R v Tu

[2015] NZHC 3045

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2015-004-6670 [2015] NZHC 3045

UNDER

s 9 and 14 of the Criminal Procedure

(Mentally Impaired Persons) Act 2003

BETWEEN

THE QUEEN

AND

JIAXIN TU Defendant

Hearing:	3 December 2015
Counsel:	K A Lummis for Crown P H H Tomlinson for Defendant
Judgment:	3 December 2015

JUDGMENT OF BREWER J

Solicitors:           Meredith Connell (Auckland) for Crown

Peter H H Tomlinson (Auckland) for Defendant

THE QUEEN v TU [2015] NZHC 3045 [3 December 2015]

Introduction

[1]      Mr Tu has been charged with murder.  A trial date of 30 May 2016 has been ordered.      However,   Mr Tu   has   significant   mental   health   difficulties   and Mr Tomlinson,  on  his  behalf,  invoked  the  procedures  under  ss 9  and  14  of  the Criminal Procedure (Mentally Impaired Persons) Act 2003 (the Act) to establish whether Mr Tu is fit to stand trial. This judgment decides that issue.

Factual background

[2]      On the morning of Wednesday, 1 July 2015, Mr Tu and the victim, Mr Hawe- Wilson, were at an Auckland address with two female associates.  There had been friction between Mr Tu and Mr Hawe-Wilson.

[3]      In the early hours of the morning, while Mr Hawe-Wilson was asleep in bed, Mr Tu took a builders hammer, went into the bedroom where Mr Hawe-Wilson was sleeping and struck him with the hammer on the back of the head a number of times. This caused massive trauma to Mr Hawe-Wilson’s head and killed him.

Is there sufficient evidence for Mr Tu to stand trial?

[4]      The first stage of the inquiry is to determine whether, on the balance of probabilities, there is sufficient evidence to put Mr Tu on trial.  I am satisfied that there is.  Having considered the Crown’s formal witness statements, and taking into account  Mr Tomlinson’s  acceptance  of  the  point,  I find  that,  on  the  balance  of probabilities, Mr Tu killed Mr Hawe-Wilson in circumstances that found the charge of murder.

Mental health issues

[5]      The second stage of the inquiry under s 14 of the Act goes to Mr Tu’s fitness to stand trial.   I have the benefit of reports from two experts obtained pursuant to s 38(2)  of  the Act.    Dr N Joseph  has  provided  reports  dated  14 July  2015  and

4 November 2015.  Dr I Goodwin has provided a report dated 16 November 2015.

[6]      Dr Joseph’s first report indicated that Mr Tu was most likely unfit to plead. However, Dr Joseph was hopeful that he would improve given appropriate treatment. Dr Joseph’s second report says that signal improvement has occurred and that Mr Tu is fit to stand trial.

[7]      Dr Goodwin’s opinion is also that Mr Tu is fit to stand trial.

[8]      Mr Tomlinson for Mr Tu accepts the reports.   He has not required either

Dr Joseph or Dr Goodwin to give evidence.

[9]      I am satisfied on the evidence of Dr Joseph and Dr Goodwin that Mr Tu is mentally impaired, but I am also satisfied on their evidence that Mr Tu is fit to stand trial.  I determine that issue accordingly.

Insanity

[10]     Mr Tomlinson has suggested that I should order a report to look into the issue of whether at the time of the homicide Mr Tu was insane within the definition contained in s 23 of the Crimes Act 1961.  I do not think that that is appropriate.

[11]     The situation is that Mr Tu has been found fit to stand trial.  I can consider the issue of whether he was legally insane at the time of the homicide only if the provisions of s 20 of the Act are applicable.   Section 20(2) provides that before a trial, a Judge must record a finding that the defendant is not guilty on account of his insanity if (a) the defendant indicates that he intends to raise the defence of insanity (and, today, Mr Tomlinson has given that indication); and (b) the prosecution agrees that the only reasonable verdict is not guilty on account of insanity (and, today, Ms Lummis for the Crown does not agree); and (c) the Judge is satisfied on the basis of expert evidence that the defendant was insane within the legal meaning at the time of the commission of the offence.

[12]     Therefore, it only falls for a Judge to consider expert evidence pre-trial on the issue of insanity if both the Defence and the Crown are agreed that the only reasonable verdict is not guilty on account of insanity.  The role of the Judge is to act as a check on the concurrence of the Defence and the Crown.

[13]     I have indicated to counsel that I will only consider the issue of insanity if I receive memoranda from them as to an agreed position based on expert evidence which I can then have regard to.

Name suppression

[14]     Mr Tu has to this point had interim name suppression.  That suppression has been in force so that his mental health condition can be investigated to see whether any aspect of it might  found the degree of hardship that the law requires as a prerequisite for continuing name suppression.

[15]     Mr Tu is now fit to plead.   There is no material before me which would indicate that publication of his name would cause him any hardship to the extent required by law.

[16]     Mr Tomlinson points out that the issue of insanity has yet to be resolved but concedes that as at today there is no indication that publication would cause the sort of hardship to which I have referred.

[17]     Accordingly, I will not renew the interim name suppression and it lapses today.

[18]     Mr Tomlinson has asked that I suppress the reasons I have given in this judgment  as  to  Mr Tu’s  fitness  to  stand  trial.    In  particular,  Mr Tomlinson  is concerned for fair trial rights about publication of the reasons for the s 9 finding.

[19]     I considered, prior to coming to Court, the extent to which I should go into the detail of the factual background of the case and into Mr Tu’s mental health history.  I have confined my discussion of these matters to the bare minimum which I consider to be properly publishable.   I do not see any real issue going to fair trial rights if this judgment is published and so I decline to make any further suppression orders.

Trial administration

[20]     The case now has to go back into the criminal list for progression to trial. Counsel are agreed that there is no point in having a case review hearing and that I should schedule the trial callover sufficiently far into the future to enable counsel to work with the mental health experts on the insanity issue.

[21]     Accordingly, I direct that the trial callover for the case will occur at 9:00 am on 16 March 2016.

[22]     Mr Tu is remanded further in custody to appear at the trial callover at 9:00 am on 16 March 2016.

[23]     I  grant  the  Crown’s  application  to  extend  the  time  for  the  filing  of  all

necessary documents to take place three weeks prior to the trial callover date, being

the date on which the Crown’s trial callover memorandum must also be filed.

Brewer J