk posed by Stone.

Judge Downs concluded that a special care recipient order was not necessary, given the totality of circumstances and the balance of expert opinion. Downs J found that the decline in the frequency and severity of violence and self-harm over time suggested that with further intervention, Stone may continue to reduce her risk of offending. Additionally, Downs J believed that secure care in the context of care recipient status would provide sufficient public protection, and that a care recipient order would be a more proportionate means of achieving this.

As a result, Bernadette Matekino Stone was made a care recipient under the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003, and was to be detained in a secure facility. These orders would last three years and would likely be extended by the Family Court. The charge of murder was stayed, and the Registrar was to provide Stone's care coordinator with a copy of this judgment.

Orders