R v Tofilau - [2019] NZHC 2145

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Tofilau

Details

AGLC: R v Tofilau [2019] NZHC 2145
Case: [2019] NZHC 2145
Decision Date: 29 August 2019

CaseChat Overview and Summary

In the High Court of New Zealand, the case of The Queen versus Solomona Tofilau involved a charge of attempted murder. Tofilau was accused of attacking Michael Norris with a machete on 27 December 2018. Tofilau, who had harboured resentment towards Norris, swung the machete at Norris's head, causing a deep wound to Norris's forearm and a cut on his neck before a bystander intervened. Tofilau was remanded in custody for the charge. The central issue was whether Tofilau was fit to stand trial, given his mental state.

The court considered reports from two health assessors, Dr. Goodwin and Dr. Easden, who diagnosed Tofilau with significant cognitive impairment. Due to Tofilau's limited fluency in both Samoan and English, the initial reports were deemed insufficient as they did not include an interpreter. The court ordered further assessments with the assistance of an interpreter and a communication assistant. The updated reports confirmed Tofilau's unfitness to stand trial, as he could not communicate adequately with counsel or participate in the trial process. Both the Crown and the defence agreed on this finding.

Based on the evidence, Justice Brewer found Tofilau to be mentally impaired and unfit to stand trial. The court ordered inquiries to determine the most suitable method of dealing with Tofilau under the Criminal Procedure (Mentally Impaired Persons) Act 2003. Tofilau was remanded to the Mason Clinic for further assessment and would be brought back to court for a disposition hearing on 26 September 2019.

Orders