Tuira v The the Queen

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.

____________________________________________________________________

REASONS OF THE COURT

(Given by Courtney J)

Introduction

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.
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 v Tuira [2019] NZDC 16432 [First decision of Judge Cocurullo].
[6]R v Tuira [2020] NZDC 13081 [Second decision of Judge Cocurullo].
Mr Tuira has therefore been detained, either as a special patient or as a prisoner, for over a decade. He seeks leave to appeal Judge Cocurullo’s decision finding him unfit to stand trial and the Judge’s order that he be detained as a special patient.
Mr Tuira’s appeal was filed approximately a year out of time. An extension of time was not opposed by the Crown except on the substantive merits. We grant the extension of time. Given Mr Tuira’s circumstances and the complex issues arising we grant leave to appeal.

Appellate jurisdiction and issues on appeal

Mr Tuira is self-represented. He raised a number of issues that concern him, including aspects of the police investigation and prosecution. These are not matters that arise from Judge Cocurullo’s decisions and are not amenable to being addressed in this appeal. However, the reason for Mr Tuira’s appeal is captured in his letter to the Court in support of the appeal:
I acknowledge most of my past offences – I wish that they didn’t happen as my life would’ve been different
I have been locked in a mental health ward for 12 years
I have never physically harmed anyone while I have been here
I have never been secluded
I am not a threat to anyone here or in the community
I don’t want to harm anyone, I just want to be free
…
… I don’t want to be here any longer. I feel that I have served such a long time for my offences.
The Court had the assistance of Mr Chisnall, for which we are grateful. With Mr Chisnall’s assistance, the following three grounds of appeal emerge:[7]
(a)Did the Judge err in finding that Mr Tuira was unfit to stand trial?
(b)Did the Judge err in making an order under s 24(2) of CPMIP?
(c)Has the period for which Mr Tuira could properly be detained as a special patient expired?
[7]In addition to initial written submissions and oral submissions at the hearing, counsel were granted leave to file further submissions, having regard to the way the oral argument developed.
The appeal against the finding of unfitness to stand trial was brought pursuant to s 16 of CPMIP, under which the appeal is treated as an appeal against conviction. However, it was agreed that, in respect of the other issues, the appeal is properly treated as brought under s 29, which provides that, for those found unfit to stand trial, an appeal against an order made under s 24(2) is to be treated as if it were an appeal against sentence.
For the reasons we come to, we have concluded that the second ground of appeal must succeed. As a result, and with no disrespect to counsel’s extensive submissions on the point, we find it unnecessary to consider the third ground of appeal.

The statutory context

As this Court noted in Nonu v R, it is a fundamental feature of our criminal justice system that only those who pass the threshold of being fit to stand trial should be subjected to the consequences of criminal charges.[8] Part 2 of CPMIP provides a scheme for managing those found to be unfit to stand trial. In Nonu the key principles underpinning this scheme were described as being: first, promoting fairness to a defendant by protecting his or her rights to a fair trial and to present a defence; secondly, promoting the integrity and legitimacy of the criminal justice system by only holding defendants accountable if they understand the reasons why they have been prosecuted, convicted and punished; and thirdly, enhancing society’s interest in having a reliable criminal justice system by not placing on trial defendants who, through lack of fitness, are unable to advance an available defence.[9]
[8]Nonu v R [2017] NZCA 170 at [24].
[9]At [26].
Section 4 of CPMIP defines “unfit to stand trial” as follows:
unfit to stand trial, in relation to a defendant,—
(a)means a defendant who is unable, due to mental impairment, to conduct a defence or to instruct counsel to do so; and
(b)includes a defendant who, due to mental impairment, is unable—
(i)to plead:
(ii)to adequately understand the nature or purpose or possible consequences of the proceedings:
(iii)to communicate adequately with counsel for the purposes of conducting a defence.
The factors identified in s 4 as indicating unfitness to stand trial broadly reflect criteria developed in earlier cases.[10] However, the approach taken to the assessment of fitness to stand trial is now more nuanced than a straightforward assessment of whether the defendant can perform these various functions. In Nonu it was said that:[11]
A defendant must also have the capacity to participate effectively in his or her trial. This involves an assessment of the defendant’s intellectual capacity to carry out relevant trial functions. The reason for the need to inquire into the defendant’s capacity to participate effectively in his or her trial is that the principles we have explained above are not honoured in cases where, for example, a defendant superficially appears to participate in his or her trial but in reality is, because of intellectual disability, nothing more than a bystander.
(Footnote omitted.)
[10]R v Pritchard (1836) 7 Car & P 303, (1836) 173 ER 135 (KB) at 135; R v Presser [1958] VR 45 (SC) at 48; and P v Police [2007] 2 NZLR 528 (HC) at [43].
[11]Nonu, above n 8, at [29].
A court may make a finding that a defendant is unfit to stand trial at any stage after the commencement of the proceeding up until the evidence is concluded.[12] Before making such a finding, the court must receive the evidence of two health assessors as to whether the person is mentally impaired.[13] If satisfied that the person is mentally impaired it must make a finding as to whether they are unfit to stand trial.[14]
[12]Criminal Procedure (Mentally Impaired Persons) Act 2003, s 7 [CPMIP].
[13]Section 8A(1).
[14]Section 8A(2).
If the court finds that the person is unfit to stand trial it must go on to decide whether, on the balance of probabilities, the evidence establishes that the defendant caused the act or omission that forms the basis of the offence with which they are charged.[15] If the court is not satisfied of this, it must dismiss the charge.[16] If, however, the court is satisfied as to the defendant’s involvement, it must deal with the person in accordance with subpt 3 of part 2.[17]
[15]CPMIP, ss 10–12.
[16]Section 13(2).
[17]Section 13(4).
Under subpt 3, s 23 requires the court to order inquiries to be made to determine the most suitable method of dealing with the person under ss 24 and 25, which provide alternative pathways.
Section 24 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.
(3)Before the court makes an order specified in subsection (2) (a), the court must have received evidence, under subsection (1) (b), about the defendant from at least 1 health assessor who is a psychiatrist.
Special patient status under s 24 signifies a category of persons whose behaviour warrants extraordinary precautions being taken in order to protect the public, while ensuring that optimal care and treatment is given to the person to assist their eventual reintegration into the community.[18] The threshold for making an order under s 24(2) that a defendant be detained “is that detention must be “necessary” in the interests of the public or those who may be affected by the Court’s decision”.[19] This threshold is recognised as high — in M (CA819/2011) v R, this Court described “necessary” as falling between expedient or desirable on the one hand and essential on the other.[20]
[18]Warren Brookbanks and Jeremy Skipworth “Reclassification and leave of special patients unfit to stand trial” [2015] NZLJ 215 at 215.
[19]R v Tui [2020] NZHC 2074 at [6].
[20]M (CA819/2011) v R [2012] NZCA 142, [2012] BCL 211 at [17], citing Environmental Defence Society Inc v Mangonui County Council [1989] 3 NZLR 257 (CA) at 260.
If the court is not satisfied that an order under s 24(2) is necessary, s 25 requires the court to make an alternative order. Section 25 provides:
25Alternative decisions in respect of defendant unfit to stand trial or insane
(1)If, after considering the matters specified in section 24(1) (a) and (b) concerning a defendant found unfit to stand trial or acquitted on account of his or her insanity, the court is not satisfied that an order under section 24(2) is necessary, 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.
(2)Before the court makes an order under subsection (1)(a), the court must be satisfied on the evidence of 1 or more health assessors (at least 1 of whom must be a psychiatrist) that the defendant is mentally disordered.
(3)Before the court makes an order under subsection (1)(b), the court must be satisfied on the evidence of 1 or more health assessors that the defendant—
(a)has an intellectual disability; and
(b)has been assessed under Part 3 of the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003; and
(c)is to receive care under a care programme completed under section 26 of that Act.
(4)In the exercise of its powers under subsection (1), the court may take into account any undertaking given by, or on behalf of, the defendant that the defendant will undergo or continue to undergo a particular programme or course of treatment.
An order under s 25(1)(a) is to be regarded as a compulsory treatment order for the purposes of the Mental Health (Compulsory Assessment and Treatment) Act 1993 (MHCAT) and the Judge must specify whether it is an inpatient or community treatment order.[21] Under MHCAT a compulsory treatment order can only be made if the person is “mentally disordered”. The term “mental disorder” is defined as:[22]
mental disorder, in relation to any person, means an abnormal state of mind (whether of a continuous or an intermittent nature), characterised by delusions, or by disorders of mood or perception or volition or cognition, of such a degree that it—
(a)poses a serious danger to the health or safety of that person or of others; or
(b)seriously diminishes the capacity of that person to take care of himself or herself;—
and mentally disordered, in relation to any such person, has a corresponding meaning
[21]CPMIP, s 26(1).
[22]Mental Health (Compulsory Assessment and Treatment) Act 1992 [MHCAT], s 2.
Finally, when a court makes an order under s 25 in respect of a defendant who has been found unfit to stand trial, it may order that the proceedings in which the finding was made are stayed. While the stay is in force the defendant cannot be charged again with the same offences that were the subject of the proceeding.[23]
[23]CPMIP, s 27.
In a practical sense, an inpatient order made under s 25(1)(a) will have a similar effect to an order made under s 24(2)(a) because under MHCAT an inpatient compulsory treatment order requires the continued detention of the patient in a hospital “for the purposes of treatment, and shall require the patient to accept that treatment”.[24] However, there are significant differences between detention under s 24(2)(b) and detention under s 25(1)(a). The main difference is how and when the detention can end.
[24]MHCAT, s 30(1).
Section 30 of CPMIP specifies the maximum period for which a person can be detained pursuant to an order made under s 24(2)(b) — 10 years if the offence charged is punishable by life imprisonment and otherwise half the maximum term to which the person would have been liable if convicted (the “half-sentence period”[25]). Subject to that temporal cap, the order continues in force until directions are made under s 31 by the Minister of Health or the Attorney-General. Section 31 provides:
[25]This term was coined by the Supreme Court in M (SC82/2020) v Attorney-General [2021] NZSC 118, [2021] 1 NZLR 770.
31Change of status from special patient to patient or special care recipient to care recipient where person unfit to stand trial
(1)This section applies to a defendant who has been found unfit to stand trial and who is detained as a special patient or as a special care recipient in accordance with an order under section 24 (the defendant).
(2)If, before or on the expiry of the relevant maximum period specified in section 30, a certificate is given under the Mental Health (Compulsory Assessment and Treatment) Act 1992 or the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003 to the effect that the defendant is no longer unfit to stand trial, the Attorney‑General must either—
(a)direct that the defendant be brought before the appropriate court; or
(b)direct that the defendant be held as a patient or, as the case requires, as a care recipient.
(3)If, at any time before the expiry of the relevant maximum period specified in section 30, a certificate is given under the Mental Health (Compulsory Assessment and Treatment) Act 1992 or the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003 to the effect that, although the defendant is still unfit to stand trial, the continued detention of the defendant under section 24 is no longer necessary, the Minister of Health, acting with the concurrence of the Attorney-General, must—
(a)consider whether, in the Minister’s opinion, the continued detention of the defendant under that section is no longer necessary; and
(b)direct that the defendant be held as a patient or, as the case requires, as a care recipient if, in the Minister’s opinion, that detention is no longer necessary.
(4)The Attorney-General must direct that the defendant be held as a patient or, as the case requires, as a care recipient if—
(a)the defendant is still detained as a special patient or as a special care recipient when the maximum period specified in section 30 expires; and
(b)no direction under subsection (2) or subsection (3) has been given in respect of the defendant; and
(c)no certificate of the kind referred to in subsection (2) has been given in respect of the defendant.
(5)A direction under this section—
(a)that the defendant be held as a patient is to be regarded as a compulsory treatment order for the purposes of the Mental Health (Compulsory Assessment and Treatment) Act 1992, and the provisions of that Act apply accordingly:
(b)that the defendant be held as a care recipient is to be regarded as a compulsory care order for the purposes of the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003, and the provisions of that Act apply accordingly.
(6)The powers and duties conferred and imposed on the Attorney‑General by this section are not capable of being exercised or performed by the Solicitor-General.
In summary, aside from when charges are withdrawn or dismissed, detention pursuant to a s 24(2)(b) order can only end in one of three ways. First, if before or on the expiry of the half-sentence period, a certificate is given under MHCAT that the person has become fit to stand trial, the Attorney‑General must direct either that they be brought before the court or held as a patient (under MHCAT). Secondly, if at the end of the half-sentence period a certificate is given that the person is still unfit to stand trial but continued detention under s 24(2)(b) is unnecessary, the Minister of Health (with the concurrence of the Attorney-General) must consider whether continued detention is necessary and, if it is, direct that the person be held as a patient under MHCAT. Thirdly, if at the end of the half-sentence period, no certificate has been given that the person is fit to stand trial the Attorney-General must direct they be held as a patient under MHCAT.

When the person is directed to be held as a patient, they will no longer be subject to the criminal justice system but, instead, to the civil regime of MHCAT. An inpatient compulsory treatment order under MHCAT continues until the responsible clinician considers that the patient can continue to be treated adequately as an out-patient, in which case the clinician gives notice in writing directing that the patient be discharged or that the patient attend a place nominated for the purposes of treatment.[26] Thereafter, the inpatient order is deemed to have effect as a community treatment order.
[26]MHCAT, s 30(2).
Because an order made under s 25(1)(a) has the effect of a compulsory treatment order under MHCAT, it is possible for a person detained pursuant to an order made under s 25(1)(a) ultimately to be made subject to a community treatment order or released at the direction of the responsible clinician. In addition, an inpatient compulsory treatment order carries with it the possibility of leave being granted for short periods. All these outcomes are solely at the direction of the responsible clinician.[27] Finally, a compulsory treatment order expires after six months, though it can be extended upon application to the court.[28]

A brief procedural history

[27]Sections 30(2) and 31.

[28]Sections 33 and 34.

Much of this account is drawn from the decision of this Court that resulted in Mr Tuira’s convictions being set aside.

Mr Tuira is detained as a special patient

An initial report obtained under s 38 of CPMIP concluded that Mr Tuira was fit to stand trial. However, further reports concluded that he was not fit to stand trial.[29] In October 2011 Mr Tuira was transferred to the forensic medium secure inpatient unit, Puna Maatai, at the Henry Rongamau Bennett Centre (HRBC), for further assessment prior to determination of his fitness to stand trial. Three further reports concluded that Mr Tuira continued to be unfit to stand trial.[30] One report writer concluded that he was fit to stand trial. [31]
[29]These were provided by Drs Peter Dean, Caleb Armstrong and Jean-Bosco Ruzibiza.
[30]These were provided by Dr Shaliesh Kumar, who attended on Mr Tuira at Puna Maatai, and Drs Dean and Armstrong.
[31]Dr Kadhem Majeed.
At a hearing in the District Court on 13 February 2012, Judge Ruth heard evidence from the doctors who had provided the psychiatric reports. He concluded that Mr Tuira was not fit to stand trial and ordered that he be detained as a special patient pursuant to s 24(2)(a) of CPMIP.[32] Mr Tuira was held at the HRBC.

Mr Tuira is found fit to stand trial

[32]Decision of Judge Ruth, above n 1.

In November 2012 Mr Tuira’s treating clinician, Dr Brunskill, conducted a clinical review under s 77(3) of MHCAT. He concluded that Mr Tuira was still unfit to stand trial. Mr Tuira applied for a review of that decision under s 80. The review hearing before the Mental Health Review Tribunal (at which Mr Tuira was represented) was adjourned because of a lack of evidence to address the relevant legal test. The hearing resumed in early 2013. By then, Mr Tuira’s treating clinician was Dr Majeed, who considered that Mr Tuira was fit to plead. The Tribunal also had a report from Dr Graham Mellsop, who agreed that Mr Tuira was fit to plead.
The Tribunal concluded that Mr Tuira was no longer under a disability. The Tribunal’s decision was referred to the Attorney-General as required by s 80(4)(c) of MHCAT. The Attorney-General directed that Mr Tuira be brought before the Court to answer charges pursuant to s 31(2) of CPMIP. In July 2013 Mr Tuira was transferred to Spring Hill Corrections Facility.

Mr Tuira pleads guilty and is sentenced

Although Mr Tuira had previously indicated a wish to plead not guilty to the charges, in July 2013 he entered guilty pleas to all the charges. When interviewed for the purpose of the Provision of Advice to Courts (PAC) report, Mr Tuira maintained that he had not pleaded guilty to the charges. Given his history of violent offending, including against women, Mr Tuira was assessed as being at high risk of reoffending. The Crown indicated that it would seek preventive detention and sentencing was transferred to the High Court.
In February 2014 Mr Tuira applied to vacate his guilty pleas. He remained in prison pending determination of the application. Judge Gibson heard the application in September 2014 and delivered his decision declining the application in October 2014.[33] The Judge determined the application on the basis that Mr Tuira had been judged as being fit to plead when he entered the guilty pleas and that he had been properly advised by counsel.[34]
[33]Decision of Judge Gibson, above n 2.
[34]At [21].
Sentencing proceeded in March 2015. Faire J considered what an appropriate finite sentence would be for the offending.[35] He concluded that an appropriate adjusted starting point that reflected the totality of the offending would be six years’ imprisonment.[36] The only mitigating feature would have been a modest (five per cent) discount for Mr Tuira’s guilty plea, given that he had subsequently applied to vacate the pleas, resulting in an end sentence of five years and eight months’ imprisonment.[37] The Judge then turned to the question of preventive detention. He had earlier canvassed the health assessors’ reports, noting the following:
[34]     Overall, Dr Chaplow concluded that your mental illness is chronic and treatment resistant. In particular, the delusional disorder from which you probably suffer is notoriously difficult to treat. Combined with your limited insight into your responsibility to society and to yourself means the likelihood that you will commit further sexual or violent offences is high.
…
[38]     Dr Murdoch … assessed you at being at a high risk for sexual and or violent re-offending within five years of release. Similarly, there is an equally high risk you will harm others …
…
[41]     Dr Murdoch concluded that your entrenched antisocial personality disorder and paranoid schizophrenia pose considerable barriers to treatment. Even if treatment is received, it is unlikely to mitigate the risk of your re‑offending without long-term remission of your mental disorders. Dr Murdoch noted that you would require an intensive level of supervision within the community if you are released. The success of such supervision will rely heavily on mental health services closely monitoring your mental health and treatment requirements and assisting you with accommodation.
[35]Sentencing decision, above n 3.
[36]At [66].
[37]At [70].
The Judge went on to find that Mr Tuira’s pattern of violent offending (there was no pattern of sexual offending), the risk of reoffending and the failure of previous treatment to address his disorder made preventive detention the appropriate sentence. He imposed a minimum period of imprisonment of five years.[38]

The convictions are set aside on appeal

[38]Sentencing decision, above n 3, at [89].

In 2015 Mr Tuira appealed his conviction. The appeal hearing set down for 17 February 2016 was adjourned following counsel’s advice that Mr Tuira was unfit to instruct counsel. Psychiatric reports were sought. They produced divergent views as to whether Mr Tuira was fit to stand trial.
In November 2017 this Court heard Mr Tuira’s appeal. It accepted that Mr Tuira’s guilty pleas were entered for pragmatic reasons, in the expectation of securing a finite sentence and that he had never accepted that he was guilty of the indecent assault charge which was the only charge that exposed him to a sentence of preventive detention.[39] It accepted that Mr Tuira did not know that preventive detention was a possible outcome of pleading guilty to the indecent assault charge and that, had he known of that possibility, he would not have pleaded guilty.[40] This Court concluded that:
[91] When these points are viewed together, we think that the (absence of) advice can be seen as undermining the heart of Mr Tuira’s plea in the sense contemplated by Saik. More particularly, their combination strongly suggests that, had Mr Tuira known that guilty pleas might result in precisely the outcome he was seeking to escape he would, almost certainly, have chosen to go to trial and run his (delusional) defences, with or without the assistance of counsel. Had he done so, that might well (for the reasons discussed earlier) have raised a question in the Judge’s mind as to his fitness to stand trial or his sanity at the time of the offending (or both). And in either event there must have been a real possibility that he would not have been convicted. We doubt that making Mr Tuira subject to the criminal justice system is the right or just outcome here. In the highly unusual circumstances of this case, we therefore think a miscarriage of justice has arisen.
(Footnote omitted.)
[39]Court of Appeal judgment, above n 4, at [87].
[40]At [89].
A retrial was ordered.

Mr Tuira is again found to be unfit to stand trial

In 2018 Mr Tuira was still in custody in Spring Hill Prison awaiting retrial. Unsurprisingly, the issue of fitness to stand trial arose. Throughout 2018 there were difficulties getting Mr Tuira to engage with a psychiatrist for assessment.
In December 2018 Dr Jane McCarthy examined Mr Tuira and found him to be fit to stand trial. An order was made for a further assessment. Dr Grant Galpin met with Mr Tuira for this purpose in April 2019. Mr Tuira would not engage sufficiently to allow Dr Galpin to examine him. Dr Galpin acknowledged Dr McCarthy’s finding that Mr Tuira was fit to stand trial but could not “add to the information already before the court” due to his inability to examine Mr Tuira.
Dr Galpin met with Mr Tuira again in June 2019. This time Mr Tuira engaged in the process sufficiently to allow Dr Galpin to reach a conclusion on his fitness to stand trial:
It is therefore my overall conclusion … that Mr Tuira has significant ‘mental impairment’ and that this will significantly impair his court related functioning. Mr Tuira’s concentration, immediate working memory and disorganised thinking, as well as delusional beliefs, make it extremely difficult for him to follow court proceedings and to participate appropriately in court processes and to communicate with counsel. Delusional beliefs significantly impair his capacity to appreciate the implications of sentence and of the evidence he wishes to advance. In essence disorganised thought processes, delusional beliefs, emotional lability, poor concentration and working memory combine to result in Mr Tuira currently having substantial impairments in key areas of mental functioning necessary for him to participate adequately in court processes.
It is thus my view that Mr Tuira therefore meets the threshold test, and that it is therefore highly likely that the court will find that he is currently unfit to stand trial.
Dr Galpin did note however that it was possible that with the passage of time and treatment Mr Tuira’s court-related functions may well improve to the point that his fitness to stand trial would be restored. He recommended a re-evaluation of Mr Tuira’s fitness to stand trial in six to eight weeks.
The issue of Mr Tuira’s fitness to stand trial was set down for hearing before Judge Cocurullo on 19 August 2019. Dr McCarthy and Dr Galpin both gave evidence. Dr McCarthy said that she had met Mr Tuira again that morning. She noted that he had come off his medication. She said that she initially didn’t recognise him, that she had never seen him as unwell, as irritable, or as thought-disordered and that his delusional thinking was more apparent. Dr McCarthy considered that Mr Tuira was currently unfit to stand trial.
Dr McCarthy was asked about Mr Tuira’s treatment. She said that when she had examined him in 2018 Mr Tuira had been taking anti-psychotic medication and was looking well. But now, having come off his medication, his presentation had deteriorated. Dr McCarthy observed that in a prison setting there was no power to impose medication:
… that’s the fundamental dilemma we face every day as psychiatrist[s] in the prison, we don’t have the [MHCAT] powers to impose treatment whereas in a hospital we have the powers in the Mental Health Act for people to take treatment, including treatment by injection.
Dr McCarthy and Dr Galpin were both asked about Mr Tuira’s future prospects. Both said that with treatment Mr Tuira could be expected to improve but that this was more difficult to achieve in a prison environment where Mr Tuira could not be compelled to take medication. Dr Galpin considered the prospects of Mr Tuira’s fitness to stand trial being restored were greater if he were resident at the HRBC under MHCAT. This was because Mr Tuira could be compelled to accept treatment and that a more thorough multi-disciplinary assessment of fitness could be undertaken.
However, Dr Galpin also described the potential circularity of the process by which Mr Tuira could be treated, have his fitness to stand trial restored, returned to prison to await trial but again become unfit to stand trial:
Q.We know the court process takes a long time, about a year, and we’re all worried about long term stability should the matter be returned to court in three months. Do you have a view on what would be the best way of maintaining long term stability, in other words fitness, for Mr Tuira?
A.Well I think you’ve got to get him fit first. That’s not happened since the 20^th of June and I would say that it would be better if he was in hospital for the purposes of the treatment that I outlined but also for the assessment of fitness and to give the court a greater idea of whether or not he’s unfit to stand trial. So that’s the first thing you’ve got to do. Mr Tuira runs the risk of being made a special patient again because of being unfit to stand trial. … there are lots of procedural and judicial delays in someone who’s a special patient who is unfit to stand trial and the chances are if he was unfit to stand trial, made a special patient, fitness was restored down that path, that he could end up with the Attorney-General dictating that he comes back to face these charges again and that’s I think what everyone here would like to avoid.
Q.Correct and that’s because of the seriousness of the charge is your reason?
A.Correct. Yes. So I think getting him, getting his fitness restored is certainly what he tells us he wants. I believe that’s what the court wants and I believe that’s proper in terms of the ethical standard. When you are treating someone who is unfit to stand trial you restore their fitness so they can face the charges. Of course, there’s every prospect that when his fitness is restored he gets returned to prison. I can’t control that. No one can. There’s a lot of pressure on beds. But in my experience the biggest barrier to getting into a forensic hospital is, you know, and the biggest barrier to treatment in a forensic hospital is getting in. But yes once his fitness is restored the argument will be well he was fit when Dr McCarthy saw him in December. He can remain fit in prison. But I guess you could hope that there will be an assessment of his … medication in prison as far as that’s possible and a lower threshold to bring him back to make sure his fitness is maintained so this matter can come to an end.
Q.Because of course if he went back to prison and he’s not under the Mental Health Act and his medication changes we could well find he slips below the threshold again and once again is unfit to stand trial?
A.That unfortunately is possible.
At the conclusion of the evidence Judge Cocurullo gave an oral decision.[41] He referred to the definition of “unfit to stand trial” and reviewed the reports and the evidence given by Dr McCarthy and Dr Galpin and concluded:
[37] … whilst Mr Tuira would like me to find that he is fit to stand trial, I cannot. The expert evidence is overwhelming, clear, articulated and I agree with and confirm both the evidence of Dr Galpin and Dr McCarthy. Their opinions are supported by their clinical observations, their assessments, their opinions are rational, have been subject to review, are cogent and in my view proper. Put another way, when looking at their evidence against all of the evidence I have, there is no proper basis that I can at law find what Mr Tuira wants me to find.
[38] … in addition to making the order that Mr Tuira is mentally impaired, [I] conclude and determine that Mr Tuira is unfit to stand trial. …

Mr Tuira is detained for a second time as a special patient

[41]First decision of Judge Cocurullo, above n 5.

A further hearing was held for the purposes of deciding what order should be made in relation to Mr Tuira. Dr McCarthy provided a report dated 25 September 2019 expressly for this purpose. Her report referred to the fact that orders under either s 24 or s 25 of CPMIP were proposed.
It appears that Dr McCarthy had not re-examined Mr Tuira. The report was extremely brief and the relevant part of it stated:
I have discussed the current presentation of Mr Gavin Tuira with his treating consultant psychiatrist, Dr Nichole Galley and Dr Peter Dean, clinical director at Henry Rongomau Bennett Centre (HRBC). They are both of the opinion that Mr Tuira remains unwell from his mental illness and continues to require on-going hospital treatment. Due to Mr Tuira’s ongoing risk to others and taking into account the previous preventative (sic) detention, my recommendation is that Mr Tuira is disposed of under section 24(2)(a) of the Criminal Procedure (Mentally Impaired Persons) Act 2003 and remains a patient at the HRBC.
On 27 September 2019 Judge Cocurullo made a decision as to the disposition of the matter.[42] The Judge referred to Dr McCarthy’s report and also to allegations against Mr Tuira, his personal circumstances, the “voluminous” specialist reports and counsel’s submissions. He concluded that he was satisfied as to all of the circumstances of the case and the evidence and considered it appropriate to adopt Dr McCarthy’s recommendation and make an order that Mr Tuira be detained under s 24(2)(a) of CPMIP.[43]

Issues 1: the finding of unfitness to stand trial

Approach on appeal

[42]Second decision of Judge Cocurullo, above n 6.

[43]At [7].

An appeal brought under s 16 in respect of a finding of unfitness to stand trial is treated as a rehearing, with the appellate court required to consider the relevant evidence and undertake the statutory steps afresh.[44] Specifically, the Court must consider the evidence of two health assessors and either confirm or quash the finding relating to the appellant’s mental impairment. If satisfied the appellant is mentally impaired the Court must then hear from both the appellant and respondent, give them the opportunity to present evidence on the issue and either confirm or quash the finding relating to the appellant’s fitness to stand trial.

Assessment of evidence

[44]CPMIP, s 17; and G (CA374/2015) v R [2015] NZCA 327 at [19]–[21].

By the time the Judge came to determine whether Mr Tuira was unfit to stand trial there was a strong consensus between Dr McCarthy and Dr Galpin on the point. Although Mr Chisnall submitted that aspects of Dr Galpin’s evidence suggested an (incorrect) application of a “best interests” inquiry, rather than the settled test of being able to participate meaningfully in the trial,[45] he accepted that Dr Galpin’s overall assessment was not so limited and that both Dr Galpin and Dr McCarthy had concluded that Mr Tuira lacked the capacity to meaningfully participate in a trial.
[45]R v Cumming [2006] 2 NZLR 597 (CA) at [37]–[38].
We are satisfied that there was no error in the Judge’s approach to the question of fitness or to his conclusion. The evidence provided a strong basis on which to find that Mr Tuira was unfit to stand trial. We therefore confirm the Judge’s finding on this issue.

Issue 2: the order that Mr Tuira be detained under s 24(2)(a)

Jurisdiction

As noted earlier s 29 confers the same right of appeal against an order or decision made under ss 24, 25 or 27 as if the order or decision were a sentence. However, s 29 does not identify the specific grounds upon which the order or decision may be challenged. The commentary in Adams on Criminal Law notes that under comparable Canadian legislation the decision as to disposition may be challenged on grounds that it was unreasonable or could not be supported by the evidence, was based on a wrong decision on a question of law or that there was a miscarriage of justice.[46] In this case we are satisfied that the Judge made an error of law that would justify reconsideration of the order made. It is unnecessary to go further and consider other grounds on which an order made under s 24 might be challenged.

The problem and the issues arising

[46]Adams on Criminal Law – Criminal Procedure (online loose-leaf ed, Thomson Reuters) at [CM29.01], citing Canadian Criminal Code, s 672.78(1).

Under s 30(1)(b) the maximum period of time that Mr Tuira can lawfully be detained as a special patient under s 24(2)(a) is seven years.[47] As at the date of the appeal hearing for the present appeal, Mr Tuira had been detained continuously as either a special patient or in prison since being denied bail in December 2010 — approximately 11 years and two months. Of that time, detention as a special patient accounted for approximately three and a half years. The periods of Mr Tuira’s detention can be broken down as follows:
(a)as a special patient under s 24(2)(a) of CPMIP between 13 February 2012 and 24 June 2013 (approximately one year and three months);
(b)in custody (including as a prisoner at Spring Hill Corrections Facility) between 24 June 2013 and 27 September 2019 (approximately six years and three months); and
(c)as a special patient under s 24(2)(a) of CPMIP from 27 September 2019 until present (approximately two years and five months at the time of the hearing).
[47]The most serious charge Mr Tuira faced was aggravated burglary, which carries a maximum penalty of 14 years imprisonment: Crimes Act 1961, s 232(1).
Mr Chisnall submitted that continued detention and exposure to criminal proceedings that began more than a decade ago is unfair and contrary to Mr Tuira’s rights under the New Zealand Bill of Rights Act 1990 (BORA). He argued that, taking a rights-consistent interpretation of s 30, the maximum period of detention should be calculated by treating detention under s 24(2)(a) as running continuously from the date of the order and including periods of imprisonments imposed following a finding that the person is no longer unfit to stand trial. This interpretation is the most consistent with the rights not to be arbitrarily detained and not to be subject to disproportionately severe treatment or punishment.[48] Mr Chisnall submitted that since at the time Judge Cocurullo made the order Mr Tuira had been detained, either as a prisoner or pursuant to an order under s 24(2)(a), for longer than seven years. He contends therefore, that there was no jurisdiction to make the order now under appeal.
[48]New Zealand Bill of Rights Act 1990, ss 9 and 22.
The Crown’s position is that the proper interpretation of s 30 requires that only periods of detention pursuant to the s 24(2)(a) order be taken into account. Mr Carruthers, for the Crown, did not directly address the BORA argument but submitted that there are adequate safeguards in the statutory scheme to address any unfairness that might result from excluding periods of imprisonment following a finding of fitness to stand trial. One of the safeguards identified is the availability of an alternative order under s 25. As flagged earlier, we do not need to deal with the correct interpretation of s 30. We turn now to the issue of an alternative order under s 25.

Should the Judge have considered an alternative order under s 25(1)(a)?

As noted earlier the Judge had to be satisfied that an order under s 24(2)(a) was “necessary in the interests of the public or any person or class of person who may be affected by the court’s decision” before making the order.[49] For the reasons that follow we consider that, taking into account all the relevant circumstances of the case, this threshold was not reached and that an alternative order should have been made under s 25.
[49]Section 24(1)(c).
The threshold, as discussed, is high. The interests of the public have been recognised as not merely protection of the public from further offending by the offender but also the longer term public interest in ensuring the offender is managed and treated in a manner that will enhance their rehabilitation and reintegration into the community as early as possible.[50] In M (CA819/2011) v R this Court made the following observations about the threshold in s 24(2):
[7] 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 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.
[8] 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. …
[50]M (CA819/2011) v R, above n 20, at [7]; and R v Rangi (No 2) HC Rotorua CRI 2005-019-3496, 9 March 2006 at [57].
The Court then cited Heath J’s explanation of the assessment made in R v Rangi (No 2):[51]
[57] The way in which a Court should approach an assessment of what order ought to be made involves the assessment of societal safety concerns, the risk of further safety concerns arising out of the management of a medical problem and the need for the person before the Court to be treated in a manner which will enhance his or her rehabilitation and the prospects of reintegration into the community at the earliest possible time.
[51]R v Rangi (No 2), above n 50.
It is implicit that reintegration includes the person being able to return to court to address the charges against them. In R v Carrell Heron J made the following observations following the finding that the defendant was unfit to plead:[52]
“The Law Reform Comission of Canada has expressed its objection to the automatic indeterminate detention of an unfit accused, and argues that any disposition ‘must be directed towards facilitating the accused’s recovery so as to permit him to return to court with a minimum of delay’.”
I think I should exercise the powers that I have pursuant to s 74 of the Mental Health Act 1969 to manage this case to ensure that if [the defendant] becomes fit to plead he should plead. That is consistent with the overall justice of the case in any event and with the laudable objects expressed by the Canadian Commission.
[52]R v Carrel [1992] 1 NZLR 760 (HC) at 768, citing Warren Brookbanks “A Contemporary Analysis of the Doctrine of Fitness to Plead” [1982] NZ Recent Law Review 84 at 97.
Mr Chisnall submitted that the Judge had failed to explicitly consider all the circumstances of the case in reaching his decision as to the appropriate means of disposition. In particular, he pointed out that Dr McCarthy’s recommendation of a s 24 order, which the Judge accepted, was influenced by the belief that Mr Tuira had been sentenced to preventive detention. Mr Chisnall submitted that was an irrelevant consideration, given that the preventive detention sentence had been set aside on appeal. However, Mr Chisnall considered that these errors did not impugn the Judge’s decision, having regard to the undoubted need for public protection. We have reached a different view.
In this unusual case, in addition to Mr Tuira’s ongoing unfitness to stand trial and the continued risk he posed to the community, the relevant circumstances to be considered were as follows. First, the medical evidence before the Court strongly indicated that Mr Tuira would not become fit to stand trial again. It is relevant to note that the certificate of clinical review of Mr Tuira dated 24 June 2021 and the clinical report for the Director of Area Mental Health Services dated 25 June 2021 showed unequivocally that Mr Tuira is still unfit to stand trial because he suffers from continuous persecutory delusions. As a result of this condition, he is regarded as unable to live safely in the community. We note too that Mr Tuira was suffering from cancer at the time of those reports, though no details of the condition were provided.
Secondly, on the evidence before the Judge, it was likely that if Mr Tuira did regain fitness to stand trial, he could well lose that fitness if returned to prison. He was aged 66 years with a 40 year history of treatment resistant paranoid schizophrenia. His earlier fitness to stand trial had been shortlived because of the inability to compel Mr Tuira to take medication in the prison environment.
Thirdly, Dr McCarthy’s recommendation of a s 24 order ought to have been treated with caution because of her reliance on the earlier imposition of preventive detention. Dr McCarthy presumably was unaware that the sentence of preventive detention had been set aside on appeal. Further, the charge of indecent assault was the only charge that provided a basis for the sentence of preventive detention and it was evident from this Court’s decision setting aside the conviction and sentence that Mr Tuira likely had a tenable defence of insanity in relation to the indecent assault charge. Had he been found not guilty by reason of insanity at trial, he would have been subject to the statutory pathways set out in ss 24 and 25. As a result, even if Mr Tuira was restored to fitness and stood trial, it seems unlikely that the outcome would have been preventive detention.
Finally, Mr Tuira had been either in secure detention pursuant to s 24(2)(a) or in custody as a prisoner for almost a decade when Judge Cocurullo heard the case. The period in custody accounted for six years and three months of that. It will be recalled that, in sentencing Mr Tuira to preventive detention in 2015, Faire J had indicated that an appropriate finite sentence (had a finite sentence been imposed) would have been no more than six years’ imprisonment.
In these circumstances, we are doubtful that Mr Tuira’s rehabilitation and reintegration to the community will be advanced by detention pursuant to s 24(2)(a) and ongoing involvement in the criminal proceedings. Therefore, the only purpose served by a s 24(2)(a) order would have been protection of the public. However, that factor could equally have been addressed through an order made under s 25(1)(a) because it would have the effect of a compulsory treatment order and could have been specified as an inpatient order. Because the criteria for a compulsory treatment order under MHCAT is mental disorder, which includes posing a serious danger to the health and safety of others, this concern is able to be addressed through such an order.
When these factors are considered together, it is apparent that further detention under s 24(2)(a) was not necessary and that an order under s 25(1)(a) was the appropriate means of disposition.

Result

The application for an extension of time is granted.
The application for leave to appeal is granted.
The appeal is allowed.
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.

Solicitors:
Crown Law Office, Wellington for Respondent

[2022] NZCA 394

24 August 2022 at 10 am