R v Tampin

[2013] NZHC 2571

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2012-004-011837 [2013] NZHC 2571

THE QUEEN

v

GEOFFREY TAMPIN

Hearing:	3 October 2013
Counsel:	J C L Dixon and C P Paterson for Crown L Freyer for Accused
Judgment:	3 October 2013

JUDGMENT OF COLLINS J

Introduction

[1]      The questions I have to answer are:

(1)Is Mr Tampin not guilty of murdering Mr Clark on 26 June 2012 by reason of insanity; and if he is

(2)        What is the most suitable method of dealing with Mr Tampin? [2]     In answering these questions I shall:

(1)consider Mr Tampin’s involvement in the death of Mr Clark;

(2)decide whether Mr Tampin was insane at the time of the commission of the offence;  and

R v TAMPIN [2013] NZHC 2571 [3 October 2013]

(3)consider if orders should be made under s 24(2) or s 25(1) of the Criminal Procedure (Mentally Impaired Persons) Act 2003 (the Act).

[3] The pre-conditions to a finding of insanity set out in s 20(2) of the Act are satisfied in this case. That is to say, Mr Tampin has indicated he intends to raise the defence of insanity and the Crown agrees that the only reasonable verdict is not guilty on account of insanity.

Mr Tampin’s involvement in Mr Clark’s death

[4] I have had the benefit of an affidavit from Detective  Senior  Sergeant McHattie, the Officer in Charge of the investigation into Mr Clark’s death. That operation was code named “Operation Cowley”.

[5] The police investigations establish that Mr Tampin and Mr Clark were long- term friends.  In June 2012 Mr Tampin moved into the flat occupied by Mr Clark.

[6] Mr Tampin suffers from schizophrenia and was at the time under the care of Auckland Community Mental Health Services.

[7] On the evening of 26 June 2012 Mr Tampin was walking around Auckland city. At the time he heard voices in his head which told him he should kill his flatmate. Mr Tampin went back to Mr Clark’s flat and went to bed. However, the voices continued in his head, telling him that he should kill his flatmate.

[8]   Mr Tampin got out of bed and located a butcher’s knife.  He then went into the kitchen area where Mr Clark was bending over the kitchen sink. Mr Tampin stabbed Mr Clark in the torso. A violent struggle then developed during which a glass panel in the front door of the property was smashed. During the struggle Mr Tampin stabbed Mr Clark over 15 times in his chest, left arm, left hand and left leg.

[9]      Mr Clark died from the wounds he received.

[10] After stabbing Mr Clark Mr Tampin went  back  to  bed.  The  following morning he telephoned his mother and asked her to contact the police because he had stabbed and killed his flatmate.

[11] When spoken to by the police Mr Tampin admitted the facts I have just summarised.

[12] ESR forensic evidence is consistent with the account Mr Tampin provided the police.

[13] Detective  Sergeant  McHattie’s  affidavit  satisfies  me  Mr  Tampin  stabbed Mr Clark with a butcher’s knife on 26 June 2012 and that Mr Clark died from those stab wounds.

Was Mr Tampin insane at the commission of the offence?

[14] Mrs Freyer, counsel for Mr Tampin, has provided a comprehensive psychiatric report from Dr Pavagada. That report was prepared to assist the Court in deciding if Mr Tampin was insane at the time of the offence. Dr Pavagada’s report is based on his own clinical assessment of Mr Tampin as well as his analysis of Mr Tampin’s psychiatric history.

[15] Dr Pavagada’s report explains that Mr Tampin was first admitted into a mental health facility in 1999. He was diagnosed as suffering from paranoid schizophrenia.

[16] Since he first received treatment Mr Tampin’s mental health status has fluctuated quite markedly. He has suffered significant deteriorations in his mental health on many occasions, particularly when he has not adhered to his medication regime or when he has engaged in alcohol and substance abuse.

[17] In the days leading up to the stabbing of Mr Clark, Mr Tampin’s symptoms deteriorated significantly. For example, on the morning of 26 June 2012 Mr Tampin was seen by a neighbour lying on the cold wet ground outside shouting “my head’s

about to explode. The world’s going to end”. The neighbour reports Mr Tampin was very agitated, shouting and acting in a delusional way for about half an hour.

[18] Dr Pavagada’s report explains that on 28 June 2013, the day after Mr Clark’s death, Mr Tampin was admitted into the Mason Clinic. He was irritable, thought disordered and paranoid. Mr Tampin was experiencing ongoing hallucinations and was quite paranoid.

[19] On 6 July 2012 Dr Seth assessed Mr Tampin and noted that he had a well established diagnosis of paranoid schizophrenia and was in the midst of a psychotic episode. Dr Seth reported that Mr Tampin’s schizophrenia was at that time “characterised by ongoing auditory hallucinations, marked thought disorder and confusion, elevated mood and a number of paranoid delusional beliefs, as well as probable religious delusions”.  At that time Dr Seth concluded Mr Tampin was unfit

to stand trial.1

[20] Mr Tampin remained in the Mason Clinic until he was transferred to Mt Eden Prison on 28 September 2012. During his time at the Mason Clinic Mr Tampin responded well to medication. By 29 August 2012 Dr Seth had reached the view that Mr Tampin was fit to stand trial.

[21]  On  19  October  2012  Dr  Cavney  assessed  Mr  Tampin.   He  also  noted Mr Tampin’s well-established history of paranoid schizophrenia and that since treatment in the Mason Clinic Mr Tampin’s mental health had improved to the point where he was fit to stand trial.

[22] Dr Pavagada has explained that Mr Tampin has responded well to clozapine and that as a consequence Mr Tampin’s symptoms are now almost in full remission apart from occasional auditory hallucinations. Dr Pavagada reports Mr Tampin no longer has thought disorder or delusional beliefs.

[23] However,  at  the  time  of  Mr  Clark’s  death  Dr  Pavagada  is  certain  that Mr Tampin was labouring under a disease of the mind to such an extent that he was incapable of knowing that his actions were morally wrong.2

[24] Mr Dixon, counsel for the Crown, has also provided a psychiatric report which Professor Melsop prepared to assist the Court. Professor Melsop has also assessed Mr Tampin and has reached the conclusion that:

(1)on 26 June 2012 Mr Tampin was suffering a disease of the mind, namely schizophrenia;

(2)at the time he was stabbing Mr Clark, Mr Tampin probably did not know his actions were morally wrong.

[25]     In Professor Melsop’s view, Mr Tampin was insane, as that term is used in s 23 of the Crimes Act 1961 at the time he killed Mr Clark.

[26] Having  carefully  evaluated  the  psychiatric  evidence  I  have  no  doubt Mr Tampin was insane at the time he stabbed Mr Clark to death. Accordingly, I must find Mr Tampin not guilty by reason of insanity within the meaning of s 23 of the Crimes Act 1961 at the time of the commission of the offence.

What is the most suitable method of dealing with Mr Tampin?

[27] Having concluded Mr Tampin is not guilty by reason of insanity, I must now determine the most suitable method of dealing with Mr Tampin under ss 24 or 25 of the Act.

[28] After considering all of the circumstances of the case, and the evidence of one or more psychiatrists, I must decide if:

(1)Mr Tampin should be detained as a special patient under the Mental Health (Compulsory Assessment and Treatment) Act 1992. If I find that a special patient order is not necessary I must either:

(2)order Mr Tampin be treated as a patient under the Mental Health (Compulsory Assessment and Treatment) Act 1992. If I make such an order I must specify if the order takes effect as a community treatment order or as an in-patient order;3   or

(3)order the immediate release of Mr Tampin.4

Should Mr Tampin be detained as a special patient?

[29] I can only make a special patient order if I am satisfied in all the circumstances that such an order is necessary “in the interests of the public or any person or class of person who may be affected by [my] decision”.5 Mr Tampin consents to the making of a special patient order. However, ultimately, I have to be satisfied that such an order is necessary.

[30] In determining if a special patient order is necessary I need to bear in mind that the test involves a high threshold. I need not be persuaded that a special patient order is essential, but I must be satisfied that it is more than expedient or desirable that a special patient order be made.6

[31] The following evidence from Dr Pavagada and Professor Melsop points to the necessity for making a special patient order:

(1)The severity and duration of Mr Tampin’s mental illness issues which is best addressed through long-term treatment;

(2)The history of Mr Tampin’s inability to manage his mental illness issues by properly adhering to his medication and/or by abusing alcohol and substances;

(3)The fact Mr Tampin is 38 years old and it is too much to expect his elderly mother to care for him.   In reaching this conclusion I stress

3       Criminal Procedure (Mentally Impaired Persons) Act 2003, s 26(1).

4       Section 25(1)(d).

5       Section 24(1)(c).

6       M(CA819/11) v R [2012] NZCA 142.

that I am not critical of Mrs Tampin or her family.   I am sure they have done the best they could under difficult circumstances;

(4)Mr Tampin’s history of relapses results in him failing to care for himself. There is evidence of him losing significant weight during periods of deterioration of his mental illness, and there is evidence of his physical wellbeing suffering during these periods;

(5)When he left school Mr Tampin became an apprentice butcher. However, he did not last long in this role. He has had a number of jobs but cannot recall when he last worked. There are indications that his last employment may have been as a courier in 2005. This is a factor that indicates Mr Tampin needs considerable long-term care and support;

(6)The extreme violence that Mr Tampin inflicted when he failed to control the effects of his mental illness.

[32] On the other hand, the following factors point towards a special patient order not being necessary:

(1)Mr Tampin has responded well to treatment since his admission to the Mason Clinic and Mt Eden Prison;

(2)Mr Tampin now appears to be motivated to adhere to his medication regime and to not relapse into abusing alcohol and substances.

[33] In  my  assessment,  a  special  patient  order  is  necessary  because,  while Mr Tampin has responded well to treatment in the controlled environments provided by the Mason Clinic and Mt Eden Prison, I am far from confident that Mr Tampin would continue to respond so positively if he were not subject to the strict controls which govern special patients.7    Mr Tampin’s history of multiple phases of serious

7       Under s 33 of the Act a special patient may have their status changed to that of a patient subject to compulsory treatment or discharged. An order under s 33 requires the Minister of Health to certify that Mr Tampin’s continued detention as a special patient is no longer necessary in his

deterioration in his mental health since 1999 leaves me in no doubt that Mr Tampin must be managed in a strictly controlled environment. If he is not, there is a very real likelihood he will again relapse and inflict serious violence to others.

[34] I have carefully considered whether my concerns could be adequately addressed by making an order under s 25(1) of the Act.  In my judgement, that is not a realistic option in light of Mr Tampin’s history of mental illness, his failure to control the effects of his illness, and the extreme violence associated with his most recent relapse. I cannot, on behalf of the public, run the risk of not making a special patient order.

Conclusion

[35] I therefore order the detention of Mr Tampin in a hospital as a special patient under the Mental Health (Compulsory Assessment and Treatment) Act 1992.

Publication of Mr Tampin’s name

[36] Having made this finding, s 25 of the Mental Health (Compulsory Assessment and Treatment) Act 1992 applies. As a consequence, publication of reports of this proceeding are governed by ss11B to 11D of the Family Courts Act 1980. Under the Family Courts Act 1980 my leave is required before anything could be published which identifies a vulnerable person. Mr Tampin is a vulnerable person because he is a patient within the meaning of the Mental Health (Compulsory Assessment and Treatment) Act 1992.

[37] In the circumstances of this case I believe there are three factors which justify me allowing publication of Mr Tampin’s name:

(1)Mr Tampin’s name has already been widely published in relation to the death of Mr Clark.

(2)There is an obvious public interest in allowing the public to become aware of the outcome of the prosecution of Mr Tampin.

interests or for the public safety.

(3)Both Dr Pavagada and Professor Melsop have advised me that publishing Mr Tampin’s name is unlikely to have an adverse effect upon his treatment.

[38]     Accordingly, I give leave to publish Mr Tampin’s name in connection with any reports of this proceeding.

D B Collins J

Solicitors:

Crown Solicitor, Auckland

Public Defence Service, Auckland for Accused