R v The Queen
[2015] NZHC 815
•23 April 2015
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REMAINS IN PLACE.
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2014-044-2080 [2015] NZHC 815
THE QUEEN
v
R
Hearing: 22 April 2015 Appearances:
Mr Walker for Crown
Mr Brosnahan & Ms Brown for defendantJudgment:
23 April 2015
JUDGMENT OF WINKELMANN J
[Section 14 Criminal Procedure (Mentally Impaired Persons) Act 2003 - fitness
to stand trial]
This judgment was delivered by me on 23 April 2015 at 4.30 pm pursuant to
Rule 11.5 of the High Court Rules.
Registrar/ Deputy Registrar
R v R [2015] NZHC 815 [23 April 2015]
[1] The defendant is to stand trial on one charge of murder and one charge of rape. An issue has been raised as to whether he is fit to stand trial. The Criminal Procedure (Mentally Impaired Persons) Act 2003 (the Act) provides that a court may not make a finding as to whether a defendant is unfit to stand trial unless the court is satisfied, on the balance of probabilities, that the evidence against the defendant is sufficient to establish that the defendant caused the act that formed the basis of the
offence or offences with which he is charged.1 I have previously determined that the
evidence against the defendant is sufficient to establish that he did the acts which form the basis of the offences of murder and rape.2
[2] Having determined that issue I am therefore required to proceed to determine the matters specified in s 14 of the Act.3 The first of these matters is whether the defendant is mentally impaired. To determine that I must consider the evidence of two health assessors on the issue.
[3] Section 14(2) sets out the procedure if I make a determination that the defendant is mentally impaired. It provides:
(2) If the court is satisfied on the evidence given under subsection (1) that the defendant is mentally impaired, the court must record a finding to that effect and—
(a) give each party an opportunity to be heard and to present evidence as to whether the defendant is unfit to stand trial; and
(b) find whether or not the defendant is unfit to stand trial; and
(c) record the finding made under paragraph (b).
The standard of proof required for a finding under subs (2) is the balance of probabilities.4
[4] The Court of Appeal summarised this procedure in R v McKay as follows5:
Step 1 … the first step is to obtain [two health assessors’ reports]. …
1 Criminal Procedure (Mentally Impaired Persons) Act 2003, s 9.
2 R v R [2015] NZHC 783.
3 Criminal Procedure (Mentally Impaired Persons) Act 2003, s 13.
4 Section 14(3).
5 R v McKay [2009] NZCA 378, [2010] 1 NZLR 441 at [50].
Step 2 If, as will normally be the case, the reports have been ordered under s 38 and/or s 39, those reports must be made available to the defendant's counsel and (generally) the defendant (s 45) and to the prosecutor (s 46(1)(a)).
Step 3 The court must give each side the opportunity to present evidence as to whether the defendant is mentally impaired (s 45(5)) and/or as to whether he or she is unfit to stand trial (s 14(2)(a)).
Step 4 The court must give each side the opportunity to make submissions
(s 14(2)(a)).
Step 5 The court must make and record findings (on the balance of probabilities: s 14(3)). Three findings are possible:
(a) The defendant is not mentally impaired. (Such a finding will automatically mean he or she is fit to stand trial.)
(b) The defendant is mentally impaired but nonetheless fit to stand trial.
(c) The defendant is mentally impaired and unfit to stand trial. Step 6 If findings (a) or (b) are made, s 14(4) applies. The case will proceed
to trial. If finding (c) is made, then the court will proceed in
accordance with Subpart 3.
[5] The two legal issues in s 14 are therefore, whether the defendant is mentally impaired, and if so whether the defendant is fit to stand trial. Mental impairment is not defined in the Act. As to the definition of “mental impairment” I agree with the observations of Kos J in R v RTPH:6
[9]“Mentally impaired” is undefined in the Act. On reflection, I think it must encompass more than just “mental disorder” (as defined in the Mental Health (Compulsory Assessment and Treatment) Act 1992) and “intellectual disability” (as defined in the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003). It is possible it includes, therefore, other mental impairments, such as those caused by degenerative neurological condition, substance abuse or acquired brain injury, involving short term memory and frontal lobe deficits, low intelligence or impaired cognition, any of which lead to difficulty in organising or processing information and responding. The focus of the undefined term should be on whether the defendant has a condition that impairs mental function to the extent it may seriously affect the defendant's ability to comprehend charges, consider options and consequences, plead, or mount a defence.
[6] The last sentence of that passage suggests that the question of whether a defendant has a mental impairment entails an assessment of issues that are also
relevant to the second question of whether a defendant is fit to stand trial. A similar conclusion appears from the Court of Appeal’s decision in SR v R, where the Court stated:7
A further problem is that the expression “mental impairment” is not defined in the CPMIP and may not be capable of precise definition. Plainly, it must be referable to a mental state or condition which impairs fitness to stand trial
[7] In that case, the Court of Appeal approved of the approach taken by Dobson J
to the definition of mental impairment in the High Court in the following way:
[157] The Judge then considered submissions made to him by counsel as to the meaning of the expression “mentally impaired” in the CPMIP. The Judge did not consider it appropriate to apply the meanings of expressions drawn from legislation in other contexts such as the concept of a disability for the purposes of s 21 of the Human Rights Act 1993. He agreed with observations made by Fogarty J in R v Roberts to the effect that modern academic thinking was moving towards decisional competence judged on context. He adopted observations made by Fogarty J in the same case to the following effect:
For the purposes of this next step of psychiatric assessment I think it is sufficient to emphasise two points. That by statute an enquiry into whether or not a person is fit to stand trial is an enquiry into whether or not the person is “mentally impaired”, as distinct from “mentally disordered” or “insane”. A person who is mentally disordered and/or insane and/or intellectually disabled, will be mentally impaired. But it does not follow that mentally impaired should depend upon one of those three diagnoses. In this case the enquiry is directed to examining whether the accused is capable of conducting a defence, or instructing counsel to do so.
The second point to emphasise is that the cause of “due to mental impairment” has to be applied against the task expected of the accused person. The judgment has to be made in the context. It is not satisfied by the accused demonstrating some fundamentals of rationality. So the question is whether or not [R] is ―unable, due to mental impairment, to conduct a [rational] defence or to instruct counsel to do so‖, in this case.
[158] Dobson J then continued:
[40] …a mental impairment is a disorder or condition affecting the rationality of an accused to an extent that may compromise his or her fitness to stand trial. It needs to have regard not only to an accused person‘s ability to understand and make a rational decision on a plea, but all subsequent aspects of conducting a defence. It is the first aspect of a two-stage inquiry. There may be recognisable impediments to a person’s rationality (ie he or she is mentally
impaired) but then, on a second analysis, that impairment can be characterised as not sufficient to render the person unfit to stand trial.
[41] However, a literal approach recognising any impairment to the mental faculties by contrast with the mentally healthy population would broaden the concept of mental impairment beyond that which is warranted in this statutory context.
[159] We agree with the observations made by Fogarty J and Dobson J. The linking of mental impairment with fitness to stand trial is mandated by s
14(2) of the CPMIP:
[8] The expert opinion in SR v R was that in some situations a personality disorder may amount to a mental impairment if it was severe enough to effect the defendant’s ability to participate in a criminal trial, but that on the facts of that case the personality disorder was not severe enough to constitute a mental impairment.8
[9] The second question is whether, because of mental impairment, the defendant is unfit to stand trial. The Act defines this concept as follows:9
unfit to stand trial, in relation to a defendant,—
(a) means a defendant who is unable, due to mental impairment, to conduct a defence or to instruct counsel to do so; and
(b) includes a defendant who, due to mental impairment, is unable—
(i) to plead:
(ii) to adequately understand the nature or purpose or possible consequences of the proceedings:
(iii) to communicate adequately with counsel for the purposes of conducting a defence.
[10] The factors listed in para (b) of the definition of unfit to stand trial are non- exhaustive, and the Court may also be assisted by reference to the so-called “Presser factors”.10 These factors are that the defendant can:
(a) understand what it is that he/she has been charged with;
(b) plead to the charge and exercise his/her right of challenge;
8 At [154], [162] and [188].
9 Criminal Procedure (Mentally Impaired Persons) Act 2003.
10 P v Police [2007] 2 NZLR 528 (HC); and Solicitor-General v Dougherty [2012] NZCA 405, [2013] 3 NZLR 586 at [57]
(c) understand that the proceedings are an inquiry as to whether or not he/she did what he/she was charged with
(d) follow, in general terms, the course of the proceeding before the court;
(e) understand the substantial effect of any evidence given against him/her;
(f) make a defence to, or answer, the charge; (g) decide what defence he/she would rely on;
(h) give instructions to his/her legal representative (if any); and
(i) make his/her version of the facts known to the Court and to his legal representative, if any.
[11] When reaching a conclusion on whether the defendant is fit to stand trial the Court must “rigorously examine the expert and other evidence adduced against the relevant criteria”.11
Summary of the expert evidence
[12] The defence obtained a report from a psychiatrist, Dr Duff, late last year, and tendered that (with some redactions) for the s 14 hearing. I have also received the reports of two health assessors, Dr Skipworth, psychiatrist and Ms Sharma, clinical psychologist who provided their opinion as to whether the defendant is mentally impaired, and if so, whether he is fit to stand trial.12 Finally, Ms Sharma gave evidence at the s 14 hearing to clarify aspects of an updating report she prepared.
Dr Duff
[13] This report was prepared on the basis of two interviews conducted on
23 September 2014 and 3 December 2014. In preparing the report Dr Duff had access to information provided by the defendant’s counsel, electronic health records, information about the alleged offending, psychologists’ reports from 2013 and 2014, and the defendant’s criminal history. She also had discussions with the defendant’s
treating clinicians.
11 SR v R above n 7 at [164].
12 Minute 4 February 2015 (incorrectly dated 2014).
[14] The mental state examination carried out by Dr Duff records that during the first interview the defendant had difficulty sticking to a topic of conversation, was restless and reverted frequently to talking about his distress over his previous convictions, breaches of suppression orders and concerns that he was being framed. Dr Duff considered that the defendant presented with severe symptoms of post- traumatic stress disorder specifically in connection with his description of what he referred to as the road accident, which forms part of the Crown case against him. She said:
[h]e has symptoms of hopelessness, anxiety, poor sleep, paranoia and irritability as well as flashbacks and hyper arousal of his autonomic system.
[15] The defendant reported re-experiencing the trauma, distressing dreams and dissociation when having to revisit memories. She considered that he presented with symptoms consistent with post-traumatic stress disorder and also probably secondary clinical depression and anxiety. She noted some improvement of the symptoms on her second visit, by which time the defendant had begun taking prescribed medication.
[16] The conclusion of Dr Duff’s assessment of the defendant’s fitness to stand
trial is as follows:
In summary, whilst [the defendant] has the cognitive capacity to understand and interact intelligently and appropriately with the Court in theory, in practice, at present, the symptoms of his current posttraumatic stress disorder are so severe he is struggling to follow the proceedings and to instruct legal counsel in his defence. I was of the opinion that at present this might impact to a sufficient degree as to be likely to result in the court finding [the defendant] currently unfit to stand trial. It is my opinion that [the defendant] would benefit from a period of time to receive basic treatment for PTSD and work on his distress and emotional regulation prior to being found fit to stand trial but that it is probable that he will regain the necessary competencies within the foreseeable future.
[17] The defendant was given the opportunity to provide an updating report from
Dr Duff for the purposes of this hearing but did not do so.
Dr Skipworth
[18] Dr Skipworth is a consultant forensic psychiatrist. He met with the defendant for approximately one and a half hours in early February 2015. He had information as to the defendant’s engagement with forensic services, corrections notes, psychological and psychiatric reports prepared in 2006 and 2013, information in connection with the current charges and the defendant’s past criminal history.
[19] In relation to his psychiatric history, Dr Skipworth notes that the defendant’s first contact with mental health services was during his previous sentence. At that time he reported having trouble sleeping and fluctuating mood. The rest of the defendant’s interactions with mental health services occurred after his most recent arrest. From these interactions a pattern of aggressive irritable behaviour, poor sleep and flashbacks is reported to emerge. Dr Skipworth notes that the forensic prison team had diagnosed the defendant as suffering from post-traumatic stress disorder with possible co-occurring depression, substance abuse in remission and cluster B personality traits. Following this diagnosis the defendant was prescribed sedative antipsychotic medication and antidepressants.
[20] Dr Skipworth conducted a mental state examination. He records that the defendant was initially hesitant to discuss matters, that his thought content was preoccupied by legal matters, but that there were no signs or symptoms suggestive of psychosis. He concludes that the defendant has an antisocial personality disorder with psychopathic features, and that any drug related disorder is currently in remission as he is less able to access drugs.
[21] Dr Skipworth disagrees that the defendant is suffering from post-traumatic stress disorder. He gives as his reason for this that several of the criteria for diagnosing post-traumatic stress disorder predate the alleged offending. That suggests to Dr Skipworth that a diagnosis of post-traumatic stress disorder is not necessary, rather he suggests that the defendant’s existing personality disorder and the stress he is currently facing over the ongoing legal proceedings constitute a better explanation of his symptoms.
[22] Dr Skipworth’s opinion is that that the defendant does not have a mental impairment. He considers that the defendant’s personality disorder falls short of being a mental impairment. He states that in his experience it is not uncommon for a person facing charges of this nature to present with similar personality pathology.
[23] Nevertheless, Dr Skipworth also addresses some of the factors relevant to the question of whether the defendant is fit to plead because he acknowledges that a court may consider post-traumatic stress disorder and/or a personality disorder amounts to a mental impairment. His opinion is that the defendant is able to conduct a defence and instruct counsel how to do so, understand the nature or purpose and possible consequences of the proceeding, understand his plea options and communicate with his counsel. He says that the defendant has a good understanding of the evidence against him and has gone to some lengths to make counsel aware of his issues with the evidence. Dr Skipworth notes that the defendant has difficulty trusting others including counsel and a tendency to ascribe hostile or malevolent intent to others who may be trying to assist him. He said that the defendant is aware of his own tendencies in this regard, and of the consequences of repeatedly firing his own lawyer.
Ms Sharma
[24] Ms Sharma is a registered clinical psychologist. She initially assessed the defendant on 10 February 2015. She had access to similar information to Dr Skipworth.
[25] Ms Sharma conducted a mental state examination. She recorded that the defendant told her that he had been anxious and stressed about legal issues and had been having difficulty sleeping. Objectively Ms Sharma noted that the defendant appeared calm and composed, but became visibly anxious when discussing legal issues. Ms Sharma considered that the defendant could think abstractly and consider complex situations. He was also able to provide a clear and coherent account of his version of events in relation to the alleged offending. However, when differences between his version and the caption summary were highlighted, the defendant became visibly tense and declined to comment further.
[26] Ms Sharma noted the existing diagnosis of post-traumatic stress disorder. She said it was plausible he was experiencing symptoms of post-traumatic stress disorder for the early part of his remand in custody, but said by the time of the report the symptoms associated with this disorder were attenuated and did not appear to inhibit the defendant’s ability to discuss legal matters. Ms Sharma also considered that the defendant would meet the criteria for cannabis and methamphetamine abuse disorder, so that it was possible that some of his emotional arousal could have been in relation to either intoxication or withdrawal. Finally, Ms Sharma considered that the defendant presented with features of a cluster B personality disorder: She said:
… he demonstrates a capacity to selectively engage with certain professionals in preference to others … disregard for authority, prone to anger and rage, especially when challenged, and considers himself superior to others.
[27] Drawing on these diagnoses Ms Sharma expressed the opinion that the defendant does not have a mental impairment and that more generally he is fit to stand trial. She said that at the time of the assessment the defendant did not have a primary diagnosable psychiatric disorder. The symptoms that the defendant was exhibiting, and reported to have been experiencing were not of sufficient severity to constitute a mental impairment. The anxiety and stress were not severe enough to constitute mental impairment. Withdrawal symptoms had resolved themselves over time and did not at the time of the report constitute a mental impairment. Although his personality disorder could be construed as limiting his ability to instruct his lawyer, Ms Sharma was of the view that this was an enduring personality disposition that would not normally constitute a mental impairment.
[28] Turning to the identifiers of fitness to stand trial Ms Sharma considered that the defendant understood the charges, the roles of different court officers, the pleas available to him and what evidence could be used against him. He appeared to have a comprehensive understanding of the disclosure materials and even a good understanding of criminal procedure. She said:
Based on my clinical impressions of [the defendant] … I am of the opinion [he] will be able to give his version of events to counsel for purposes of conducting a defence strategy.
[29] Ms Sharma’s primary concern related to the difficulties the defendant had with previous lawyers. In particular, the defendant told her that he would ditch his lawyer if he was not happy with how he handled the case. However, Ms Sharma considered that this viewpoint was driven by personality rather than illness and if anything demonstrated the ability to make an informed choice, albeit underpinned with anger and frustration.
Updating evidence
[30] During the course of the s 9 hearing defence counsel expressed their concern that the defendant was having difficulty concentrating, and was increasingly unable to instruct counsel. The defendant’s increasing distress was attributed by the defendant to his having viewed for the first time the post-mortem photographs of the victim. The s 9 hearing was drawing to a close at that point and defence counsel agreed that no adjournment was necessary, but at the request of the Crown and the defence I directed a further assessment be undertaken of the defendant.
[31] Ms Sharma was able to undertake this at very short notice and I am grateful for that. She saw the defendant again on 21 April 2015. At the time she undertook that assessment she had been advised that the defendant was having difficulty concentrating after having viewed fairly graphic information. In her updating written report Ms Sharma recorded that at the start of the assessment the defendant was belligerent and confrontational because he wished to be assessed in a contact booth. He said he did not wish to be perceived as a “dangerous criminal.” She said she was eventually able to establish tenuous rapport with him. She observed no evidence of any cognitive defects and said that he was alert and demonstrated good recollection of recent court matters. He described himself as being very depressed and attributed that to a feeling of helplessness over his legal matters, and that he was increasingly anxious about being convicted. Although he was able to focus on the interview he was distracted at times. Although he was suspicious of individual professionals with whom he came into contact, she said this was not global or of delusional intensity.
[32] The defendant recounted daily flashbacks about the victim and he did demonstrate some hyper-vigilance by looking at passerbys outside the window. However Ms Sharma said that was short lived and he did re-engage in the interview. She said he did not display any signs of dissociation or numbing although he recounted some difficulty sleeping. The defendant refused to engage directly in relation to his knowledge of his legal issues, but Ms Sharma was satisfied from unsolicited responses that he understood the seriousness of the charges, and the legal consequences if he was found guilty. He expressed stress but her assessment was that this was the usual kind of stress in relation to an upcoming trial, such as stress in connection with whether or not to give evidence. He said he was not presently willing to give instructions to his lawyer because he believed his lawyer was “not fighting hard to prove my innocence, and that the lawyer was being too friendly with the Crown and not showing sufficient loyalty to him.”
[33] Ms Sharma discussed with the defendant legal representation. He said he was aware he might become emotionally volatile and fire his lawyer in the courtroom. She said that although he has difficulties in trusting counsel and the legal system which may lead to him being aggressive and hostile in the courtroom and fire his lawyer, he is aware of this and should he choose to dismiss counsel and defend himself, in her opinion he should be considered competent to make such a decision.
[34] As to the hearing in which he saw the autopsy photographs, he said that he was “no longer aware what was said or being done” and that he was experiencing flashbacks. When techniques were discussed with him to deal with that sort of experience, he said he did not want to use them. Further along in the interview he said “I just want more time to prepare my legal case … it is not progressing how I want it to.”
[35] Ms Sharma’s opinion was that the defendant’s presentation appears to be a result of the stress of his legal case and possible life sentence if convicted. She accepts that his ongoing post-traumatic stress disorder symptoms, such as flashbacks and hyper-vigilance seem to have a further negative impact on his mental state. She nevertheless confirms her opinion that he presents with traits suggestive of cluster B personality disorder which have become exaggerated due to the stress of his legal
case. That has led him to adopt a rigid and oppositional stance with the legal system and exhibit an apparent unwillingness to co-operate with counsel. She speculates that the key stressor for him is his legal case and not his post-traumatic stress disorder, given the way he seemed to be preoccupied with defence issue it during the course of the interview rather than his difficulty with symptoms. She confirmed her opinion that the post-traumatic stress disorder and the defendant’s personality construct do not amount to a mental impairment. She said:
I could not find any significant decline in his mental state which would indicate that he will be unable to make his version of events known to others, or be unable to express a preference for a plea.
[36] Ms Sharma attended court. She was called to give evidence to further explain her supplementary report. In questioning from me, she said she believed that management strategies could be put in place to assist the defendant with his focus. She said providing the defendant with an opportunity to take an adjournment if he found at times that he was suffering flashbacks or was losing concentration would be adequate for this purpose.
Analysis
[37] The statutory framework suggests a two stage process, first a determination as to whether the defendant is mentally impaired, and then secondly if he is, a determination as to whether he is fit to stand trial,
[38] Whether a condition amounts to a mental impairment for the purposes of the Act, can be determined by asking whether the condition affects the defendant’s fitness to stand trial. I therefore address whether the defendant’s symptoms suggest that he is unfit to stand trial.
[39] In this case the defendant has a diagnosis of post-traumatic stress disorder and has been receiving treatment and medication for it. In December 2014 there was some concern on the part of an assessing psychologist that whilst the defendant had a cognitive capacity to understand and interact and intelligently with the court in theory, in practice, due to the symptoms of the post-traumatic stress disorder, he would struggle to follow the proceedings and instruct legal counsel in his defence.
[40] A significant period of time has elapsed since then, and the defendant has received treatment. He has received prescription medication and been taught strategies to deal with his post-traumatic stress disorder.
[41] The two health assessors who have seen him more recently both express the opinion that the defendant has the ability to participate fully in the trial process. I accept that assessment. From the reports I have received, I am satisfied that he has the ability to plead, to adequately understand the nature or purpose or possible consequences of the proceedings, and to communicate adequately with counsel for the purposes of conducting a defence. In making those findings I have had regard to the additional Presser-factors which add colour to the statutory definition. I am satisfied that the defendant has a good grasp and understanding of the charges, and the evidence. He has the ability to understand and follow the process. He has the ability to relate his version of events and to communicate adequately with his counsel to provide them with instructions and with the information they need to mount a defence on his behalf.
[42] I should add my observation that I have watched the defendant closely during the course of pre-trial hearings in connection with these s 9 and s 14 issues, and application for stay and admissibility issues. In my opinion, he has participated very fully in the proceeding, indeed more fully than defendants usually do. He actively engages with counsel and takes a very keen interest in what is going on.
[43] From the reports the defendant clearly has difficulty in trusting his advisors and the court process. This is properly attributed to his personality. It is a trait he is aware of. He understands the implications of dismissing his counsel.
[44] Although the defendant suffered a recent flare up of symptoms, the catalyst for that was access to some of the evidence. That occurred in the context of the defendant seeing the material for the first time. The defendant is now acquainted with the material and he will not face the shock of first viewing in the context of trial. If the defendant does suffer a recurrence of loss of concentration or flashbacks, he should raise that with his counsel. The Judge can take into account Ms Sharma’s
evidence as to strategies that could be used during trial in determining the appropriate response.
[45] To conclude, I do not consider that the symptoms that the defendant is experiencing in relation to his post-traumatic stress disorder and his personality disorder are sufficiently severe to amount to a mental impairment for the purposes of the Act. Accordingly, the defendant is fit to stand trial.
Suppression
[46] There are existing name suppression orders in relation to this proceeding. They remain in place. There is to be no publication of the defendant’s name in relation to these proceedings.
[47] The content of this judgment addresses the existence of the defendant’s previous convictions. I therefore make a further order prohibiting publication of any part of the proceedings (including the result) in news media or on the internet or other publicly available database until final disposition of the trial. This order is necessary to protect the defendant’s fair trial rights.
Winkelmann J
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