IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

I TE KŌTI MATUA O AOTEAROA NGĀMOTU ROHE	
CRI 2019-043-1421
[2020] NZHC 2074	

THE QUEEN	

v	

KAREN ANNE TUI	

Hearing:	17 August 2020	
Counsel:	C E Clarke for Crown
P M Keegan and S Hunt for Defendant	
Judgment:	17 August 2020	

JUDGMENT OF DOOGUE J
(Disposition under s 24(2) of the Criminal Procedure (Mentally Impaired Persons) Act 2003)

Introduction

[1]	Ms Tui is charged with murdering her mother on 13 August 2019.1 A post-mortem examination established that Ms Tui’s mother died as a result of manual neck compression.

[2]	The issue of Ms Tui’s fitness to stand trial was raised, and the appropriate procedure under the Criminal Procedure (Mentally Impaired  Persons)  Act  2003 (the Act) commenced.

1	Crimes Act 1961, ss 160(2)(a), 167(a), 167(b) and 172; maximum penalty life imprisonment.

R v TUI [2020] NZHC 2074 [17 August 2020]

[3]	On 12 June 2020 I recorded a finding that, on the balance of probabilities,  Ms Tui had caused the act that formed the basis of the offence of murder with which she is charged.2

[4]	I adjourned the matter for this hearing, to determine whether it was necessary for Ms Tui to be detained in accordance with one of the orders specified in s 24(2) of the Act.

[5]	Reports have been received from Drs Kumar and Hansby, who both recommend that Ms Tui be detained in a hospital as a special patient under s 24(2)(a) of the Act.

The law

[6]	The threshold for making an order under s 24 of the Act is that detention must be “necessary” in the interests of the public or those who may be affected by the Court’s decision. The Court must consider all the circumstances of the case and, having considered the evidence of one or more health assessors, decide whether the public interest requires the defendant to be detained as a special patient or a special care recipient. The health assessor’s evidence will obviously be important in this context. It must effectively explain why the treatment and management of the defendant requires him or her to be detained in a secure facility or hospital.

[7]	The Court is therefore likely to undertake its assessment by means of a two-stage process. First, the Court must determine whether it is necessary in the interests of the public to make an order under s 24(2). If it concludes that it is not necessary to make such an order, it must go on to make an alternative form of order under s 25.

[8]	The standard of necessity obviously sets a high threshold. That is not surprising given the serious consequences of an order under s 24(2). In Environmental Defence Society Inc v Mangonui County Council the Court of Appeal described the word “necessary”, when used in s 3 of the Town and Country Planning Act 1977, as

2	R v T [2020] NZHC 1323.

“a fairly strong word falling between expedient or desirable on the one hand and essential on the other”.3 I consider that to be an apt description for present purposes.4

[9]	An order under s 24(2) therefore does not need to be “essential” in the interests of the public. The fact that an order might be thought to provide the optimum outcome in terms of the treatment and rehabilitation of the defendant would not, however, be sufficient by itself to meet the necessity test.5 Nor would it be sufficient that an order under s 24(2) might make it more convenient or expedient for the health authorities to manage and treat the defendant.6

[10]	The Court must therefore keep firmly in mind the test that s 24(1)(c) prescribes. The Court cannot make an order under s 24(2) unless it is satisfied that such an order is necessary in the interests of the public.7 In this area, the judicial assessment required under s 24(1)(c) may be wider in scope than the assessments undertaken by health professionals.8

[11]	Finally, in R v Kingi, the defendant had killed his brother-in-law in an unprovoked attack.9 Toogood J ordered the defendant, who suffered from treatment resistant paranoid schizophrenia, to be detained as a special patient under s 24(2)(a) of the Act. In doing so, Toogood J noted that:10

Our system of criminal justice, however, also requires that those unfortunate persons charged with serious criminal offending while suffering from serious mental illness should be treated humanely and subjected to proper medical care and treatment rather than punishment while they continue to suffer under a mental disability.

3	Environmental Defence Society Inc v Mangonui County Council [1989] 3 NZLR 257 at 260.
4	M (CA819/11) v R [2012] NZCA 142 at [17].
5	At [18].
6	At [18].
7	At [19].
8	At [19].
9	R v Kingi [2017] NZHC 2938.
10	At [20].

Submissions

Crown submissions

[12]	For the Crown, Ms Clarke submitted that the circumstances of Ms Tui’s mother’s death and the fact that, according to the medical evidence, her persecutory delusions continue to make her a serious danger to others, results in there being a substantial risk to community safety if Ms Tui was released into the community for treatment.

[13]	Ms Clarke submitted that it is in the public interest that the Court should make an order for detention as a special patient.

Ms Tui

[14]	I am grateful to Mr Keegan for his efforts in maintaining Ms Tui’s confidence and providing her with legal advice over a considerable period of time. Responsibly, Mr Keegan does not argue with the legal propositions leading to the Crown’s submission that Ms Tui should be detained as a special patient, and concedes that this is the best option for her in all the circumstances.

[15]	Mr Keegan has explained to Ms Tui that she will become a special patient, and in basic terms what that will mean. He reports that her understanding has limitations, but that she does not resist the order.

[16]	Mr Keegan did not seek for the existing name suppression to continue past the disposition hearing.

Discussion

[17]	Dr Kumar advised that Ms Tui has ongoing delusional beliefs about the deceased and has a marked deficit in her insight about her mental illness, the need for treatment, the impact of her substance abuse, and her current legal predicament.

[18]	Dr Kumar opined that Ms Tui is at risk of violent reoffending and is unlikely to receive the degree of close monitoring, supervision and support in the community

to reduce that risk. The support Ms Tui can receive in a secure forensic psychiatric facility may assist to reduce her risk.

[19]	Dr Kumar concluded:

Ms Tui presents with ongoing risk of extreme violence, especially against people she could potentially incorporate in her psychopathology. Her prognosis remains poor despite consistent comprehensive inpatient psychiatric treatment. She had a longstanding delusion against her mother who she is alleged to have killed, and had previously attacked. She currently reports delusional beliefs about other members of her family and has the potential to target them. Although the most likely victim of her violent offending is no longer alive, other members of her family could be potentially at risk if Ms Tui was to have access to them and acted in response to her psychopathology. Such risk can be managed by treating her psychotic symptoms aggressively. Unfortunately, despite being treated with two antipsychotic medications, Ms Tui continues to present with psychotic symptoms. Environmental control by placing her in a secure forensic psychiatric system would therefore be the safest way to manage her risk of future violent reoffending.

[20]	Dr Hansby confirmed his previous evidence that Ms Tui is mentally disordered within the Mental Health (Compulsory Assessment and Treatment) Act 1992 and presents with an abnormal state of mind, characterised by persecutory delusions, disorganised thinking, and hallucinations. He considered this is associated with her being a serious danger to others.

[21]	Dr Hansby stated that it is necessary in the interests of the public for Ms Tui to be detained as a special patient because:

[24] … Ms Tui experiences treatment resistant schizophrenia with chronic persecutory delusions; she was responsible for her mother’s death and persecutory delusions were a likely factor in this; the persecutory delusions persist and continue to involve other family members; and her persecutory delusions persist despite months of clozapine therapy and inpatient forensic mental health care. Furthermore, the homicide occurred despite Ms Tui already being under secondary mental health service care in the community.

[22]	Having regard to the wider circumstances of this case, along with the recommendation of both Drs Hansby and Kumar, I am satisfied that Ms Tui should be detained in hospital as a special patient under the Mental Health (Compulsory Assessment and Treatment) Act 1992, as that is necessary in the interests of the public and more specifically the members of Ms Tui’s family.

[23]	This is indeed a tragic  case.  I express  the deep sympathy of the Court to  Ms Tui’s whānau. The Court is indebted to the expert medical practitioners who have assisted by the provision of reports throughout this case. Although taking longer than may be desirable in the minds of some, this case underlines the importance of ensuring that proper accountability for the violent death of an innocent woman is fully considered by the prosecuting authorities and by the Court.

[24]	Our system of criminal justice requires fairness to all, including as Toogood J said, “those unfortunate persons charged with serious criminal offending while suffering from serious mental illness”.11

[25]	I note there are no applications before me seeking name suppression for either Ms Tui or the victim. I understand Ms Tui’s family have expressed their desire for name suppression to continue permanently. However, I am not satisfied that any of the grounds supporting name suppression are made out, and I consider the principles of open justice weigh against the granting of permanent name suppression.

Orders

[26]	I order under s 24(2)(a) of the Criminal Procedure (Mentally Impaired Persons) Act 2003 that you, Ms Tui, be detained in a hospital as a special patient under the Mental Health (Compulsory Assessment and Treatment) Act 1992.

[27]	I order the discharge of any existing name suppression orders.

Doogue J

Solicitors:
Crown Solicitor, New Plymouth

11	R v Kingi, above n 9, at [20].