R v Uerata HC Whangarei CRI-2010-088-1581

[2011] NZHC 1032

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CRI-2010-088-1581

THE QUEEN

v

REO UERATA

Hearing:         7 September 2011

Counsel:         M B Smith for Crown

D J Blaikie for Accused

Judgment:      7 September 2011

JUDGMENT OF BREWER J

SOLICITORS

Marsden Woods Inskip & Smith (Whangarei) for Crown

Douglas Blaikie (Kaikohe) for Accused

R V UERATA HC WHA CRI-2010-088-1581 7 September 2011

[1]      Mr Uerata has been committed for trial on one count of wounding with intent to do grievous bodily harm, one of assault with intent to obstruct a police officer in the execution of her duty, one of refusing to permit a blood specimen to be taken having been, on at least two previous occasions, convicted of an offence under the blood/breath alcohol provisions of the Land Transport Act 1998, and driving a motor vehicle whilst disqualified from holding or obtaining a driver’s licence.

[2]      These  charges  arise  out  of  an  incident  that  occurred  at  Whangarei  on

19 February 2010.  Put briefly, two police officers arrested the accused having seen him driving erratically.   The evidence for the Crown would be that the accused became agitated, very aggressive and made threats.  The summary of facts (which at this stage is allegation) describes what happened next:

The male officer placed one handcuff on the defendant.  While attempting to place the other handcuff on, the defendant became very aggressive and got out of the Police vehicle and started fighting the arresting officers.

A massive struggle ensued in which the female officer received grazing to her arm and the male received bite marks to his arm, hand and face.

The defendant was so aggressive he bit the lower lip of the male officer, removing over half of his lower lip and part of his face before spitting this out on the ground.

[3]      After Mr Uerata was committed for trial an issue arose about his fitness to plead.  That matter came before Heath J on 7 March 2011.1   Heath J first considered s 9 of the Criminal Procedure (Mentally Impaired Persons) Act 2003 (the Act), which provides that before a Court may make a finding as to whether a defendant is unfit to stand trial it must first be satisfied on the balance of probabilities that the evidence against the defendant is sufficient to establish the charges.

[4]      Heath J found that there is sufficient evidence on which the Crown could establish that Mr Uerata did the necessary acts required to constitute each of the offences with which he has been charged.  Therefore, in terms of s 9 the standard of proof had been met.  I interpolate here that I reached the same view independently when preparing for this hearing.

[5]      Heath J then went on to make the s 14 determination using the steps set out by the Court of Appeal in R v McKay.2   He held that Mr Uerata was not at that stage mentally impaired and was fit to stand trial.

[6]      Subsequently, Mr Uerata’s mental health deteriorated.   His trial had to be adjourned.  By minute made on 12 August 2011, Heath J found that it was necessary to proceed to another hearing under s 14 of the Act.  He scheduled that hearing for this morning, with the updated health assessors’ reports to be taken as evidence for the hearing.  Counsel were to give notice if cross-examination of the health assessors were required.  Neither counsel did so and they have confirmed that no challenge is made to their reports.

[7]      Heath J also directed the Registrar to convene a telephone conference before him during the week of 29 August 2011 so as to explore with counsel the possibility of  a  contemporaneous  disposition  hearing.     For  some  reason  the  telephone conference was never convened.

[8]      When the matter was called before me this morning both counsel were of the view, having read the affidavit of Dr Seth sworn on 8 August 2011 and appending his report of 20 July 2011 and the affidavit of Dr Duff sworn on 25 July 2011 and attaching her report of 21 July 2011, that the accused is unfit to stand trial.  I had also read the reports and had come, provisionally, to the same view.  Having heard from counsel, and being satisfied that the steps set out by the Court of Appeal in R v McKay have been taken, I made and recorded a finding that the accused is mentally impaired and unfit to stand trial.

[9]      My reasons, based on the reports of the two health assessors, are as follows:

[a]       Mr Uerata is clearly mentally impaired.  He has a well documented history of paranoid schizophrenia.

[b]       His mental condition has fluctuated.   He had not been subject to psychiatric treatment prior to the incident from which the charges

against him arise.  Since that date he has been diagnosed and treated. Initially the course of treatment was so successful that Heath J, based on the uncontested reports of the health assessors at the time, was able to find him fit to stand trial.  Since then, and largely as a result of the stress  the accused finds  increasing as  the trial  date nears, he has relapsed into a psychotic state in which, although he would to an extent be able to participate in the trial process, that participation on the most optimistic assessment would not be to a proper or fair extent.

[10]     Counsel then advised me that they wished to proceed directly to a disposition hearing.  Dr Seth was in Court and available to give evidence on the inquiry that the Court must order pursuant to s 23(1) of the Act.

[11]     Dr Seth was called by the Court to give evidence to assist in determining the most suitable method of dealing with Mr Uerata under s 24 or s 25 of the Act.

[12]     Dr Seth’s opinion is that under all of the circumstances of the case the most suitable method of dealing with Mr Uerata is an order pursuant to s 24(2) of the Act that he be detained in a hospital as a special patient under the Mental Health (Compulsory Assessment and Treatment) Act 1992.

[13]     The basis for Dr Seth’s opinion is the seriousness of the alleged offending; the fluctuations of the illness; the risk Mr Uerata poses, particularly to himself but also to others; and the optimal environment for treatment which special patient status would allow.

[14]     Mr Smith, for the Crown, supports Dr Seth’s opinion and submits that on the evidence the Court can be satisfied that the making of the order is necessary in the interests of the public, and indeed in the accused’s interests.3

[15]     Mr Blaikie for Mr Uerata, having had time to reflect on Dr Seth’s evidence and to take instructions from his client and from his client’s parents, no longer resists an order under s 24(2)(a) and concurs with Dr Seth’s opinion.

[16]     In my view an order under s 24(2)(a) is necessary in all the circumstances.  I accept Dr Seth’s opinion that the fluctuating nature of Mr Uerata’s condition means that it would be difficult to manage his condition safely other than in the secure and ordered existence of a hospital.   Dr Seth, while saying that the major risk that Mr Uerata presents is to himself, says there is also a risk to others if his condition is not monitored and treated in the most efficacious way.

[17]     In a situation in which there is a background of (alleged) serious violent offending,  a firm  diagnosis of paranoid schizophrenia and  a treatment  resistant, fluctuating  condition,  I  find  that  the  treatment  regime  possible  if  Mr Uerata  is detained as a special patient is necessary.

[18]     Accordingly, I make an order pursuant to s 24(2)(a) of the Act that Mr Uerata be detained in a hospital as a special patient under the Mental Health (Compulsory Assessment and Treatment) Act 1992.

[19]     Mr Blaikie, in cross-examination of Dr Seth, raised the issue of whether it would be desirable to stay the proceedings pursuant to s 27(1) of the Act.  He did not raise this matter in his submissions to me, but I think that I should address it.

[20]     In my view, I should consider this issue primarily against the evidence of the state of Mr Uerata’s mental health at the time that the incident giving rise to the charges occurred.   Clearly he was affected by the then undiagnosed paranoid schizophrenia from which he was suffering.  But whether or not he was criminally responsible for his actions at that time is not clear.   The psychiatrists point to the possibility of insanity at the time but there are certainly contraindications as I read the reports.   I consider that I do not have sufficient grounds for eliminating the possibility of criminal liability for Mr Uerata at this stage.  I consider that it would be better to allow his subsequent history as a special patient to determine ultimately whether he actually faces these charges in Court.  Accordingly, I will not make an order to stay the proceedings.

[21]     Finally, Mr Blaikie has applied for name suppression.   The basis for the application  is  understandable.     It  relates  to  the  embarrassment  inherent  in  a

proceeding such as this  and also the effect that anxiety resulting from  possible

publication of Mr Uerata’s name could have on his mental health.

[22]     Mr Smith advises me that in all probability Mr Uerata’s name has already been published.  But, in any event, and with sympathy for Mr Uerata’s position, and indeed that of his family, the case law on the need for open justice in circumstances

such as these is clear, and I must decline to give name suppression.

Brewer J