R v Tamati-Moka - [2017] NZHC 2037

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI-2017-019-1522 [2017] NZHC 2037

THE QUEEN

v

GENIE-LEE TAMATI-MOKA

Hearing: 24 August 2017

Counsel:

R G Douch for Crown
K Burroughs for Defendant

Judgment:

24 August 2017

JUDGMENT OF BREWER J

Solicitors/Counsel:
Almao Douch (Hamilton) for Crown
Kerry Burroughs (Hamilton) for Defendant

R v TAMATI-MOKA [2017] NZHC 2037 [24 August 2017]

Introduction

[1] Ms Tamati-Moka faces one charge of attempted murder and an alternative charge of wounding with intent to cause grievous bodily harm. She has, through her lawyer, indicated she intends to raise insanity as a defence. The Crown Solicitor agrees that the only reasonable verdict on the charges is one of not guilty on account of insanity. As a result, if I am satisfied, on the basis of expert evidence, that Ms Tamati-Moka was insane within the meaning of s 23 of the Crimes Act 1961 at the time of the commission of the offence, then I must find her not guilty on account
of her insanity.1

[2] The purpose of this hearing is for me to decide whether that is my finding. If it is, then I will have to consider the best mental health treatment option for Ms Tamati-Moka.2

Background

[3] I will start by looking, briefly, at the agreed factual background. Mr Douch, for the Crown, submits that I do not have to because there is no statutory requirement for me to be satisfied that Ms Tamati-Moka actually committed the offending with which she is charged. He submits that by raising the defence of insanity, Ms Tamati-Moka must be accepting at least some relevant responsibility.

[4] I have been referred to two cases where Judges of this Court took the view that before considering the issue of insanity they must be satisfied that the accused
person committed the acts charged.

1 Criminal Procedure (Mentally Impaired Persons) Act 2003 (the Act), s 20(2).
2 At the beginning of this hearing there was some confusion as to whether it had been properly determined that Ms Tamati-Moka is fit to stand trial. Mr Burroughs had filed a memorandum of counsel dated 22 August 2017 in which, having confirmed his agreement with the position adopted by the Crown Solicitor, he said that it was a matter for the Court pursuant to s 9 of the
Act to determine whether Ms Tamati-Moka is unfit to stand trial. I discussed this with
Mr Burroughs who realised that he had misapprehended the situation. He accepts that
Ms Tamati-Moka’s fitness to stand trial is addressed by Dr Kumar in his s 38 report of 21 March
2017 and that there is no basis for contesting fitness to stand trial, nor is there any point in doing so. Mr Burroughs does not pursue that issue and I am satisfied on the basis of all of the psychiatric reports that there is no issue of fitness.

[5] Justice Panckhurst in R v M said:3

… I note that s 9 of the Act, in the context…

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: [2017] NZHC 2037
Decision Date: 24 August 2017

CaseChat Overview and Summary

Genie-Lee Tamati-Moka was charged with attempted murder and an alternative charge of wounding with intent to cause grievous bodily harm. She intended to raise the defence of insanity. The court had to determine whether the defendant was, in fact, insane at the time of the offence. The court found that the defendant was not responsible for her actions due to her mental illness, and she was acquitted on the grounds of insanity.

The court considered the legal issues involved in the case, including the standard of proof required for a finding of insanity. The court noted that the prosecution did not need to prove beyond reasonable doubt that the defendant committed the offence, but only needed to establish a prima facie case. The court also considered the reports of expert witnesses, who diagnosed the defendant with schizophrenia and concluded that she was not aware that her actions were morally wrong.

The court found that the defendant was, in fact, insane at the time of the offence, and acquitted her on the grounds of insanity. The court also ordered that further inquiries be made to determine the most suitable method of dealing with the defendant under the Criminal Procedure (Mentally Impaired Persons) Act 2003. The court ordered that the defendant be remanded to the Henry Bennett Centre for further assessment and that a second opinion be obtained from a health assessor. The defendant was to be brought before the court again within 30 days for the court to order her disposition.

Orders