R v Tu

Case [2016] NZHC 1334 7 June 2016

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2015-004-006670 [2016] NZHC 1334

THE QUEEN

v

JIAXIN TU

Hearing: 30-31 May, 1-3 and 6-7 June 2016

Counsel:

K A Lummis and R Thompson for Crown
P H H Tomlinson and P Gruar for Defendant

Judgment:

7 June 2016

JUDGMENT OF WHATA J

Solicitors: Meredith Connell, Auckland

R v TU [2016] NZHC 1334 [7 June 2016]

[1] Mr Tu faces one charge of murder. He proposes to raise a defence of insanity based on the following expert opinion evidence:1

Under the circumstances he believed he was in, he felt that his actions were morally justified and that he was in a situation where he was acting in self-defence while under a threat to his life. In my opinion, Mr Tu’s autistic thinking may well have resulted in him perceiving his situation as being one in which either he or Mr Wilson were going to die. This together with his heightened state of anxiety, elevated mood and delusional beliefs about being a god may have combined to lead him to commit the alleged offence.

[2] The issue in focus is whether autism spectrum disorder (ASD) and/or autism is a natural imbecility or a disease of the mind for the purpose of the insanity defence codified in s 23 of the Crimes Act 1961.

Background

[3] The Crown alleges that Mr Tu murdered Shane Paul Hawe-Wilson, bludgeoning him to death with a wooden builder’s hammer. The salient alleged facts are as follows. Mr Tu was obsessed with Ms Crystal Hawe and was jealous of the deceased’s sexual relationship with her. In the early morning of Wednesday, 1 July
2015, Mr Tu was resident at an address with Shane, Crystal and another female friend. At about 1.30 am that morning, he obtained a wooden handled builder’s hammer and went into the bedroom where Shane was sleeping. He then struck the back of Shane’s head a number of times, causing major trauma, resulting in the Shane’s death. Mr Tu then left that bedroom and went into the lounge, where he waited until about 6.30 am. He then went back into the bedroom and placed his hand inside Crystal’s pants and tried to remove them, causing her to wake. Shane was found and the alarm was raised.

ASD, Austistic Disorder and Asperger’s Syndrome

[4] The classification of autism-related disorders is a matter of debate,2 but the
following descriptions of ASD, autism and Asperger’s Syndrome, drawn from sources provided by the parties, appear uncontroversial.

1 Psychiatric Report of Dr Wyness dated 2 May 2016 at 11.

ASD

[5] ASD is helpfully explained by Heather Strickland as a range of complex neurodevelopment disorders, characterised by social impairments, communication difficulties and restricted, repetitive and stereotyped patterns of behaviour and that the disorders on this spectrum range from Autism, the most severe form, to
Asperger’s syndrome, which is its mildest form.3

Autistic Disorder

[6] Christine Cea explains the concept of Autistic Disorder (or autism):4

Autism is commonly diagnosed according to…

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 Tu

Details

AGLC: R v Tu [2016] NZHC 1334
Case: [2016] NZHC 1334
Decision Date: 7 June 2016

CaseChat Overview and Summary

The defendant, Tu, was accused of murdering Shane Hawe-Wilson. Tu proposed to raise a defence of insanity based on his autism. The central issue was whether autism spectrum disorder (ASD) and/or autism is a natural imbecility or a disease of the mind for the purpose of the insanity defence under s 23 of the Crimes Act 1961. The court considered whether ASD and autism could be classified as a disease of the mind, a natural imbecility, or both. The court rejected the idea that ASD was a disease of the mind, finding it too broad a classification. It also rejected the notion that autism was a natural imbecility, emphasizing that Tu was not intellectually disabled and could comprehend complex concepts. However, the court found that acute forms of autism might qualify as a disease of the mind if they impair cognitive function to the extent that the individual cannot make moral judgments. The court concluded that Tu’s mental dysfunction, combining high-functioning autism with schizo-affective disorder, prima facie manifested in a disease of the mind, impairing his capacity to make moral judgments. The court also noted that an autistic defence of insane self-defence without psychosis might not be available, as the law does not recognize self-defence based on insane moral justification without a loss of understanding of the facts.

Orders