R v T
[2020] NZHC 1323
•12 June 2020
ORDER PROHIBITING PUBLICATION OF NAME(S), ADDRESS(ES), OCCUPATION(S) OR IDENTIFYING PARTICULARS OF
APPELLANT(S)/RESPONDENT(S)/ACCUSED/DEFENDANT(S) PURSUANT TO S 200 CRIMINAL PROCEDURE ACT 2011. SEE
IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY
I TE KŌTI MATUA O AOTEAROA NGĀMOTU ROHE
CRI-2019-043-001421
[2020] NZHC 1323
THE QUEEN v
T
Hearing: 12 June 2020 Counsel:
C E Clarke for the Crown
P Keegan and S Hunt for Ms T
Judgment:
12 June 2020
JUDGMENT OF DOOGUE J
Introduction
[1]Ms T faces one charge of murder.1
[2] It has been evident from the outset that there would likely be an issue about whether or not Ms T was fit to plead to the charge and stand trial.
1 Crimes Act 1961, ss 160(2)(a), 167(a), 167(b) and 172; maximum penalty life imprisonment.
R v T [2020] NZHC 1323 [12 June 2020]
[3] The process for determining that issue is regulated by the Criminal Procedure (Mentally Impaired Persons) Act 2003 (the Act), and it first involves an inquiry under s 8A. In the event that Ms T is found unfit to stand trial, the Court must then proceed to conduct a s 10 inquiry, determining whether or not the Court is satisfied on the balance of probabilities that Ms T caused the act that forms the basis of the charge of murder.
[4] This judgement records my determination of the issues under that process, with reasons.
Section 8A inquiry: is Ms T unfit to stand trial?
[5] Section 7 of the Act provides that a court may make a finding that a defendant is unfit to stand trial at any stage after the commencement of the proceedings and until all the evidence is concluded. A determination of unfitness is governed by s 8A , which relevantly provides:
8A Determining if defendant unfit to stand trial
(1)The court must receive the evidence of 2 health assessors as to whether the defendant is mentally impaired.
(2)If the court is satisfied on the evidence given under subsection (1) that the defendant is mentally impaired, the court must record a finding to that effect and—
(a)give each party an opportunity to be heard and to present evidence as to whether the defendant is unfit to stand trial; and
(b)find whether or not the defendant is unfit to stand trial; and
(c)record the finding made under paragraph (b).
(3)The standard of proof required for a finding under subsection (2) is the balance of probabilities.
(4)If the court records a finding under subsection (2) that the defendant is fit to stand trial, the court must continue the proceedings.
(5)If the court records a finding under subsection (2) that the defendant is unfit to stand trial, the court must inquire into the defendant’s involvement in the offence under section 10, 11, or 12, as the case requires.
[6] In Ms T’s case, the Court has received reports from two consultant psychiatrists, Dr Shailesh Kumar and Dr Oliver Hansby.
[7] Dr Kumar most recently saw Ms T once in April 2020, and Dr Hansby saw her twice in April 2020. Both have filed extensive reports concerning her mental state. Both doctors conclude that Ms T suffers from a mental impairment due to psychosis, in the context of underlying treatment-resistant schizophrenia. This psychosis continues to be typified by disorganised thinking, persecutory delusions and hallucinatory experiences, despite months of clozapine therapy.
[8] It is these experts’ evidence that this mental impairment renders her unable to competently plead to the charge and renders Ms T incapable of adequately instructing counsel for the purposes of conducting a defence at trial.
[9] Dr Hansby appeared for examination on his reports. Ms Clarke for the Crown comprehensively questioned Dr Hansby. In turn, his evidence was comprehensive, cogent and compelling. He confirmed his robustly held view that Ms T is incapable of pleading to the charge, adequately instructing counsel and otherwise participating effectively in her trial. She would not be able to engage in any active sense in any court setting.
[10] There was no effective challenge to the evidence of the experts. In my view their evidence establishes that Ms T is, on the balance of the probabilities, unfit to stand trial.
Section 10 inquiry: is the evidence sufficient to establish, on the balance of probabilities, that Ms T caused the act that forms the basis of the charge of murder?
[11] Given my finding that Ms T is unfit to plead or stand trial, it is necessary to undertake the second stage of the assessment which is governed by s 10 of the Act. In the event of a finding of unfitness:
10 Inquiry before trial into defendant’s involvement in the offence
…
(2) The court must decide whether the court is satisfied, on the balance of probabilities, that the evidence against the defendant is sufficient to establish that the defendant caused the act or omission that forms the basis of the offence with which the defendant is charged.
[12]For the purposes of that inquiry, s 10(3) provides that the Court may consider:
(a)any formal statements that have been filed under section 85 of the Criminal Procedure Act 2011:
(b)any oral evidence that has been taken in accordance with an order made under section 92 of the Criminal Procedure Act 2011:
(c)any other evidence that is submitted by the prosecutor or defendant.
[13] The Crown has filed (under s 85) numerous formal statements and evidence relating to the police inquiries.
[14] The evidence is that Ms T is the daughter of the victim. Ms T has suffered from her mental impairment for some time and, according to a number of the formal statements, had often been abusive to her mother over the years as a result of her persecutory delusions involving her mother. As a result, Ms T’s mother was fearful of her.
[15] At about 4.25 pm on 13 August 2019, Ms T attended at the New Plymouth Police Station. Ms T asked Constable Craig Bailey (who was working as the late shift Watchhouse Keeper) if the Police would check on her mother at her mother’s home address. Ms T explained to Constable Bailey that she and the victim had argued, and she just wanted the police to see if her mother was okay.
[16] Sergeant Shane Hurliman was dispatched to check the victim’s address, and when he got there nobody responded when he knocked on the front door. He then rang Ms T at 5.19 pm. The conversation is detailed in Sergeant Hurliman’s formal witness statement as follows:
…
9.I repeated my name and that I was a Police Officer when she suddenly asked “Is she dead?”
10.I replied “why would she be dead?”
11.I then told [Ms T] that I was aware there was an argument between her and her mother earlier in the afternoon and asked her “did that argument get physical?”
12.[Ms T] replied “Yes”
[17] Ms T instructed Sergeant Hurliman to enter the house through the rear of the property. He went to the rear of the property and observed that the top pane of the
glass door to the laundry had been smashed above the door handle. He entered the house and located the victim, deceased and lying on her back on the kitchen floor.
[18] At 5.12 pm Ms T sent a text message to a registered nurse then working as a key worker for Ms T under the auspices of her employer Tui Ora, a Māori health and social services provider that assists and supports clients with mental and primary health services. The conversation reads as follows:
Ms T: Sharon i hurt mum sec after sec day after day constantly possessing me anthony convinced me the only way out was to allow one of them to rest at peace.
I need help.
Ms Robertson: Is your mum ok. Are you ok?
Ms T: I think shes died the police trying to get in Ms Robertson: Can you let them. I’ve called them also.
Ms T: Ive told them the back door is open nd waitin to get picked up for the police, can i get help
Ms Robertson: I’ll call the crisis team.
Ms T: Ok
[19] Ms T’s daughter (who was in fact raised by the victim, her grandmother) said she had received messages from Ms T saying she wanted to put the victim out of her misery and that she wanted to kill the victim.
[20] A post-mortem examination established that the victim’s cause of death was manual neck compression. There was evidence of significant and sustained pressure to the neck; and an absence of other significant injury, natural disease, or toxicological or biochemical cause for death.
[21] When she first attended at the Police Station, Constable Bailey noted Ms T had several scratches on her cheek and chin, consistent with having been in a physical altercation. Ms T told Constable Bailey that the victim had scratched her during their argument that afternoon.
[22] The evidence I have summarised above is more than sufficient to satisfy me that, on the balance of probabilities, Ms T was responsible for the victim’s death.
Disposition
[23] I must now adjourn the matter for the hearing to determine whether it is necessary for Ms T to be detained in accordance with one of the orders specified in s 24(2) of the Act.
Orders
[24] Dr Hansby’s evidence given today shall be transcribed and provided to counsel, Dr Kumar and Dr Hansby himself.
[25] By consent, an interim name suppression order for the identity of Ms T and her family is granted, pending the disposition hearing.
[26]Dr Kumar and Dr Hansby shall file reports for the disposition hearing
within 30 days of today’s date.2
[27] Immediately following the filing of those two reports, counsel shall file a joint memorandum addressing:
(a)the extent and provision of victim impact statements for the disposition hearing and mode of delivery;
(b)the likely duration of the disposition hearing;
(c)the mode of appearance by Ms T; and
(d)any other matters considered necessary by counsel.
[28] Ms T is remanded pursuant to s 23(2)(b) of the Criminal Procedure (Mentally Impaired Persons) Act 2003 until 17 August 2020 for the disposition hearing.
2 Criminal Procedure (Mentally Impaired Persons) Act 2003, s 23(1).
Name suppression
[29] I make an interim order supressing Ms T’s name and that of her family under s 200(2)(a) of the Criminal Procedure Act 2011, as publication would be likely to cause extreme hardship to Ms T and her family. Such order is to be reviewed at the disposition hearing.
Doogue J
Solicitors:
Crown Solicitor, New Plymouth
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