Tuira v The the Queen

[2022] NZCA 394

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

 CA24/2021
 [2022] NZCA 394

BETWEEN	GAVIN JOHN TUIRA Appellant
AND	THE QUEEN Respondent

Hearing:	23 February 2022 Further submissions received 11 March 2022
Court:	Courtney, Peters and Cull JJ
Counsel:	Appellant in person JEL Carruthers for Respondent N P Chisnall as counsel assisting
Judgment:	24 August 2022 at 10 am

JUDGMENT OF THE COURT

AThe application for an extension of time is granted.

BThe application for leave to appeal is granted.

CThe appeal is allowed.

D    The order made under s 24(2)(a) is set aside and substituted with an order under s 25(1)(a).  We specify that the order is to be an inpatient order.  

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REASONS OF THE COURT

(Given by Courtney J)

Introduction

1. Gavin Tuira has struggled with poor mental health his whole life.  His engagement with mental health services dates back to the 1970s, and he has a longstanding diagnosis of treatment-resistant paranoid schizophrenia.  He also has a large number of previous convictions, including for violent and sexual offending.  In 2010 Mr Tuira was living in a boarding house in Hamilton.  He was suffering from delusions which caused him to believe that his relationship with the landlady, Ms H, was an intimate one.  Mr Tuira formed the view that Ms H had been unfaithful to him.  On 2 December 2010 he took a knife from the kitchen and went into Ms H’s bedroom.  He punched her at least three times, indecently assaulted her by attempting to pull her pyjama pants off, and threatened her with the knife.  He also threatened a second complainant, who had intervened upon hearing the commotion, with the knife.  Mr Tuira was charged with aggravated burglary, injuring with intent to injure, indecent assault and assault with a weapon. 

2. In 2012 Mr Tuira was found to be unfit to stand trial by Judge Ruth, and detained as a special patient under s 24(2)(a) of the Criminal Procedure (Mentally Impaired Persons) Act 2011 (CPMIP).[1]  In 2013, Mr Tuira was found to be fit to stand trial.  He was returned to prison for that purpose.  He pleaded guilty to the charges.  In 2014, Mr Tuira applied to vacate the guilty pleas, but this application was dismissed.[2]  He was sentenced to preventive detention with a minimum period of five years’ imprisonment.[3]  In 2017, however, Mr Tuira’s convictions were set aside on appeal and a retrial was ordered.[4]  In 2019, following a hearing in the District Court before Judge Cocurullo, Mr Tuira was again found to be unfit to stand trial.[5]  Judge Cocurullo made an order that he be detained as a special patient pursuant to s 24(2)(a) of CPMIP.[6] 

   [1]R v Tuira CRI-2010-019-10002, 13 February 2012 (Ruling 1 of Judge Ruth) [Decision of Judge Ruth] at [22].

   [2]R v Tuira DC Hamilton CRI-2010-019-10002, 10 October 2014 [Decision of Judge Gibson].

   [3]R v Tuira [2015] NZHC 429 [Sentencing decision].

   [4]Tuira v R [2018] NZCA 43 [Court of Appeal judgment].

   [5]Police…