R v Tarapata
[2018] NZHC 85
•9 February 2018
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2014-055-001496 [2018] NZHC 85
THE QUEEN
v
ZARN TARAPATA
Hearing: 9 February 2018 Appearances:
Richard Marchant and Kristy Li for the Crown
Julia Spelman for the DefendantJudgment:
9 February 2018
[ORAL] JUDGMENT OF MOORE J
R v TARAPATA [2018] NZHC 85 [9 February 2018]
Introduction
[1] On 19 July 2014 Mr Tarapata killed Mr Matthews and Mr Fanning at their workplace in Takanini. At his first trial for their murders in May 2015 the jury rejected Mr Tarapata’s defence of insanity. He was found guilty of both charges. However, those convictions were quashed by the Court of Appeal, hence the need for a second trial.
[2] By the time of the second trial late last year it was agreed between the parties that Mr Tarapata suffered from a disease of the mind, namely schizophrenia. Thus, unlike the first trial, the only issue before the jury was whether at the time of the killings Mr Tarapata knew his acts were morally wrong having regard to the commonly accepted standards of right and wrong.
[3] The jury’s verdicts of not guilty by reason of insanity necessarily mean that the defence satisfied the jury it was more likely than not Mr Tarapata did not know his acts were morally wrong.
[4] Following the verdicts I remanded Mr Tarapata to the Mason Clinic for the purposes of obtaining a health assessor’s report under s 23 of the Criminal Procedure (Mentally Impaired Persons) Act 2003 (“the CP (MIP) Act”). A report authored by Dr Manickam has now been received. Reports by Drs Skipworth, Barry-Walsh and Street were prepared for the trial. These also addressed Mr Tarapata’s diagnosis. Dr Skipworth’s report directly addressed disposition.
Factual background
[5] The facts were not, in any material way, contested at trial.
[6] Mr Tarapata’s partner painted a picture of the defendant’s declining mental health in the weeks leading up to the events of 19 July 2014. His behaviour was progressively paranoid and characterised by religiose ideations. It seems that he was also suffering from auditory hallucinations which led him to believe he was receiving commands from God. There was evidence he developed paranoid delusions which led him to wrongly believe his partner was being unfaithful to him.
[7] On the day of the killings his partner drove him to her workplace in Takanini where she had an appointment to meet a customer. While she was dealing with the customer Mr Tarapata left the car, entered the premises and without provocation of any kind stabbed to death Mr Fanning and Mr Matthews. Each victim received multiple stab wounds from what appears to have been two knives. He then left Takanini with his partner. They drove north where Mr Tarapata hid at least one of the knives and probably discarded items of clothing. They then returned to Papakura, where the couple was then living, before driving south to Huntly where Mr Tarapata’s parents lived. Shortly afterwards Mr Tarapata gave himself up to the Police.
Legal principles
[8] The disposition options available to the Court under the CP (MIP) Act are:
(a) an order the defendant be detained in a hospital as a “special patient”
under the Mental Health (Compulsory Assessment and Treatment) Act
1992 (“the MHCAT”) pursuant to s 24(2)(a) of the CP (MIP) Act;
(b)an order the defendant be made subject to a compulsory treatment order under the MHCAT pursuant to s 25(1)(a) of the CP (MIP) Act; and
(c) an order the defendant be immediately released pursuant to s 25(1)(d)
of the CP (MIP) Act.
[9] Plainly, as all counsel are agreed, the only two realistic options available in the present case are either an order that Mr Tarapata be detained as a special patient or that he be made subject to a compulsory treatment order under the MHCAT.
[10] Both the Crown and the defence agree that in the present case Mr Tarapata should be detained as a special patient rather than made subject to a compulsory treatment order. That approach is also supported by the expert evidence I have received.
[11] The difference between a special patient order and a compulsory treatment order is that the length of a special patient order is determined by the Minister of Health. Public safety and the defendant’s interests are paramount considerations for the Minister.1 The Court of Appeal has observed that in practice, the Minister consults the Director of Mental Health when considering whether a special patient should be discharged or held as a patient or care-recipient.2
[12] Sections 42 and 43 of the MHCAT require institutions to provide specified information relating to special patients to the Minister of Health, such as when the special patient will be transferred to another institution. There are also restrictions in relation to the granting of leave for special patients. For example, a special patient may not be granted leave unless two medical practitioners certify that they are fit to be absent from the hospital.3
[13] In contrast, a compulsory treatment order allows the clinician responsible for the patient to release the patient from compulsory status if the clinician considers that the patient is fit to be released. The patient is then released from compulsory status immediately and the compulsory treatment order is deemed to have been revoked.4
[14] The test in s 24(2)(a) of the CP (MIP) Act as to whether a defendant should be made a special patient is whether detention is “necessary” in the interests of the public or those who may be affected by the Court’s decision.5 The judicial assessment required may be wider in scope than the assessment taken by health professionals.6 To make this assessment, the Court must consider all the circumstances of the case and consider the evidence of one or more health assessors
as to whether the detention of the defendant as a special patient is necessary.7
1 Criminal Procedure (Mentally Impaired Persons) Act 2003, s 33.
2 M v R [2012] NZCA 142 at [11].
3 Mental Health (Compulsory Assessment and Treatment) Act 1992, s 50(1). See also M v R
above n 2 at [12]-[13].
4 MHCAT, s 76(5).
5 CP (MIP) Act, s 24(1)(c).
6 M v R above n 2 at [19].
7 CP (MIP) Act, s 24(1)(a) and (b).
[15] The standard set by the word “necessary” is a high threshold. The Court of Appeal has held that an apt description of the word “necessary” is “a fairly strong word falling between expedient or desirable on the one hand and essential on the other”.8
[16] The health assessor’s evidence must explain why the treatment and management of the defendant requires him to be detained in a secure facility or hospital. The Court must then determine whether it is necessary in the interests of the public to make a special patient order under s 24(2)(a) of the CP (MIP) Act. If the Court concludes that it is not necessary to make such an order it must go on to make an alternative order under s 25 of the CP (MIP) Act.
[17] In the present case I agree with the Crown in respect of the three following aspects of this troubling case. They are these:
(a) Mr Tarapata’s offending is at the most serious end of the scale. These were unprovoked, vicious attacks on two men who happened to be in the wrong place at the wrong time. They died from multiple stab wounds in what was plainly a frenzied attack driven by delusional paranoia;
(b)Mr Tarapata has been diagnosed with treatment-resistant schizophrenia. He poses a continued risk of serious harm to the public; and
(c) his diagnosis and symptoms require the development of a long term treatment plan which is best formulated and given effect to under the auspices of a special patient order.
[18] As already noted, both the Crown and the defence agree that that is the most appropriate course.
8 M v R above n 2 at [17], quoting Environmental Defence Society v Mangonui County (referring to s 3 of the Town and Country Planning Act 1977).
Dr Manickam’s report
[19] I now turn to Dr Manickam’s report.
[20] In his report of 7 December 2017 Dr Manickam summarised Mr Tarapata’s psychiatric history. In the doctor’s opinion Mr Tarapata suffers from treatment- resistant schizophrenia characterised by referential delusions in the form of messages from God and the Bible, religiose delusions, persecutorial delusions, delusions of jealousy and auditory hallucinations. He also has a co-morbid diagnosis of substance abuse disorder.
[21] Dr Manickam’s recommendation that Mr Tarapata should be made subject to a special patient order is based on three primary reasons. These are:
(a) he is likely to pose a high risk of harm to others, taking into account the killings of Mr Fanning and Mr Matthews, using a weapon while psychotic as well as the nature and intensity of his psychotic symptoms;
(b)the symptoms were aggravated through Mr Tarapata’s abuse of illicit substances, particularly methamphetamine. He is at risk of a relapse of the schizophrenia or substance intoxication which could exacerbate his psychotic symptoms. He has also suffered multiple relapses whilst in custody requiring re-admission to the Mason Clinic; and
(c) he would benefit from a forensic rehabilitation pathway through the Mason Clinic to optimise treatment for his schizophrenia and improve his insight into his mental illness, substance abuse and associated risks both to himself and to others.
Dr Skipworth’s report
[22] In preparation for Mr Tarapata’s trial, Dr Skipworth, the Director of the Mason Clinic, prepared a written report dated 25 October 2017. He addressed the issue of disposition. Dr Skipworth was of the view that Mr Tarapata should be made
a special patient, primarily in order to protect the public. The reasons he gave for that view were five, namely:
(a) Mr Tarapata remains unwell; in a similar mental state to that which he was in at the time he killed both men;
(b)he continues to experience auditory hallucinations to harm or kill others. He has fashioned stabbing weapons while he was in custody, ostensibly to protect himself against real or delusional threats;
(c) he lacks insight into his illness and repeatedly stopped taking his medication exposing himself and others to the risk of violence;
(d)methamphetamine and other drug abuse will continue to elevate his potential risk; and
(e) a prolonged period of secure rehabilitation is necessary and can only reasonably take place in a secure forensic mental health facility such as the Mason Clinic.
[23] Dr Skipworth did not recommend making Mr Tarapata subject to a compulsory treatment order. His concerns were that his psychiatric care would be managed by a non-forensic mental health service and his responsible clinician could discharge him from such an order without any form of external oversight.
Other psychiatric evidence
[24] The other two psychiatrists who gave evidence at the trial, Dr Barry-Walsh and Dr Street, did not address disposition options but all agreed that Mr Tarapata was schizophrenic and was treatment resistant.
Conclusion
[25] The forensic psychiatric evidence points overwhelming in favour of the making a special patient order. The statutory requisition of necessity demands as much. Any other option would expose the public to an unacceptable level of serious
violence. Only in a secure facility such as the Mason Clinic will Mr Tarapata’s compliance with treatment be monitored and only under a special patient order will there be sufficient safeguards in terms of ensuring that if Mr Tarapata is ever released, that course will only take place if the Minister of Health, on the advice of medical professionals, is satisfied that Mr Tarapata no longer poses a risk.
[26] And while my decision must be a judicial one having regard to all of the circumstances of the case, I am fortified in my conclusion by the submissions of the Crown and the defence and the universally consistent views of the psychiatrists whose opinions in this regard must carry considerable weight.
Result
[27] In terms of s 24(2)(a) of the CP (MIP) Act I direct that the defendant be detained in a hospital as a special patient under the MHCAT.
Moore J
Counsel/Solicitors:
Mr Marchant, Auckland Crown Solicitor, Manukau Mr Krebs, Napier
Ms Spelman, Wellington
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