R v Tamati - [2021] NZHC 1451

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CRI-2019-018-214

[2021] NZHC 1451

THE QUEEN

v

TRISTAN LEE TAMATI

Hearing: 11 June 2021

Counsel:

D R La Hood and A F Oliver for the Crown D J Taffs for Mr Tamati (by VMR)

Judgment:

18 June 2021

JUDGMENT OF PALMER J

Counsel/Solicitors
Crown Solicitor, Wellington D J Taffs, Barrister, Westport

R v TAMATI [2021] NZHC 1451 [18 June 2021]

Summary

[1] In 2020, Mr Tristan Tamati was convicted of rape and other sexual offending. In applying for his preventive detention, the Crown seeks orders that a health assessor, the Crown and the Court have access to four psychological reports from 2006 to 2010 about Mr Tamati from when he was in prison for previous sexual offending. Mr Tamati objects on the basis that he has medical privilege in his communications to the psychologist for the 2006 report. I consider he does not, on the basis of the content of the report and Mr Tamati’s signature of a consent form. I am satisfied that he would have believed the purpose of the interview was to assist the Parole Board to consider his suitability for parole and Corrections staff to manage his sentence. I do not consider he would have believed his communications were necessary to enable the psychologist to examine, treat, act for, or care for him, for drug dependency or any other condition or behaviour that may manifest itself in criminal conduct. That is what I would have to be satisfied of, for medical privilege to exist under s 59(2) of the Evidence Act 2006. I make the orders sought, subject to Corrections checking the status of other information in the reports.

What happened?

Convictions

[2] On 21 October 2020, after trial by jury in the Wellington District Court, Mr Tamati was found guilty and convicted of two offences of rape, two offences of unlawful sexual connection, indecently assaulting a young person, and supplying methamphetamine.

[3] The Court ordered standard pre-sentence reports from Corrections as well as reports for the purpose of considering preventive detention under s 88 of the Sentencing Act 2002. Section 88(3) provides “[t]o avoid doubt, a health assessor’s report under subsection (1)(b) may take into account any statement of the offender or any other person concerning any conduct of the offender, whether or not that conduct constitutes an offence and whether or not the offender has been charged with, or convicted of, an offence in respect of that conduct”.

[4] The matter was transferred to the Wellington High Court for consideration of preventive detention as a sentence. Mr Tamati has committed very serious sexual violence offences before.1 The Crown intends to pursue preventive detention, given Mr Tamati’s history. Three s 88 reports were prepared, on 21 January, 5 February and 10 February 2021, but the report writers advised that their opinions were limited by Mr Tamati’s refusal to engage with them and their inability to access psychological…

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.

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Details

Case: [2021] NZHC 1451
Decision Date: 18 June 2021

CaseChat Overview and Summary

The case of R v Tamati involves a dispute over the disclosure of four psychological reports prepared for the Parole Board between 2006 and 2010 regarding the convicted offender Tristan Lee Tamati. The Crown seeks orders for access to these reports to inform health assessments and sentencing considerations for Tamati, who has been convicted of serious sexual offences and is subject to preventive detention proceedings. Tamati opposes the release of the reports on the grounds that they are protected by medical privilege.

The central legal issues before the court were whether the psychological reports prepared for the Parole Board contain privileged communications and whether the privilege, if it exists, has been waived by Tamati. The court had to determine if Tamati believed the purpose of the psychological interviews was to enable the psychologist to examine, treat, or care for him, as required for medical privilege under the Evidence Act 2006.

The court found that Tamati did not have medical privilege in his communications to the psychologist for the 2006 report. It was satisfied that Tamati would have believed the purpose of the interview was to assist the Parole Board in considering his suitability for parole and Corrections staff to manage his sentence, rather than for his treatment. The court also noted that the consent form signed by Tamati indicated that information from the interview could be used for future reports to the courts, effectively waiving any potential privilege. The court ordered the release of the reports to the health assessors, the Crown, and the Court, subject to Corrections checking for any privileged information that may need to be redacted.

Orders