R v Tofilau
[2019] NZHC 2145
•29 August 2019
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2018-004-11745
[2019] NZHC 2145
THE QUEEN v
SOLOMONA TOFILAU
Hearing: 29 August 2019 Counsel:
E J Smith for Crown
L O Smith (on instructions from A S Bloem) for Defendant
Judgment:
29 August 2019
JUDGMENT OF BREWER J
Solicitors:
Meredith Connell (Auckland) for Crown
Bloem & Associates (Albany) for Defendant
R v TOFILAU [2019] NZHC 2145 [29 August 2019]
Introduction
[1] Mr Tofilau is charged that on 27 December 2018 at Auckland he attempted to murder Michael Norris. He is remanded in custody on that charge.
Background
[2] The summary of facts says Mr Norris and Mr Tofilau were known to each other. They had lived in the same street. By Mr Tofilau’s account, he had for some time harboured resentment towards Mr Norris who he perceived to be a negative influence on the neighbourhood.
[3] At about 9:30 am on Thursday, 27 December 2018, Mr Tofilau was at his home address. He saw Mr Norris in the street and decided to confront him. He took with him a machete. Mr Tofilau accosted Mr Norris and, without warning or provocation, swung the machete at Mr Norris’s head. At the last moment Mr Norris managed to raise his arm to protect himself. The machete blow caused a deep wound to Mr Norris’s left forearm. Mr Tofilau continued to attack with the machete and Mr Norris suffered a less significant cut to the left side of his neck before a bystander intervened and disarmed Mr Tofilau. The police attended shortly afterwards, and Mr Tofilau was arrested.
[4] Mr Tofilau told the police he intended to kill Mr Norris by cutting his head off and said that Mr Norris was lucky not to have been killed and lucky to have raised his arm in a defensive way. Mr Tofilau said he thought Mr Norris had stolen his television set.
Fitness to stand trial
[5]The issue for me now is whether Mr Tofilau is fit to stand trial.
[6] Preliminary procedures have been carried out in accordance with the Criminal Procedure (Mentally Impaired Persons) Act 2003 (“the Act”).
[7] A defendant is unfit to stand trial if they are unable, due to mental impairment, to conduct a defence or to instruct counsel to do so. This includes a defendant who,
due to mental impairment, is unable to plead, to adequately understand the nature or purpose or possible consequences of the proceedings, or to communicate adequately with counsel for the purposes of conducting a defence. The submission on behalf of Mr Tofilau is that he is within this definition. The Crown accepts that this is the case.
[8] Reports were obtained as required from two health assessors. Both are highly experienced.
[9] The first report is from Dr Goodwin, a consultant psychiatrist, dated 5 February 2019. The second report is from Dr Easden, a registered senior clinical psychologist, and is dated 3 April 2019.
[10] I convened the first part of this hearing on 15 August 2019. I was reluctant to rely on those two reports because of what they said about Mr Tofilau and because neither health assessor had seen the DVD interview of Mr Tofilau with the police immediately following his arrest.
[11] The points that concerned me were that, first, Dr Goodwin interviewed Mr Tofilau without the benefit of an interpreter. Mr Tofilau is of Samoan origin and came to New Zealand when he was young. According to Dr Easden, he is neither fluent in Samoan nor English. He needs an interpreter to best understand what he is being asked and to best respond to what he has been asked.
[12] So far as Dr Easden’s report was concerned, I noted that because of these linguistic difficulties Dr Easden was unable to administer a neuropsychological test to assess the level of Mr Tofilau’s competence. Dr Easden did have, for part of his interview, the benefit of an interpreter, but it seemed to me a communication assistant might have been beneficial.
[13] I directed further reports. I requested that the further assessments be made with the assistance of an interpreter and a communication assistant. I directed the health assessors be provided with the DVD police interview with Mr Tofilau and the transcript recording it. I adjourned the fitness hearing to today.
[14] I now have updated reports from the two health assessors. Dr Goodwin’s report is dated 26 August 2019 and Dr Easden’s report is dated 27 August 2019. An addendum from Dr Easden dated 28 August 2019 is also to hand.
[15] Both health assessors remain of the view that Mr Tofilau is unfit to stand trial. The position of Crown and defence remains unchanged. Of course, it is still a matter for me and so I now go through the statutory procedure.
[16] First, on the evidence of the two health assessors I am satisfied on the balance of probabilities that Mr Tofilau is mentally impaired. I record that finding. It is quite clear that Mr Tofilau suffers from significant cognitive impairment. That was apparent from the police DVD interview and was confirmed by both health assessors in their first reports.
[17] I am now required to give each party an opportunity to be heard and to present evidence as to whether Mr Tofilau is unfit to stand trial. Both parties have submitted Mr Tofilau is unfit to stand trial. Neither requires evidence to be presented and are content to rely on the written reports of the health assessors. I record that at the previous hearing into this matter I called Dr Easden to give evidence and both parties had the opportunity to ask him questions.
[18] At this point I have to make the decision as to whether Mr Tofilau is unfit to stand trial. I have decided he is unfit to stand trial and because Crown and defence are agreed on that finding, I will not go in detail through the health assessors’ reports. I will say broadly why I have reached the same conclusion as the Crown and defence.
[19] There is no doubt, as I have said, that Mr Tofilau suffers from a significant mental impairment. He does not have a significant intellectual disability, however. I am satisfied that he understands the Court process sufficiently that he would be able to enter a plea. I am also satisfied that he adequately understands the nature or purpose and possible consequences of the proceedings. I do not say his understanding is perfect, but the requirement is for adequacy. From the various answers he has given the health assessors when they have asked him about the situation he finds himself in, I am satisfied he knows he is in jeopardy of being convicted of the charge of attempted
murder. I am satisfied he understands that attempted murder requires an intention to kill. I am satisfied he understands the consequences of a conviction would be continued criminal incarceration. However, I am also satisfied on the balance of probabilities that Mr Tofilau is unable to communicate adequately with counsel for the purposes of conducting a defence.
[20] It seems Mr Tofilau suffers from a species of dementia and the latest reports of the health assessors point to the likelihood of both a disease base and a base of historical injury that might account for the observed cognitive impairment. There are further medical assessments ongoing to try to clarify that diagnostic picture but that does not bear upon the inquiry I have to make today.
[21] Mr Tofilau is unable to orient himself in time and space. He cannot stick to the point. With huge difficulty he can be brought to a point, but his answers are variable. With the assistance of a communication assistant and with patient probing by those who know how to do it, there are flashes of understanding and comprehension which bear on the trial issues. But those flashes are scarce, and it appears to Dr Easden that Mr Tofilau’s condition has deteriorated appreciably even in the gap between his reports.
[22] I am satisfied Mr Tofilau could not adequately instruct his counsel. He certainly could not adequately be called to give evidence on his own behalf. In reaching this decision I have had regard to the unfortunate reality that many defendants in criminal trials have mental impairments. There is no definition of ‘mental impairment’ because the phrase is related directly to the ability of a defendant to conduct a defence or to instruct counsel to do so. The threshold is a high one due to the requirement that the effect of mental impairment render a defendant unable to participate in the proceeding. As I have said, many defendants who have mental impairments nevertheless are fit to stand trial. In my view Mr Tofilau’s mental impairment takes him across the threshold and makes him unfit to stand trial because he simply could not interact adequately with counsel or otherwise take part in the trial processes.
[23]I record a finding that Mr Tofilau is unfit to stand trial.
[24] The next stage of this procedure is that I must inquire into Mr Tofilau’s involvement in the offence with which he is charged. Again, both the Crown and the defence are agreed that the evidence against Mr Tofilau is sufficient to establish that he caused the act that forms the basis of the attempted murder charge. I agree. There can be no question of that. There are eye witness reports of the use by Mr Tofilau of the machete. He himself told the police of his intention to kill his victim and gave detail of that. He expressed the view his victim was lucky to survive. There is no challenge to the admissibility of that evidence.
[25] I record my finding that I am satisfied on the balance of probabilities – and indeed beyond – that the evidence against Mr Tofilau is sufficient to establish that he caused the act that forms the basis of the charge of attempted murder.
[26] With those findings made and recorded, I must now deal with what is to become of Mr Tofilau. When a person is found unfit to stand trial the Court must order that inquiries be made to determine the most suitable method of dealing with the person under s 24 or s 25 of the Act. For the purposes of those inquiries the Court must either make it a condition of a grant of bail that the person go to an approved place for the purpose of the inquiries or remand the person to a hospital or a secure facility. The inquiries must be completed as quickly as practicable and in any event within 30 days after the date of the order under which the inquiries are made.
[27] Therefore, I now order that inquiries be made to determine the most suitable method of dealing with Mr Tofilau under s 24 or s 25 of the Criminal Procedure (Mentally Impaired Persons) Act 2003. For the purposes of those inquiries I remand Mr Tofilau further to the Mason Clinic. I note Dr Easden, in his addendum to his report, advises a secure inpatient bed at the Mason Clinic remains available for this purpose. Insofar as that direction requires an order for detention under s 44(1) of the Act, I make the order accordingly.
[28] Mr Tofilau will need to be brought back to Court for the disposition hearing. The case will be called again at 9:00 am on 26 September 2019. If disposition reports
have been obtained by that date, then I would expect a memorandum from counsel advising the Court whether agreement is still in existence as to the disposition.
Brewer J
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