R v T

[2024] NZHC 3557

NOTE: ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF DEFENDANT

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE

CRI-2023-088-1017

[2024] NZHC 3557

THE KING

v

T

Hearing:

26 November 2024

Appearances:

B M O’Connor for Crown

M J Dyhrberg KC for defendant

Judgment:

26 November 2024

JUDGMENT OF JOHNSTONE J

(finding of insanity, disposition and name suppression)

Solicitors:

MWIS, Whangārei

R v T [2024] NZHC 3557 [26 November 2024]

[1]                 The defendant, Ms T, is charged with the murders of her two pre-school children. At around 6.30 in the morning of 15 May 2023, Ms T dialled 111 seeking the police, and told them that her children were dead. Once the police had arrived at the place in Ruakākā where Ms T had been living with her children, and had found them, Ms T claimed she had killed them for their own protection.

[2]                 Ms T’s trial on these charges is  scheduled to  commence in  this  Court on  10 March 2025. On behalf of Ms T, Ms Dyhrberg KC has indicated her intention to raise the defence of insanity. The Crown agrees, in terms of s 20(2)(b) of the Criminal Procedure (Mentally Impaired Persons) Act 2003, that “the only reasonable verdict is a finding of act proven but not criminally responsible on account of insanity”.

[3]                 The expert evidence that is available to support the parties’ joint position is comprised of:

(a)a report dated 20 February 2024, commissioned on behalf of Ms T, and written by consultant psychiatrist Dr Russell Wyness; and

(b)a report dated 24 July 2024, commissioned by the Crown, and written by consultant psychiatrist Dr Erik Monasterio.

[4]Both reports are comprehensive.

[5]                 Dr Wyness reports upon Ms T’s account of the circumstances she told him she was faced with leading up to and on the occasion of the children’s death. He reports upon Ms T’s response: to her circumstances having been detained, and to staff where she was being held. And he reports upon Ms T’s response to the commencement of a course of medication in June 2023, and thereafter.

[6]Dr Wyness offers his opinions that:

(a)Ms T was suffering from a psychotic state, most likely as a result of having schizophrenia, when she killed her children.

(b)The evidence suggests she knew what she was doing.

(c)And Ms T made the decision to end her children’s lives on the basis of a delusional belief that this would avoid them being abused and tortured.

[7]                 Dr Monasterio also reports fully upon Ms T’s accounts of her circumstances at relevant times, and upon her response to detention and medication.

[8]Dr Monasterio offers his opinions that:

(a)Ms T’s symptoms of psychosis and diagnosis of schizophrenia are consistent with her, in terms of s 23 of the Crimes Act 1961, “labouring under a disease of the mind”.

(b)The evidence indicates that it is in the context of escalating symptoms of psychosis, and thus her belief that her children had been, and her fear that her children would continue to be, harmed, that her children were killed.

(c)And, on the balance of probabilities, Ms T lacked capacity at the time to understand and appreciate the moral wrongfulness of her actions.

[9]                 On the basis of this expert evidence, I am satisfied that Ms T was insane within the meaning of s 23 of the Crimes Act at the time she killed her children. I therefore make a finding of “act proven but not criminally responsible on account of insanity” in terms of s 20(1) of the Criminal Procedure (Mentally Impaired Persons) Act.

[10]              Ms T having been acquitted on account of her insanity, the Court must, when it has sufficient information on her condition:

(a)consider all the circumstances of the case;

(b)consider the evidence of one or more health assessors as to whether Ms T’s  detention in accordance with one of the orders specified in     s 24(2) of the Criminal Procedure (Mentally Impaired Persons) Act is necessary; and

(c)make one of those orders if it is satisfied that the making of the order is necessary in the interests of the public or any person or class of person who may be affected by the Court’s decision.1

[11]              In this case, the Court has received a report dated 5 November 2024, written by Ms T’s responsible clinician, Dr Krishna Pillai. Dr Pillai is a forensic psychiatrist, and a Clinical Director in  the  Regional  Forensic  Psychiatry  Service  at  the  Mason Clinic. Dr Pillai’s report provides sufficient information on Ms T’s condition to enable the Court to determine whether an order under s 24(2) is necessary.2

[12]              Dr Pillai observes that Ms T’s mental health has improved while she has been detained pending her trial, but that her recovery journey has been, and will continue to be, prolonged and complex. Dr Pillai notes that Ms T’s current circumstances do not meet the definition of “mental disorder” set out in s 2 of the Mental Health (Compulsory Assessment and Treatment) Act 1992, and that an order under s 25(1)(a) of the Criminal Procedure (Mentally Impaired Persons) Act would therefore be inappropriate. On that basis, Dr Pillai’s opinion is that an order under s 24(2)(a) of the Criminal Procedure (Mentally Impaired Persons) Act is appropriate.

[13]              I agree. In my view, an order under s 24(2)(a) is necessary in the interests of both the public and Ms T herself.

[14]              Accordingly, I order that Ms T be detained in a hospital as a special patient under the Mental Health (Compulsory Assessment and Treatment) Act.

[15]              The only outstanding matter relates to the extent to which details of the case may be reported. Currently, an interim order made in the District Court under s 200(1) of the Criminal Procedure Act 2011 prohibits the publication of Ms T’s name and any identifying details such as the names and identifying details of her deceased children and whānau.

1      Criminal Procedure (Mentally Impaired Persons) Act 2003, s 24(1).

2      Section 24 subs (1) and (3).

[16]              On behalf of Ms T, Ms Dyhrberg seeks that a similar order be made, but permanently, on the basis that certain thresholds set out in s 200(2) have been met, because publication would be likely to: cause Ms T extreme hardship, by hindering her recovery; or endanger her safety.

[17]              For the Crown, Ms O’Connor submits that those thresholds have not been met, but that an alternative threshold set out in s 200(2) has been met: the likelihood that publication would cause undue hardship for whānau of the deceased children, who are (indirectly) victims of Ms T’s conduct.

[18]              I accept the thrust of the Crown’s submissions. Ms T has achieved a lengthy period of remission following treatment to address symptoms of psychotic delusion and hallucination. In doing so, she has been confronted with, and appears to be working through the process of coming to terms with, the fact that she killed her children without any rational basis for doing so. Further, Ms T is now the subject of an order that she be held as a special patient. The ongoing challenge of recovery from Ms T’s mental health difficulties is one that she will face in a secure environment where threats to her wellbeing are able to be monitored and addressed. In my view, the risks she continues to face stem largely from her own conduct, rather than publication of details of her conduct.

[19]              On the other hand, young members of her immediate whānau do not yet know why their relatives died. Publication of Ms T’s identity would force them to confront her conduct despite their young age, and it may lead to them being subjected to the possibility of unjustified criticism of whānau, including of Ms T, for the way in which the children came to be harmed. Those matters, I accept, involve a risk of undue hardship to those young whānau, who are “victims” in terms of s 200 because of the extended definition set out in s 4 of the Victims’ Rights Act 2002.3

[20]              For those last reasons, I make an order forbidding the publication of any details identifying Ms T in connection with the charges the subject of this proceeding. This

3      Criminal Procedure Act 2011, s 5 meaning of “victim”.

order extends to any details identifying members of her deceased children’s whānau. It does not extend to details set out in this judgment.

Johnstone J