R v Tamati-Moka
[2017] NZHC 2037
•24 August 2017
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 DefendantJudgment:
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 March2017 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 of an inquiry into fitness to stand trial, has an express provision that the Court must consider, and conclude, that a defendant was responsible for the relevant act or omission. However, I consider that such a requirement is implicit and that I must be so satisfied because of the use of the words “at the time of the commission of the offence.” Those words, in my view, can only mean it is a prerequisite that the Judge considering the issue of insanity is satisfied that the accused person committed the acts which form the basis of the charge.
[6] The charge before Panckhurst J was also one of attempted murder of a baby. Having reviewed the evidence he had no doubt as to the actus reus – the physical element – of the offence and then concluded:
[15] … The nature and the seriousness of the injuries suffered by your daughter are consistent with the mental element of the offence and I am satisfied, indeed beyond reasonable doubt, that you did commit what would otherwise, but for your mental health, have been the offence with which you are charged.
[7] In R v Lam,4 Moore J, having set out the facts, gave his task as:
[40] There are three issues which must be addressed at this hearing. They are:
(a) whether I am satisfied, beyond reasonable doubt, that Mr Lam killed Ms Nguyen and that there is evidence from which the relevant mens rea can be drawn (assuming Mr Lam was sane at the time);
(b) whether I am satisfied, on the balance of probabilities, that
Mr Lam was insane at the time he killed Ms Nguyen; and
(c) if so, what orders should be made on the question of disposition.
[8] Justice Panckhurst adopted an approach similar to that which would be required if a Court was deciding whether a defendant is unfit to stand trial, although in the circumstances he went further and found proof beyond reasonable doubt. Justice Moore adopted the approach that a Court would take if the issue of insanity
were being decided at trial.
3 R v M [2014] NZHC 605 at [14].
4 R v Lam [2016] NZHC 563.
[9] Prior to the enactment of s 20, a finding of insanity could be made only at trial. Even if the prosecution accepted that a finding of insanity was the proper outcome, the evidence still had to be put before the Court and the fact-finder (often a jury) had to make the decision.
[10] The law was (and still is if insanity is contested) that the prosecution had to prove beyond reasonable doubt that the defendant committed the physical acts charged. It also had to bring evidence from which the Judge or the jury could properly infer that, assuming sanity, the necessary mental elements were present. At that point the onus shifted to the defendant to prove, on the balance of probabilities, that he or she was insane at the time of the offending. One of the reasons for this structure of proof is that, at trial, insanity need not be the sole defence.
[11] The genesis of s 20 is the realisation that this system caused unnecessary distress, and at times injustice, when insanity was not in issue. Juries sometimes convicted when they should have acquitted. It would be better in such cases to settle the issue pre-trial. The simple solution put forward was to allow a plea of “guilty but insane”, with a Judge deciding whether the plea should be available. The plea would be an acceptance of the legal elements of the offending but a denial of culpability on account of insanity. This solution was not accepted. It was unpalatable to many because the effect of insanity – an illness – is to take away culpability. So, it was thought the word “guilty” was inappropriate. As a result, the current s 20 exists. There is no plea. There is an indication of an intent to raise the defence at the trial. If the prosecution agrees that the defence must succeed then the Judge must find the defendant not guilty on account of insanity if he or she is satisfied that the defendant was insane at the time of the commission of the offence. In my view, in giving the indication for the purpose of s 20 the defendant is conceding that the charge or charges can be proved, but is contending that there is no culpability because of insanity.
[12] It follows that there is no level of proof of the elements of the offending that need be determined by a Judge who is considering the issue of insanity. That is, none beyond that which would arise on any occasion that an accused person offers a plea of guilty and the Judge wishes to be sure there is a proper basis to accept it.
[13] There are inherent vulnerabilities when mental health problems exist. Lawyers can be instructed to give indications despite the evidence. A self- represented defendant can have their own view of what constitutes responsibility for events. A Judge must be satisfied there is a proper background of evidence on which a finding of not guilty on account of insanity can be made.
[14] A Judge can be satisfied there is a proper background, in my view, if the evidence would withstand an application for discharge under s 147 of the Criminal Procedure Act 2011. If the evidence is sufficient that a reasonable Judge or jury, properly directed, could reasonably convict the defendant on the charges brought, then that is enough. That is the threshold which all prosecution cases must cross in order to be viable.
[15] In this case, the factual situation can be described briefly. On 10 January
2017, Ms Tamati-Moka was socialising at a Hamilton address with a friend and with the victim’s grandfather. The victim was a child then aged 18 months. She was in bed.
[16] At some stage, without any apparent motive, Ms Tamati-Moka went into the kitchen, armed herself with a knife and went down to the bedroom where the victim was asleep. She stabbed the victim four times to her back causing very serious injury. There were two further lacerations to the back.
[17] Ms Tamati-Moka then ran from the house and purposely ran in front of a car which was driving on a road. To the first police officer who attended what was reported as a car accident, Ms Tamati-Moka said that she wanted to die. She rambled and talked about hurting a baby. From that date, Ms Tamati-Moka has been receiving mental health treatment at the Henry Bennett Centre.
[18] There is no question that Ms Tamati-Moka stabbed the victim as I have described. I have an admission of facts by agreement pursuant to s 9 of the Evidence Act 2006 by which Ms Tamati-Moka “admits that she inflicted the stab wounds to the back of the victim … referred to and described in the formal written statement of Dr Catherine Graham, Paediatric Registrar, filed herein using a knife as a weapon”.
[19] I am also invited by both counsel to use my discretion under s 9(1) of the Evidence Act 2006 to admit the evidence of the witnesses for whom formal written statements have been filed. I have considered the formal written statements filed by the Crown. I will admit the evidence of the witnesses in their written form, as I am invited to do. I am satisfied that there is evidence from which, assuming Ms Tamati- Moka was sane at the time, an inference of the relevant intention to kill required for the charge of attempted murder or the intention to cause grievous bodily harm required for the alternative charge could properly be drawn.
[20] It follows that I am satisfied that there is a proper evidential basis or evidential background for me to consider the issue of insanity.
Insanity
[21] I now turn to the issue of insanity at the time of the offending. The relevant provisions of s 23 of the Crimes Act 1961 are:
(1) Every one shall be presumed to be sane at the time of doing or omitting any act until the contrary is proved.
(2) No person shall be convicted of an offence by reason of an act done or omitted by him or her when labouring under natural imbecility or disease of the mind to such an extent as to render him or her incapable—
(a) of understanding the nature and quality of the act or omission; or
(b) of knowing that the act or omission was morally wrong, having regard to the commonly accepted standards of right and wrong.
(3) Insanity before or after the time when he or she did or omitted the act, and insane delusions, though only partial, may be evidence that the offender was, at the time when he or she did or omitted the act, in such a condition of mind as to render him or her irresponsible for the act or omission.
[22] Counsel for the Crown and counsel for Ms Tamati-Moka in the admission of facts document invite me to exercise my discretion to admit the evidence of Dr Dean and Dr Majeed in the form of their reports dated 5 April 2017 and 29 June 2017 respectively without formal proof. I will do so.
Dr Dean’s report
[23] Dr Dean is an experienced and respected consultant psychiatrist. His report of 5 April 2017 was commissioned by Mr Burroughs on behalf of Ms Tamati-Moka. He was asked to address fitness to stand trial and also her mental state at the time of the offending.
[24] Dr Dean reports that prior to the alleged offending Ms Tamati-Moka had no contact with mental health services. She reported experiencing auditory hallucinations over a two year period prior to her arrest. He expands on this in his report as follows:
She described hearing a number of voices, many of whom she did not recognise. The voices talked about her and also talked to her. She began to believe she could read other people’s minds and they could read her mind. She believed her life was at risk and began carrying a knife to protect herself from others. At times the voices encouraged her to commit suicide and blamed her for bad events. She felt the voices intermittently possessed her, making her do things. She was particularly concerned others could read angry thoughts from her head. She noticed the voices tended to get louder or more frequent when she smoked cannabis so she stopped using cannabis. This did not lead to the voices going away. She also described having images, seeing shadows or cartoon-like figures. She felt these images were conspiring against her. She began to believe the world was in danger and the voices intended to kill everyone in the world. On occasions she believed these cartoon people and ghosts were holding guns. She increasingly felt the need to protect herself from danger and everyone was at risk.
[25] As to the offending:
Genie-Lee began by saying she could not recall the incident, other than hearing a baby crying. However, she later explained she had not stabbed the baby. She described being taken over by spirits or demons that began to control her body, making her stomach feel tight, as though her guts were wrenching. She had a nervous feeling inside her stomach and became increasingly anxious and upset. She believed the voices took over her actions, grabbing a knife to stab the baby. This was consistent with her belief the voices intended to destroy everyone in the world and everyone was going to die. She had a knife and stabbed the baby.
Following the incident, Genie-Lee had a thought “did I just hurt my cousin”. Her stomach felt “twisted up” and she described running out onto the highway wanting to die. The voices were overwhelming telling her “I am a dumb bitch”, “you should rot in hell” and “hang yourself”. She ran out with the intention of being run over and dying. She described having previously experiencing a feeling she had been possessed by demons, but this had not resulted in her doing “bad things”. She described the incident as being “a big blur” but was relieved the baby survived.
[26] Dr Dean diagnosed Ms Tamati-Moka as suffering from schizophrenia. This was active at the time of the offending and was persisting at the time of his examination of her. In Dr Dean’s opinion, Ms Tamati-Moka was labouring under a disease of the mind at the time of the offence. He concludes:
Genie-Lee’s account of the events to me is consistent with her acting as a direct result of her psychotic symptoms. As described above she was not disinhibited by intoxication and she has no history of unprovoked aggressive behaviour. Her behaviour and events only make sense in the context of her psychotic interpretation. It is therefore my opinion that Genie-Lee was unaware her actions were morally wrong having regard to the commonly held standards of right and wrong. I therefore believe Genie-Lee has a sustainable defence of insanity.
Dr Majeed’s report
[27] Dr Majeed is also a respected and experienced consultant psychiatrist. Dr Majeed’s report of 29 June 2017 was commissioned by the Crown Solicitor.
[28] Dr Majeed agrees Ms Tamati-Moka suffers from a major mental illness that is highly likely to be that of schizophrenia. However, when he interviewed Ms Tamati- Moka she was unable to give him an account of the offending. Instead, she insisted that she loved the victim dearly and said it would not be conceivable that she would engage in any behaviour that would put the victim in harm’s way. But on the basis of her behaviour as described by witnesses, Dr Majeed concluded:
Based on Ms Tamati-Moka’s mental state at the time the offence of wounding with intent to cause grievous bodily harm was committed, in my opinion the defence of insanity as outlined in section 23 of the Crimes Act
1961 is highly likely available to her in relation to this offence.
Dr Kumar’s report
[29] I have also had regard to a report dated 21 March 2017 prepared by Dr Kumar, a consultant forensic psychiatrist, at the request of the District Court. The purposes of the report, prepared pursuant to s 38 of the Act, were to address whether Ms Tamati-Moka was unfit to stand trial and whether she was at that time insane within the meaning of s 23 of the Crimes Act.
[30] Dr Kumar’s report is entirely consistent with the reports of Dr Dean and
Dr Majeed. Dr Kumar was the first psychiatrist to diagnose Ms Tamati-Moka as
suffering from schizophrenia. He was unable to be clear on insanity because Ms Tamati-Moka did not want to discuss the offending with him. However, he recommended that insanity be further investigated.
[31] Ms Tamati-Moka told the psychiatrists that she had kept the problem she was having with hearing voices to herself. She said that on one occasion she had begun to talk about it with an aunt, but the surprised look on the aunt’s face caused her to stop. However, deteriorating mental health can at times be noticed by other people, particularly people who are close to the person exhibiting the deterioration. In this case the mother of the victim had known Ms Tamati-Moka since she was a little girl. In her formal written statement she says:
I have noticed that since last year Genie-Lee has been getting worse with her mental state. When she has her episodes she will just like zone out. It’s like she’s not there, she’ll be laughing at things like nothing, there’ll be nothing there but she just laughs.
It’s like she can’t deal with all the things that have happened to her in her life. She looks like she’s got so much hurt going on, so much thoughts. Like she’s carrying a lot of things like she’s not normal. Then sometimes she can be normal. She switches.
I have been worried enough to tell Genie-Lee’s mum, Gloria, that she needs help. Her mum and dad knew she needed help but I don’t think they know how to get help.
Decision
[32] The standard of proof on the defence of insanity is the balance of probabilities. On the evidence, I am satisfied well beyond that standard that at the time of the offending Ms Tamati-Moka was labouring under a disease of the mind to such an extent as to render her incapable of knowing that the stabbing of the victim was morally wrong, having regard to the commonly accepted standards of right and wrong. I accordingly find Ms Tamati-Moka not guilty of the charge of attempted murder on account of her insanity. Ms Tamati-Moka is discharged on the alternative charge.
Disposition
[33] Pursuant to s 23 of the Act, I must order that inquiries be made to determine the most suitable method of dealing with Ms Tamati-Moka under either s 24 or s 25 of the Act. Section 24 provides:
(1) When the court has sufficient information on the condition of a defendant found unfit to stand trial or acquitted on account of his or her insanity, the court must—
(a) consider all the circumstances of the case; and
(b) consider the evidence of 1 or more health assessors as to whether the detention of the defendant in accordance with one of the orders specified in subsection (2) is necessary; and
(c) make one of the orders referred to in paragraph (b) 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.
(2) The orders referred to in subsection (1) are that the defendant be detained—
(a) in a hospital as a special patient under the Mental Health
(Compulsory Assessment and Treatment) Act 1992; or
(b) in a secure facility as a special care recipient under the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003.
(3) Before the court makes an order specified in subsection (2)(a), the court must have received evidence, under subsection (1)(b), about the defendant from at least 1 health assessor who is a psychiatrist
[34] It will be seen from this that an order under s 24 would require the detention of Ms Tamati-Moka.
[35] Section 25 provides:
(1) If, after considering the matters specified in section 24(1)(a) and (b) concerning a defendant found unfit to stand trial or acquitted on account of his or her insanity, the court is not satisfied that an order under section 24(2) is necessary, the court must deal with the defendant—
(a) by ordering that the defendant be treated as a patient under the Mental Health (Compulsory Assessment and Treatment) Act 1992; or
(b) by ordering that the defendant be cared for as a care recipient under the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003; or
(c) if the person is liable to be detained under a sentence of imprisonment, by deciding not to make an order; or
(d) by ordering the immediate release of the defendant.
(2) Before the court makes an order under subsection (1)(a), the court must be satisfied on the evidence of 1 or more health assessors (at least 1 of whom must be a psychiatrist) that the defendant is mentally disordered.
(3) Before the court makes an order under subsection (1)(b), the court must be satisfied on the evidence of 1 or more health assessors that the defendant—
(a) has an intellectual disability; and
(b) has been assessed under Part 3 of the Intellectual Disability
(Compulsory Care and Rehabilitation) Act 2003; and
(c) is to receive care under a care programme completed under section 26 of that Act.
(4) In the exercise of its powers under subsection (1), the court may take into account any undertaking given by, or on behalf of, the defendant that the defendant will undergo or continue to undergo a particular programme or course of treatment.
[36] A major difference between an order under s 24 and s 25 is that a s 25 order does not require detention.
[37] In this case the Crown has commissioned a report from Dr Majeed as to disposition. It is dated 21 August 2017. Dr Majeed recommends that Ms Tamati- Moka be considered for disposition under s 25(1)(a) of the Act. He says:
Her psychiatric treatment needs and risk management needs can in my opinion be sufficiently delivered under the provisions of section 25(1)(a). Disposition under section 24(2)(a) would be unnecessary in relation to her psychiatric treatment and risk management needs and would slow down her reintegration back into the community. Section 25(1)(a) provides sufficient legal grounds to cover the treatment of her psychiatric condition and to cover the management of any risk that arises from her mental condition.
[38] I have also received this morning a short report from Dr Kumar dated
24 August 2017. It says that Ms Tamati-Moka’s mental health has improved since her medication was changed on 21 July 2017, but in his view she still needs inpatient treatment.
[39] In cases such as this, the Court will always be mindful of public safety. I respect Dr Majeed’s opinion and I am conscious that he has seen Ms Tamati-Moka very recently. But I am also mindful that Dr Dean, in his report of 5 April 2017, gave this opinion:
Given the severity of her psychiatric condition and the seriousness of the alleged offending a disposal under section 24(2)(a) of [the Act] may be the most appropriate disposal.
[40] I think, given the seriousness of the attack on the victim, I would be assisted by a second opinion from a health assessor on the most suitable method of dealing with Ms Tamati-Moka under s 24 or s 25 of the Act.
[41] Pursuant to s 23 of the Act, I order that further inquiry be made accordingly.
[42] For the purpose of facilitating that inquiry, I further remand Ms Tamati-Moka to the Henry Bennett Centre. Pursuant to s 23(4) of the Act, these inquiries must be completed as quickly as practicable and, in any event, within 30 days after the date of the order under which inquiries are made. Accordingly, I order that Ms Tamati- Moka will be brought before the Court again at 9:00 am on Thursday, 21 September
2017. I anticipate that I will at that hearing be able to order disposition as I am
required to do.
Brewer J