R v Tui

[2023] NZHC 2509

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

I TE KŌTI MATUA O AOTEAROA NGĀMOTU ROHE

CRI-2019-043-1421

[2023] NZHC 2509

THE KING

v

KAREN ANNE TUI

Hearing:

6 September 2023

Appearances:

C E Clarke for the Crown

P M Keegan for the Defendant

Judgment:

7 September 2023

JUDGMENT OF COOKE J

(Reasons for verdict/disposition)

[1]    Ms Karen Tui is charged with  the murder of her mother,  Suzanne Tui,  on 13 August 2019.1 The trial proceeded before me as a Judge alone trial on 6 September 2023. The Crown’s evidence in support of the charges was received by the Court by consent. After considering that evidence, particularly the evidence of two psychiatrists, Dr Feroza Saheb, and Dr Justin Barry-Walsh, I found the act proven but the defendant not criminally responsible on account of insanity under s 23(2) of the Crimes Act 1961 and said I would provide reasons for this verdict subsequently in writing.

[2]    I also said that I would address what orders should be made in  relation to  Ms Tui under s 24 of the Criminal Procedure (Mentally Impaired Persons) Act 2003

1      Crimes Act 1961, ss 160(2)(a) and 169(a) and (b) and 172, maximum penalty life imprisonment.

R v TUI [2023] NZHC 2509 [7 September 2023]

in light of the verdict after hearing further evidence, including from Dr Barry-Walsh in particular.

[3]These are my reasons.

The events

[4]    As indicated the Crown’s evidence was received by the Court without opposition.

[5]    The defendant has struggled with mental health difficulties throughout her life. She was diagnosed with schizophrenia in 1997 and has had many admissions to in- patient units for treatment for psychotic illness.

[6]    She always had a difficult relationship with her mother. Her mother had the care of her child, Tyra-Lee Tui, and this was one of the causes of the sometimes fractious relationship. The evidence discloses that she had previously indicated a desire to harm her mother. Tyra-Lee Tui gave evidence, for example, that the defendant said, “I want to put her out of her misery” and “I want to kill her”. On other occasions she behaved in a threatening way towards her. For example, she once left knives in her letterbox.

[7]    On Tuesday 13 August 2019 she went to her mother’s house, took her by surprise, and strangled her until she died.

[8]    The defendant then went around to her friend’s house, Paul McEntee. She arrived there at about 3.30 or 3.45 pm. He noticed that she had scratches on her face. She then told him that she had been scuffling with her mother and fought with her, ending up on the floor. She gestured with her hands showing a strangling motion. She then said she had killed her mother. Mr McEntee told her that she should go to the police station, and she left.

[9]    At approximately 4.25 pm the defendant arrived at the New Plymouth police station. The defendant spoke to watchhouse keeper Constable Bailey. She reported that she had argued with her mother and she wanted to make sure her mother was okay.

She reported that her mother was responsible for the scratches on her lower cheek and chin area. She then left the police station.

[10]   At 5.12 pm the defendant sent a text to Sharon Robertson, a community health nurse at Tui Ora, a Māori Health and Social Service provider. She had been allocated to the defendant.   The defendant texted her saying that she had hurt her mother.    Ms Robertson asked if she was okay and if her mum was okay. She replied that she thought her mother had died. Ms Robertson then made a further report to police.

[11]   At 5.17 pm she then sent a text to Barbara Badley, the deceased’s sister.     Ms Badley worked for Mental Health New Zealand as a recovery facilitator, and describes the defendant’s mental state in her evidence. The text said “I’m sorry I’ve hurt mum”. When Ms Badley then went around to her sister’s house she was met outside by police.

[12]   Sergeant Hurliman had been tasked to check on the deceased’s address. When he got there there was no answer at the door. He then phoned the defendant and indicated he was there to conduct a welfare check on her mother. The defendant asked “is she dead?” The defendant then said that their argument had got physical. Sergeant Hurliman then looked through the ranch slider of the address and saw the deceased lying on the floor face up.

[13]   Constable Reynolds had been tasked to go to the defendant’s address. When police arrived the defendant answered the door. When she opened the door she immediately asked “have I killed her?”.

[14]   When she was subsequently interviewed by Dr Barry-Walsh on 7 June 2023 Ms Tui described what happened. Dr Barry-Walsh reports:

The day of the alleged offending Ms Tui recalled that she risen in the morning. She cleaned the four houses she had to clean. She described feeling “terrible” “worried” and angry. She said she sat in the car and cried before going round to a friend’s house where she used methamphetamine. She said she then went round to Anthony’s place. He wasn’t there. She said her intent when she went round there was to tell him what she was going to do. She then simply told me she drove to her mother's house, “caught her off guard” and strangled her. She said while strangling her mother she pleaded with her mother to “pass over” and go to heaven so she could rest in peace.

[15]   The other evidence provided by the Crown is consistent with the defendant’s description of events. I am satisfied from the other Crown evidence that the deceased died as a result of being manually strangled by the defendant.

Insanity

[16]Section 23 of the Crimes Act 1961 provides:

23       Insanity

…

(2)No person shall be convicted of an offence by reason of an act done or omitted by him or her when labouring under natural imbecility or disease of the mind to such an extent as to render him or her incapable—

(a)of understanding the nature and quality of the act or omission; or

(b)of knowing that the act or omission was morally wrong, having regard to the commonly accepted standards of right and wrong.

…

[17]   The Court received the reports of the two psychiatrists who addressed the question of insanity. Both concluded that the defendant was suffering from a disease of the mind. Dr Barry-Walsh concluded that Ms Tui was fit to plead, and also that she would have understood the nature and quality of her act in strangling her mother. He concluded, however:

… it is my view that Ms Tui was incapable of reasoning as to the moral wrongfulness of her actions. Ms Tui has articulated an array of persecutory and altruistic delusional beliefs driving her action. That she felt tortured and persecuted by her mother. She believed her mother was abusing her daughter and she had to stop this activity. She described feeling distressed by the voices she was experiencing. She has spoken of believing her actions were those of euthanasia and that her mother was in a better place. All of these beliefs are consistent with her mental illness, have been consistently described, are supported by the materials (e.g. her text to her daughter days before and to her key worker immediately after the alleged offending, the history from family of increasing fear in her mother and hostility directed by Ms Tui towards her mother in the months leading up to the alleged offending) and are evidence her capacity to reason as the moral wrongfulness of her actions in killing her mother was seriously impaired. In addition, it is striking just how unwell she was found to be following the alleged offending. A key feature was disorganisation in thinking. This also would have undermined her capacity to reason as the moral wrongfulness of her actions. Although, based on her

account to me, she was intoxicated with methamphetamine, it is these elements of her disease of the mind which I consider had the greatest impact on her mental state at the time. I am therefore confident that on the balance of probabilities Ms Tui was unable to reason as the moral wrongfulness of her actions and would have a defence of insanity.

[18]   Similar conclusions are reached by Dr Saheb. Dr Saheb concludes that Ms Tui was fit to plead, and understood the nature and quality of her actions, but that she was insane under s 23. Dr Saheb concludes:

On the day of the index offence before being taken into custody Ms Tui showed a level of insight into her mental health. She contacted her keyworker, and asked for help after telling her that she had hurt her mother. Whilst in custody she openly talked about hearing voices, being involved with mental health services and not taking her medication for a couple of years. After being formally charged, she stated she was “fuck’n insane”. After several years of poor engagement with mental health services and non-compliance with medication, it would be somewhat unusual for someone with chronically poor insight to suddenly agree to their mental health needs. Although I note on admission to hospital she did not accept she was mentally ill, and did not wish to take mental health treatment.

Ms Tui’s delusional system only partially excuses her offending. That is she felt her mother was a bad mother, was treating her daughter badly and was causing her to experience voices she did not like. This would not in itself be sufficient moral grounds to kill her mother. Her use of methamphetamine may have led to increasing her psychotic experiences, but also causing her behaviour to be more disinhibited.

However Ms Tui was disorganised in her thinking, and was overwhelmed by intense and frequent voices telling her to kill her mother. She was emotionally disconnected from her thoughts and actions, and believed she was “fixing” her mother by sending her to heaven, and it was “the humane thing to do”. Therefore it is my opinion on the balance of probability that Ms Tui was incapable of knowing her actions were morally wrong.

[19]   I accept these conclusions. For these reasons, I found Ms Tui not criminally responsible on account of insanity on the basis that she was suffering from a disease of the mind to an extent that she did not know that her action of strangling her mother until she died was morally wrong having regard to community standards of right and wrong pursuant to s 23(2)(b) of the Crimes Act.

Disposition

[20]   Section 24 of the Criminal Procedure (Mentally Impaired Persons) Act 2003 provides:

24Detention of  defendant found unfit to stand trial or insane as  special patient or special care recipient

(1)When the court has sufficient information on the condition of a defendant found unfit to stand trial or acquitted on account of his or her insanity, the court must—

(a)consider all the circumstances of the case; and

(b)consider the evidence of 1 or more health assessors as to whether the detention of the defendant in accordance with one of the orders specified in subsection (2) is necessary; and

(c)make one of the orders referred to in paragraph (b) if it is satisfied that the making of the order is necessary in the interests of the public or any person or class of person who may be affected by the court’s decision.

(2)The orders referred to in subsection (1) are that the defendant be detained—

(a)in a hospital as a special patient under the Mental Health (Compulsory Assessment and Treatment) Act 1992; or

(b)in a secure facility as a special care recipient under the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003.

…

[21]   The psychiatrists addressed the appropriate orders that should be made in their reports. Dr Saheb reported that the Court was most likely to find that Ms Tui’s mental state required a finding that she required treatment as a special patient under s 24(2)(a) of the Criminal Procedure (Mentally Impaired Persons) Act. Dr Barry-Walsh also expressed a view that it was in her interests and the interests of the community and family that she be subject to such a disposition under that section. He gave further evidence at the hearing before me.

[22]   Before I can make an order under s 24(2) I must be satisfied that the making of the order is necessary in the interests of the public or any person or class of person affected by the Court’s decision. The standard of necessity is a high threshold given the serious consequences of such an order.2 The Court of Appeal has explained:3

In determining whether it is necessary to make an order under s 24(2), the Court undertakes a judicial assessment that is wider in some respects than the

2      M (CA819/11) v R [2012] NZCA 142, (2012) 28 FRNZ 774.

3      At [7] and [8].

medical assessments made by health assessors. It must determine whether an order under s 24(2) is necessary in the interests of the public. The interests of the public in this context are twofold. First, there is the need to be protected from further offending by the offender. The longer term public interest, and one that the offender obviously shares, is to ensure that the offender is managed and treated in a manner best calculated to achieve the ultimate goals of rehabilitation and reintegration into the community.

The Court must therefore take into account both the immediate and long term risks that the offender poses, as well as the need to comprehensively manage and treat any medical and/or personality issues that he or she presents. In this way the interests of the public will be properly protected. …

[23]   If, after considering the matters in s 24(1)(a) and (b), the Court is not satisfied that an order under s 24(2) is necessary, under s 25(1) the Court must deal with the defendant––

(a)by ordering that the defendant be treated as a patient under the Mental Health (Compulsory Assessment and Treatment) Act 1992; or

(b)by ordering that the defendant be cared for as a care recipient under the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003; or

(c)if the person is liable to be detained under a sentence of imprisonment, by deciding not to make an order; or

(d)by ordering the immediate release of the defendant.

[24]   Orders under s 24(2)(b) and s 25(1)(b) are not relevant to Ms Tui’s circumstances as she does not suffer from intellectual disability. It follows that there are three possible options in respect of Ms Tui. The first and most restrictive option is an order that Ms Tui be detained as a special patient under the Mental Health (Compulsory Assessment and Treatment) Act 1992 (s 24(2)(a)). Such an order involves indefinite detention and involves decisions being made by the Minister of Health in consultation with the Director of Mental Health. The Minister for Health determines how long the special patient order is to remain in force,4  and long-term

4      M (CA856/2013) v R  [2014] NZCA 280 at [9], citing M (CA819/2011) v R  [2012] NZCA 142,

(2012) 28 FRNZ 773 at [11].

community leave will only be granted if two medical practitioners certify that the patient is fit to be absent from hospital.5

[25]   If a s 24 order is not considered necessary, the Court can order that person instead be treated as a patient under the Mental (Compulsory Assessment and Treatment) Act 1992, pursuant to s 25(1)(a). This can involve an inpatient or community treatment order. There will be ongoing treatment under the control of a responsible clinician. The order will be in force for six months unless the Court extends the order on the application of the responsible clinician.6 The responsible clinician may order a release of the patient.7 Should changes in the patient’s condition necessitate it, the responsible clinician may order the patient be treated as an inpatient for up to 14 days or be reassessed.8

[26]   They key difference between the orders accordingly relates to the circumstances which regulate the release of the defendant and the terms and conditions that regulate any release into the community. A special patient order involves more restrictive requirements that is accordingly more protective of the community. The third option is to order the immediate release of the defendant. That option is not realistically open in the present case.

Assessment

[27]In his initial report Dr Barry-Walsh said:

[Ms Tui] has a long history of threats and physical violence against those she incorporates into her psychotic system. I believe that it is in her interests and in the interest of the community and family that if she is found not criminally responsible on account of insanity she be subject to disposition as a special patient under section 24 of the [Criminal Procedure (Mentally Impaired Persons) Act].

[28]   Dr Barry-Walsh gave evidence expanding on the view provided in the report. He explained that Ms Tui continues to have delusional beliefs, that include beliefs that pose a risk to others, particularly family members. That is so notwithstanding her

5      M (CA856/2013) v R, above n 4, at [9].

6      Mental Health (Compulsory Assessment and Treatment) Act 1992, ss 33 and 34.

7      Section 35(1).

8      Section 29(3).

treatment with clozapine, which she had been on some time before he had interviewed her. The delusional and harmful beliefs were primarily focused on her mother, but not exclusively so. His evidence was that a risk to the community, particularly other family members, persisted.

[29]   Dr Barry-Walsh also explained the practical difference between a decision to make her a special patient rather than an ordinary patient. Apart from the more restrictive regime in relation to release, there are more extensive controls in relation to conditions that could apply in the community on any such release. He gave as an example of conditions relating to the use of elicit drugs, and potentially even alcohol, and the ability to recall a patient in breach of conditions. He also referred to the recent legislative changes which allow registered victims to be informed of relevant decisions in relation to release. Ms Clarke confirmed that family members were so registered. Overall, it is a much more controlled regime. Dr Barry-Walsh considered it necessary not only for the protection of the public, but also in the best interests for Ms Tui that she be subject to this more restrictive regime.

[30]   For Ms Tui Mr Keegan said that he had spoken with her and explained the differences between the two types of order, and that there was no opposition to an order being made that she be made a special patient.

[31]   I accept Dr Barry-Walsh’s views, which are consistent with the views expressed by Dr Saheb. I consider it necessary for the protection of the public, and particularly Ms Tui’s family that she be made a special patient.

[32]   For these reasons I determine that Ms Tui be made a special patient under the Mental Health (Compulsory Assessment and Treatment) Act 1992 in accordance with s 24(2)(a) of the Criminal Procedure (Mentally Impaired Persons) Act 2003.

Cooke J

Solicitors:

Crown Solicitor, New Plymouth P M Keegan for Defendant