R v Uerata

[2013] NZHC 2342

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CRI-2010-088-001581 [2013] NZHC 2342

THE QUEEN

v

REO RANGIPOHEWA UERATA

Hearing:                   9 September 2013

Appearances:           M B Smith for Crown

D J Blaikie for Defendant

Judgment:                9 September 2013

ORAL JUDGMENT OF VENNING J

Solicitors:           Crown Solicitor, Whangarei

Copy to:            D J Blaikie, Kaikohe

R v UERATA [2013] NZHC 2342 [9 September 2013]

[1]      The defendant, Reo Uerata, is charged with one count of wounding with intent to cause grievous bodily harm, one count of assaulting a police officer in execution of her duty, one count of refusing a blood specimen and one count of disqualified driving. The incidents occurred on 19 February 2010 at Whangarei.

[2]      Through counsel Mr Uerata has indicated he wishes to enter a plea of not guilty on the grounds of insanity to those charges.

[3]      The effect of s 23 of the Crimes Act 1961 is that every person is presumed sane at the time of doing any act until the contrary is proved.   Section 23 also provides that no person can be convicted of an offence by reason of any act done when labouring under a disease of the mind, to such an extent as to render that person either incapable of understanding the nature and quality of the act involved or of knowing that the act was morally wrong having regard to commonly accepted standards of right and wrong.

[4]      Under the Criminal Procedure (Mentally Impaired Persons) Act 2003 (the Act) a Judge sitting alone may now make a finding of insanity without the need for a jury trial in certain circumstances.  Section 20(2) of that Act provides that:

(a)      if  the  defendant  indicates  that  he  intends  to  raise  the  defence  of insanity;  and

(b)the Crown agrees that the only reasonable verdict is not guilty on account of insanity;  and

(c)      the Judge is satisfied, on the basis of expert evidence, that the accused was insane within the meaning of s 23 of the Crimes Act at the time of the commission of the offence, the Judge must record a finding the defendant is not guilty on account of his insanity.

[5]      The first two requirements have been satisfied in this case.  It is now for the

Court to make a determination as to the third.  To do so it is necessary to put the

matter in perspective and refer to the background to the offending as summarised in the summary of facts put before the Court.

[6]      Mr  Blaikie  has  confirmed  previously  the  defendant’s  acceptance  of  the summary and of the incidents.  On 24 November 2008 the defendant appeared in the Whangarei District Court and was disqualified from driving for two years.   Just before midnight on 19 February 2010 he was driving on Kamo Road, Whangarei. The police patrol observed the car he was driving weaving and attempted to stop him.  The defendant drove into a private driveway.  When the defendant was spoken to by the police he showed signs of having recently consumed alcohol.   He was required to accompany Constable White to the Whangarei police station for further tests.  Once in the police vehicle the defendant became agitated and very aggressive. He made a number of verbal threats to the constable.  He was then arrested for those threats and become more aggressive.

[7]      The female officer, Constable White, asked for assistance from her male partner to handcuff the defendant.  The male policeman placed one handcuff on the defendant.   While attempting to place the  other handcuff on the defendant, the defendant became very aggressive.  He got out of the police car and starting fighting the officers.  A struggled ensued in which the female officer received grazing to her arm and the male officer received bite marks to his arm, hand and face.  Mr Uerata bit the lower lip of the male officer, removing over half of his lower lip and half of his lower face before spitting this out on the ground.   The defendant was finally pepper sprayed by the female officer but this had no effect.  He was only subdued when  members of the  public intervened.    He  was  then transported  back  to  the Whangarei Police Station.   The defendant became very aggressive and agitated. Although  initially  agreeing  to  provide  a  sample  at  the  police  station  when  the medical officer arrived he refused to allow the sample to be taken.

[8]      As  a result  of the assault  the male police officer received serious  facial injuries.  The lip and part of his face were not able to be re-attached.  He required ongoing plastic surgery.  The female officer received grazing to her arms and was emotionally affected by the incident.

[9]      There has been a lengthy procedural history to the defendant’s appearances before this Court on these charges.  For present purposes it is sufficient to refer to the formal steps in the process.   On 7 March 2011 there was a s 14 hearing before Heath J.1    The Judge recorded that on the basis of the psychiatric reports he was satisfied Mr Uerata had a psychiatric disorder of the schizophrenia paranoid type. On the basis of the opinions of the experts before the Court at that time the Judge

was satisfied that the defendant was not, at that time, presently mentally impaired and was fit to stand trial.  He directed the matter proceed to trial.

[10]     However,  before   a  trial  could  be  held  the  defendant’s  mental  state deteriorated again.   Further assessments were carried out.   A further hearing was conducted before Brewer J.2   On the basis of the information he had before him on 7

September 2011, Brewer J concluded the defendant was mentally impaired.   The defendant’s mental condition had fluctuated but, since the hearing before Heath J, and largely as a result of the stress the defendant found increased as the trial date became nearer, he had relapsed into a psychotic state, such that while he would have been able to participate in the trial process, that participation on the most optimistic assessment would not have been to a proper or fair extent.3   Brewer J therefore found him unfit to stand trial and directed that he be subject to an order pursuant to s

24(2)(a)  of  the Act  and  detained  as  a  special  patient  under  the  Mental  Health

(Compulsory Assessment and Treatment) Act 1992.

[11]     Following  that  hearing  and  the  detention  and  treatment  the  defendant’s medical state then improved to the extent that he was considered no longer unfit to stand trial.  On 28 August 2012 the Attorney-General issued a certificate pursuant to s 31(2)(a) of the Act directing that the defendant be brought before the Court for trial.

[12]     Since then Dr Chaplow, Consultant Psychiatrist, has assessed the defendant, primarily for the purpose of considering whether the defence of insanity was available.  On the basis of his initial report of 29 November 2012 and supplementary

report of 26 August 2013 Dr Chaplow’s conclusion is that, at the material time, the

1      R v Uerata HC Whangarei CRI-2010-088-1581, 7 March 2011.

2      R v Uerata HC Whangarei CRI-2010-088-1581, 7 September 2011.

3 At [9].

defendant suffered from active (but undiagnosed and untreated) symptoms of paranoid schizophrenia and, on the balance of probability, was legally insane, having a ‘disease of the mind’ and was unaware of the moral wrongfulness of his actions at that time.

[13]     In light of those reports Mr Smith has confirmed that the Crown accepts that a finding of not guilty by reason of insanity is the only reasonable verdict in this case.  The issue for the Court is whether it can be satisfied that the defendant was insane within the meaning of s 23 at the time.  As indicated in Dr Chaplow’s report and his evidence, that test is to be satisfied on the balance of probabilities.

[14]     The relevant provision of s 23 of the Crimes Act 1961 provides:

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

[15]     In determining these issues the Court may have regard to s 23(3) which provides:

Insanity before or after the time when he did or omitted the act, and insane delusions, though only partial, may be evidence that the offender was, at the time when he did or omitted the act, in such a condition of mind as to render him irresponsible for the act or omission.

[16]     In the present case it is clear on the basis of the medical evidence before me, and confirmed by Dr Chaplow in his oral evidence this morning, that Mr Uerata was suffering from a disease of the mind, namely chronic schizophrenia of the paranoid type as at the date of this offending in February 2010.  I have had the opportunity to consider the several previous reports from highly qualified and experienced psychiatrists that raised the issue of insanity but more particularly I have had the benefit of considering in full Dr Chaplow’s most recent reports and his evidence this morning.   All of the expert medical evidence confirms the diagnosis of paranoid schizophrenia.

[17]     The issue is whether the disease of the mind was such as to render  the defendant either incapable of understanding the nature and quality of his actions or, alternatively, of knowing that the act was morally wrong.  As noted, that is a matter which must be satisfied on the balance of probabilities, the onus being on the defendant.

[18]     I refer briefly to excerpts from Dr Chaplow’s report.   It appears from the family history that as early as when aged seven or eight the defendant experienced strange or paranormal phenomenon.  He heard voices that others did not hear. At the age of 13 or 14 he became unwell.  He was x-rayed and staples were found in his back.  When he went home elders prayed over him.  He heard wailing and following that he came right.  Until the age of 16 or 17 the defendant considered that what he was experiencing was quite normal and that others could see and hear things also. He often would hear a voice instructing him to behave in a certain way, believed he could  read  other people’s  minds  and  at  times  the voices  inside  his  heard  were ordering him to kill himself.   He made a number of serious suicidal attempts.   In

1997 he slashed his left wrist to the extent that he severed his tendons.  In July 2010 he attempted to hang himself.

[19]     The defendant’s history with local mental health services has been ongoing. In 2003 he was initially seen by a crisis team and admitted several days later.  He was diagnosed as having an ‘Adjustment Disorder with Disturbed Mood’.   It was noted he had problems with alcohol and drugs which led to poor impulse control and a tendency towards violence.   In June 2005 he was admitted because of suicidal intent at the time.  There was a diagnosis of either “Agitated Depression’ or ‘Drug- Induced Psychosis’.   He was twice admitted in 2006, again because of suicidal impulses.    He  was  admitted  under  the  Mental  Health Act  for  three  weeks  and diagnosed as having ‘Amphetamine withdrawal’.

[20]     In August 2010 the defendant was admitted because of suicidal ideations.  He was diagnosed at that time by Dr Humberstone as ‘treatment resistant Paranoid Schizophrenia’ with a long history of deterioration socially, and a propensity to self- medicate with drugs and alcohol.   He was tormented with interrupted sleep, continually had self-doubt and suicidal intention.   He heard voices both good and

bad.  He had delusions concerning the police and believed he was being continually watched by police.

[21]     Dr Chaplow recites from Dr Humberstone’s report as follows:

Uerata has a clear treatment resistant paranoid schizophrenia characterised by persecutory delusions, delusions of reference, auditory hallucinations and deterioration in his expected social functioning.    His illness was misdiagnosed because of difficulty in eliciting his full range of psychotic experiences and because of misinterpreting some of his psychotic based distress as being related to a cluster B personality structure.  It is clear that Reo does not have personality disorder.  Intermittent use of amphetamines over the period of 2005-2006 also contributed to a delay in diagnosis.

The impact of this has been that Reo has lived with untreated psychosis for many years and is not been functioning to what would be his expected potential.   His symptoms have always included persecutory delusions and have frequently involved the police, at the time of the offence his untreated psychosis had a clear impact on what unfolded.

[22]     In the conclusion to his report in November 2012 Dr Chaplow confirmed that he considered the diagnosis was uncontentious.  His primary diagnosis was Chronic Schizophrenia of Paranoid type.   Good progress was being made on current medication.  However, the defendant remained fragile and vulnerable and subject to relapse.

[23]     In  terms  of  the  considerations  under  s  23  of  the  Crimes Act  it  was  Dr Chaplow’s opinion that the defendant probably knew the nature and quality of his actions at the time of the incident.

[24]     Dr Chaplow also considered the third limb, whether or not the defendant was aware his actions were morally wrong.  Dr Chaplow considered the position was not clear.  He noted the history of psychosis before and after the incident.  There was also a history of alcohol consumption and the history of stress, fear, and auditory hallucinations accompanied by panic, paranoia and fear at the time of the incident. He also noted the spray to the defendant’s eyes, his temporary blindness and, on the defendant’s account, blows to his head.  Dr Chaplow considered that the finding of insanity might well be influenced or determined by the s 23 consideration, namely the defendant’s previous history of insanity.

[25]     In preparation for trial Dr Chaplow has reviewed the defendant’s case and provided an updated report.  In that report he has confirmed that his final opinion is that at the material time on 19 February 2010 the defendant suffered from active (but undiagnosed and untreated) symptoms of paranoid schizophrenia and, on the balance of probability, was legally insane, and was unaware of the moral wrongfulness of his actions at the time.

[26]     While acknowledging a definitive opinion on the defendant’s cognitive status in the middle of the incident was difficult, Dr Chaplow said in his evidence this morning that it was highly probable that the defendant had been clinically insane for some years preceding the incident.  He also gave evidence that a disease of the mind of  this  kind  tends  to  worsen  with  every outbreak,  particularly if  not  originally assessed and treated.  There was a history of that occurring in this case.  Dr Chaplow was satisfied that the incident the defendant was involved in would have been a major stressor to the defendant which appears to be confirmed by the agitated state of the defendant recorded on CCTV cameras at the police station which Crown counsel raised with the Doctor.

[27]     As noted, on balance of probabilities, Dr Chaplow was of the view that the defendant would not have been able to understand his actions were morally wrong given his longstanding paranoia.  It was likely he was so deluded that his ability to consider what was morally right and wrong at the time was very compromised given that background and the stressors facing the defendant at that time of the incident.

[28]     On the basis of Dr Chaplow’s evidence in particular, but also having regard to

the previous reports on the file, I am satisfied that at the time of this incident on 19

February 2010, the defendant was labouring under a disease of the mind and that, while he may have understood the nature and quality of his acts at the time, the disease of the mind was such that he was incapable of understanding or knowing that what he was doing was morally wrong having regard to the commonly accepted standards of right and wrong.

[29]     In  coming  to  that  conclusion  I take  into  account  the  long  standing  and previous history of the defendant’s mental state as disclosed and discussed in the medical reports before the Court.

[30]     I therefore make a finding that Mr Uerata is not guilty of the counts that he faces on account of insanity.

[31]     Following the determination that Mr Uerata was not guilty of the charges before the Court on account of insanity at the time of the offending the Court is required to make inquiries to determine the most suitable method of dealing with him in light of that finding.4

[32]     In this case the disposition hearing has been able to proceed immediately following the finding of insanity.   The Court has had further evidence from Dr Chaplow on the issue and has also heard further evidence from Dr Kelly, who is the Consultant Psychiatrist leading the current treatment for Mr Uerata.

[33]     Both  of  them  have  given  further  evidence  directed  at  the  appropriate disposition order under ss 23 to 25 of the Act.  It is the opinion of both of them that in this case an order pursuant to s 25(1)(a) of the Act is appropriate.   However, before concluding that is the appropriate order I address the requirements the Court is required to address.

[34]     Under s 24 of the Act the Court is directed to consider all the circumstances of the case, and consider the evidence of one or more health assessors as to whether detention  of  Mr  Uerata  in  accordance  with  s 24(2)  is  necessary.    The  Court  is directed to make an order under s 24(2) 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.

[35]     I note that following the hearing on 7 September 2011, Brewer J considered that at that time, on the basis of the evidence before him, it was necessary for an

order under s 24(2)(a) to be made detaining the defendant as a special patient.

4      Criminal Procedure (Mentally Impaired Persons) Act 2003, ss 23–25.

[36]     However, as noted, there have been a number of significant developments in this case since then.  Brewer J’s order was made in the context that at the time the defendant was unfit to stand trial.  The defendant was then subject to detention for a time in Mason Clinic but since October last year has been receiving treatment within the community subject to and under the direction of Dr Kelly.   That led to the certificate I referred to earlier, the finding that the defendant is fit to stand trial and then in turn to the hearing this morning.   That  improvement in the defendant’s condition has come about as a consequence of the treatment that he has received.

[37]     In Dr Chaplow’s opinion, while the defendant is still suffering from mental illness (and effectively that illness is a chronic residual illness, which will require ongoing medication), it was not necessary for the safety of the public or even the defendant himself that he be detained under s 24(2)(a) as a special patient at this time, particularly given the response to treatment within the community under Dr Kelly’s care.

[38]     Dr Chaplow was reinforced in that opinion by the defendant’s response to his conditions of bail and treatment since October last year.  In Dr Chaplow’s opinion an order pursuant to s 25(1)(a) order that Mr Uerata be treated as a patient under the Mental Health (Compulsory Assessment and Treatment) Act 1992 is the appropriate order to address the issues for the Court in this case.

[39]     In addition to Dr Chaplow the Court has heard from Dr Kelly who has been treating the defendant since October last year.   Dr Kelly referred to a number of positive features  that  he has  observed  over that  period  of treatment.    Dr Kelly confirmed the strong support Mr Uerata has at present.  Mr Uerata has particularly strong support from his mother.  His extended whanau now also have quite a good understanding of his condition and he receives further support from them. Importantly,  on  a  formal  basis,  the  community  health  team  provides  extensive support of Mr Uerata by weekly contact.

[40]     Dr Kelly then noted that the team treating Mr Uerata had the ability to monitor his blood  and  urine levels  and reports.   He also noted the defendant’s

medication was provided in a daily pack basis which made it easier for Mr Uerata to take the appropriate medication.

[41]     Dr Kelly considered it important that, since Mr Uerata’s detention under s 24(2)(a) there was a significant difference in that his treatment programme has now been more accurately assessed.   The treatment that the defendant now received, including the medication, has had a positive effect on Mr Uerata’s mental state and continues to do so.  The other important feature is that Mr Uerata himself has made a commitment to his treatment programme and to abstain from alcohol and drugs which Dr Kelly considers to be of fundamental importance to the defendant maintaining his mental health state.  Again the defendant’s ability to do so is reinforced by the support of his mother particularly but also of the wider whanau and the community mental health team.

[42]   I am satisfied, having heard from the two consultant psychiatrists and particularly Dr Kelly in this instance, that matters have moved on since Mr Uerata was before the Court in September 2011.  They have moved on in a positive way for Mr Uerata so that, at this time, there is no need for this Court to make an order pursuant to s 24(2) detaining him as a special patient.

[43]     Having heard from the expert consultant psychiatrists I am satisfied that the appropriate order is one under s 25(1)(a) that Mr Uerata be treated as a patient under the Mental Health (Compulsory Assessment and Treatment) Act 1992.   I make an

order accordingly.

Venning J