R v Yu

[2014] NZHC 2858

ORDER PROHIBITING PUBLICATION OF THE JUDGMENT AND ANY PART OF THE PROCEEDINGS (INCLUDING THE RESULT) IN NEWS MEDIA OR ON THE INTERNET OR OTHER PUBLICLY AVAILABLE DATABASE UNTIL FINAL DISPOSITION OF TRIAL

IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY

CRI 2013-042-1362 [2014] NZHC 2858

THE QUEEN

v

GUANZHI YU

Hearing:	10-14, 17 November 2014
Counsel:	J M Webber and A Mills for Crown B Daniell-Smith and M Vesty for Defendant
Judgment:	17 November 2014

ORALJUDGMENT OF THE HON JUSTICE KÓS (Fitness to continue to stand trial)

[1]      Ms Yu is presently for trial before me on one charge of murder and one charge of attempted murder.

[2]      On 11 December 2013 after hearing evidence from Drs Miller and Galvin, Judge Zohrab held that Ms Yu was mentally impaired.   But, at that point at least, fit to stand trial.  Those were the conclusions reached by the two doctors.

[3]      Trial commenced before me and a jury on Monday 10 November 2014. Although Ms Yu has (at least to my observation) been somewhat remote, I am informed by counsel that she has been able to follow the process and give adequate

instructions.

R v YU [2014] NZHC 2858 [17 November 2014]

[4]      That changed on Friday 14 November 2014.

[5]      At 10.00 am Mr Daniell-Smith advised me that Ms Yu was in a worse state in the morning.   Nurse Kendall Brown reported to me in chambers that Ms Yu was agitated, unable to make eye contact and was clingy.  Counsel accepted however that the trial could continue despite that state.

[6]      At 10.42 am Ms Yu became agitated and a medical break was taken.  The next Crown witnesses were witnesses whose statements were read.  Their statements had been translated into Mandarin and Ms Yu had already read them.  Those were witnesses McGee and Lianching.  At 11.27 am however I became concerned after observing Ms Yu’s behaviour (which manifested itself in grandiose hand motions and laughter) that Ms Yu’s behaviour was not only disrupting the jury but also raised a concern as to her continued fitness to stand trial.

[7]      Following discussion with counsel, I directed that Ms Yu be reassessed by Drs Galvin and Miller and that they report to the court on Monday as to whether she is fit to continue to stand trial.  Specifically I was concerned as to whether she was capable of understanding the trial procedure as it continued and whether she was capable of giving instructions to her counsel.

[8]      Drs Miller and Galvin travelled to Nelson first thing this morning.  They met Ms Yu and an interpreter at about 8.30 am.  The doctors report, unanimously, that Ms Yu was now in a more comfortable state.  She reported that she had been very distressed at certain evidence on Thursday and had not slept that night.  On Friday morning she had found it difficult to concentrate on the evidence being given.

[9]      Drs Miller and Galvin went through aspects of the test for fitness to stand trial and concluded that Ms Yu was now capable of understanding the process and its implications, and giving instructions to counsel.  In particular, she now felt well and she had slept for the last three nights.  In the course of the meeting she appeared to them to be calm, collected, fluent and rational.  Supporting evidence was obtained by the doctors from the nursing staff at Nelson Hospital.  Dr Galvin had also spoken to nurse Kendall Brown.

[10]     Neither  doctor  considered  that  Ms  Yu’s  behaviour  was  feigned.    Such behaviour had been observed previously while she was in the hospital environment. Dr  Miller  considered  that  the  finger  motioning  was  likely to  be  evidence  of  a dissociated state.   She was unlikely to have been aware of that behaviour.   He considered the laughter was likely to be a response to extremely high anxiety levels. The one significant difference between the doctors is on that point.   Dr Galvin considered that that behaviour was likely to be a further but different exhibition of dissociation.

[11]     After hearing this evidence I heard submissions from counsel.  Both counsel accept that in the circumstances Ms Yu is fit to continue to stand trial.

[12]     I accept the evidence of Drs Galvin and Miller and counsel’s submissions.  I

accept Ms Yu is fit to continue to stand trial.

[13]     However there are going to need to be some changes to the way in which the trial continues.

[14]     Of particular concern to me is the possibility that Ms Yu may slip into a dissociated state without the Court being aware of that fact.  I asked counsel for their submissions on that, following a suggestion from Dr Galvin that Ms Yu may be better, in terms of stress, to continue to observe the trial from outside the Courtroom. Mr Daniell-Smith in particular is opposed to that proposal.  So, as it happens, am I.

[15]     I consider in the circumstances it is necessary for Ms Yu to remain in the Courtroom, and that the trial continues on as regular a basis as possible.   I accept Mr Daniell-Smith’s submission that it is important that we are all in a position to observe her behaviour.

[16]     I do require that the nurse attendant who is with Ms Yu, presently nurse Fitzsimmons, check with Ms Yu from time to time as to whether she is rational and not in a dissociated state.  If Ms Yu is, or is likely to be in such a state, the Court will adjourn and the hearing will not be able to resume then until we have (as it were) an all clear that Ms Yu is (as it were) back with us.  For the present purposes I cannot

think of any more effective way of monitoring the matter.  The nurse will have the assistance of one of the translation staff for the purposes of inquiry.   If the nurse considers that a break should be taken she has simply to signal that by standing and gaining my attention.  I will understand the significance of that and we will ask the jury to leave.

[17]     Dr   Miller’s   assessment   was   that   the   current   Court   hours   remained appropriate.   We will continue then to operate in the usual way, subject to the alteration just made regarding the input of the nurse attendant.

[18]     Finally, we will continue to monitor progress and confer in chambers at the beginning and end of each day as to the efficacy of these arrangements.

[19]     I  am  grateful  to  Drs  Miller  and  Galvin  for  their  urgent  attendance  this morning, and for their oral evidence.

Stephen Kós J

Solicitors:

Crown Solicitor, Nelson

Daniell-Smith & Co, Nelson for Defendant