R v Tait HC Hamilton CRI-2010-070-5571 [2011] NZHC 1562 (30 June 2011)

Last Updated: 19 November 2011

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

_{CRI-2010-070-5571}

THE QUEEN

v

_{MURRAY DAVID TAIT}

Hearing: 30 June 2011

Appearances: G Hollister-Jones and H Booth for the Crown

J Bergseng and M McCarty for the Accused

Judgment: 30 June 2011

ORAL JUDGMENT OF PRIESTLEY J (S 344A Application of Accused)

Counsel/Solicitors:

G Hollister-Jones, Crown Solicitors, Tauranga Central 3141. Email: [e-mail]

H M Booth, Crown Solicitors, Tauranga Central 3141. Email: hbooth.rhjl.co.nz

J Bergseng, Bergseng & Co Lawyers, Auckland. Email: [e-mail]

_{M McCarty, Barrister, Tauranga Email:} [e-mail]

R V TAIT HC HAM CRI-2010-070-5571 30 June 2011

[1] The defence has made an application under s 344A of the Crimes Act 1961. That application is to call expert opinion evidence from a reputable consultant psychiatrist, Dr S Kumar, who practises in Rotorua. Dr Kumar is frequently instructed by this Court to prepare reports under relevant mental health legislation and I do not perceive there is any attack or challenge to his professional qualifications.

[2] The evidence which defence counsel seeks to call (the Crown being opposed to it), is contained in an eight page, undated, brief of evidence which defence counsel filed in court earlier this week. That report is supplemented by a further three page report dated today in which Dr Kumar deals with three supplementary questions.

[3] It is unnecessary for me to set out in any great detail the contents of Dr Kumar’s brief. In essence he concludes that the accused can properly be diagnosed as having developed an obsessive compulsive personality disorder (OCPD) during his adult years, possibly following his involvement in a motor accident.

[4] The relevant personality traits constitute the preference of people suffering from OCPD to live rigid, regimented, and predictable lifestyles. In Dr Kumar’s typical experience such people frequently have a lowered ability to tolerate frustration.

[5] Supplementing his brief in today’s report Dr Kumar opines that the accused falls into an OCPD sub-type, being “Parsimonious Compulsive”. Characteristics of this sub-type are being miserly, tight-fisted, hoarding, protecting against loss, fearful of intrusions, and dreading exposure.

[6] Significantly, as I shall say later, on the ultimate issue of this trial Dr Kumar, under the heading “Risk Assessment”, sees no necessary connection between violence and OCPD. He places the accused in a population of individuals with a low or minimal risk of violence and opines that, on balance, the accused’s risk of committing a violent offence would have to be considered minimal.

[7] Mr Bergseng tells me that Dr Kumar is of the view that he can say nothing about the central issue of this trial, murderous intent, and will not be commenting on that.

[8] It is very clear from the authorities that judges must act as the gate-keeper on not only admissibility issues, which entail an assessment of relevance, but also on whether opinion evidence, which Dr Kumar’s evidence would constitute, can properly be admitted.

[9] Relevant provisions of the Evidence Act 2006 are as follows:

7 Fundamental principle that relevant evidence admissible

(1) All relevant evidence is admissible in a proceeding except evidence that is –

(a) inadmissible under this Act or any other Act; or

(b) excluded under this Act or any other Act.

(2) Evidence that is not relevant is not admissible in a proceeding.

(3) Evidence is relevant in a proceeding if it has a tendency to prove or disprove anything that is of consequence to the determination of the proceeding.

8 General exclusion

(1) In any proceeding, the Judge must exclude evidence if its probative value is outweighed by the risk that the evidence will –

(a) have an unfairly prejudicial effect on the proceeding; or

(b) needlessly prolong the proceeding.

...

25 Admissibility of expert opinion evidence

(1) An opinion by an expert that is part of expert evidence offered in a proceeding is admissible if the fact-finder is likely to obtain substantial help from the opinion in understanding other evidence in the proceeding or in ascertaining any fact that is of consequence to the determination of the proceeding.

(2) An opinion by an expert is not inadmissible simply because it is about –

(a) an ultimate issue to be determined in a proceeding; or

(b) a matter of common knowledge.

(3) If an opinion by an expert is based on a fact that is outside the general body of knowledge that makes up the expertise of the expert, the opinion may be relied on by the fact-finder only if that fact is or will be proved or judicially noticed in the proceeding.

...

[10] The issue of relevance can be disposed of simply. I accept Mr Hollister- Jones’s submission that Dr Kumar’s evidence has no relevance to the central issue of this trial which is murderous intent. When opening, Crown counsel made the Crown’s approach crystal clear to the jury. The Crown’s case is that the accused meant to cause the death of his father (s 167(a)). Section 167(b) was described by Mr Hollister-Jones as a “backstop” provision. On the evidence presented by the Crown, it being ultimately a matter of inference for the jury to determine, both subsections are strongly in play. There is no dispute by the accused, as is apparent from the s 9 admissions of fact, that his assault on his father with a hammer was causative of his death. In his brief opening statement Mr Bergseng made it clear to the jury that the defence position was the proper verdict would be not guilty of murder but guilty of manslaughter.

[11] Both from the Crown opening and from the evidence called, it became clear that the Crown case pointed to an escalating pattern of frustration and inappropriate conduct by the accused towards his elderly parents. At the start of the relevant period the accused very much seems to have led his own life in his separate bedroom; did not dine with his parents or watch television with them; kept to himself; occasionally attended to household tasks such as washing; and occasionally walked the dogs with his mother. Apart from those contacts his life was very much that of a recluse.

[12] In the month before the homicide, however, matters seemed to have deteriorated. There were angry words spoken and physical confrontations between the accused and both his parents. In the Crown’s opening Mr Hollister-Jones pointed to this escalating pattern or deterioration in the accused’s behaviour. There has been evidence of the accused’s conduct from both his mother and also from witnesses who visited Mrs Tait’s home, (being Mrs Leydon and Ms Woodford), when they returned

from a mah-jong tournament in Rotorua. They found the deceased in a somewhat distressed and ashen state, there having been some confrontation between him and the accused.

[13] There has also been evidence relating to quite remarkable hoarding of wrapped and packaged items in the accused’s bedroom. That evidence was supplemented this afternoon by evidence called at the request of defence counsel from Constable Cotton, describing large numbers of items including old food, clothing, and shoes in a lock-up which the accused rented. There has also been possibly relevant evidence about a deception practised by the accused on his parents over whether or not he was drawing a sickness benefit. His parents, as I understand the evidence, were oblivious to the fact that with the assistance of general practitioners, the accused had been drawing a sickness benefit for a number of years. This is perhaps relevant to the “miserly” aspect of Dr Kumar’s relevant diagnosis.

[14] What appears to have triggered this sudden and marked deterioration of the accused’s behaviour, again alluded to in the Crown’s opening, and clearly presented by Crown evidence, was the invocation by the deceased and Mrs Tait of the Tauranga branch of Tough Love, which appears to have advised Mr and Mrs Tait to present a united front to the accused and to steer him towards making some financial contribution to household expenses.

[15] On the basis of statements made by the accused to the police, what may have triggered the fatal assaults was some disagreement between him and his father in the bathroom as to who was to assume responsibility for the laundry/washing. In the absence of direct evidence from the accused, however, that is a matter of some speculation and conjecture.

[16] So where does all this lead? In respect of the Crown evidence, and indeed the theory of the Crown case to which I have referred, I am satisfied that Dr Kumar’s evidence has relevance in terms of s 7(1). Mr Hollister-Jones very fairly accepts that. He questions, however, whether in terms of s 7(3) the evidence is likely to prove or disprove anything that is of consequence.

[17] That submission is quite properly used by Mr Hollister-Jones to buttress up his main objection to the admissibility of Dr Kumar’s evidence which is founded on an interpretation of s 25. Mr Hollister-Jones correctly submits that the central issue of this trial, to which I have referred (murderous intent), is straightforward and that the evidence of Dr Kumar is not likely to offer substantial help to the jury on that issue.

[18] Mr Hollister-Jones also has an understandable concern about the use to which Dr Kumar’s evidence, if admitted, might be put. He points out it would be a fallacy to draw a causation chain from a diagnosis of OCPD, to frustration, to a conclusion that in the eight relevant minutes on 22 June 2010 there was no murderous intent. That legitimate concern of counsel has doubtless been provoked by Mr Bergseng’s indication that what he hopes to argue is that the accused’s frustration and loss of tolerance led, on that fatal morning, to total loss of control. Such loss of control could raise reasonable doubt about the presence of a murderous intent.

[19] I accept there is considerable force in Mr Hollister-Jones’s submissions. Certainly, depending on how the evidence unfolds, if admitted; whether or not the accused chooses to give evidence; and what defence counsel may choose to say in his closing address. I regard it as being part of my function to hold the balance between the Crown and the accused to make some comment if submissions were made which went beyond where the evidence took us.

[20] But returning to s 25, the concern I have is that the jury now have a volume of evidence from a number of witnesses which, putting it mildly and colloquially, is that the accused is odd. Most men in their mid-forties do not hoard things in their bedroom. Nor do most men in their forties (or indeed people of any gender), keep

55 pairs of shoes and chocolates beyond their expiry date in lock-ups. There is something decidedly odd about the living arrangements of the accused and indeed about his increased hostility towards his parents when, quite legitimately, they asked for some form of board.

[21] In that area it seems to me that the jury could well find substantial help

(s 25(1)) from the expert evidence as to what lies behind this odd behaviour. The

evidence of odd behaviour is certainly consistent with Dr Kumar’s diagnosis. My fear is that, without such expert evidence, the jury may go off down an illegitimate path which would be “the accused has behaved most oddly; in our assessment he is off-beam; off-beam people frequently commit crimes; therefore he must have had murderous intent”. I make that observation with reasonable confidence that it is not totally fanciful and that New Zealand juries are generally unsympathetic to accused who display eccentric or odd behaviour.

[22] Thus I have reached the conclusion, by a small margin, that Dr Kumar’s evidence should be admitted and that, as an expert, his opinion which I understand it is going to diagnose, from the sessions he has had with the accused, is that Mr Tait has obsessive compulsive personality disorder of the parsimonious compulsive type. That is a diagnosis which, in terms of s 25(3), lies outside the general body of knowledge of the jury in this particular case.

[23] Whether or not Dr Kumar’s evidence is going to assist the defence beyond that is a matter on which I make no further comment. I do, however, rule that Dr Kumar is not to give any evidence whatsoever or be asked to speculate on the central issue of this trial, which is whether or not the accused was capable on 22 June 2010 of forming a murderous intent. There is clear authority that such an approach is usually impermissible. In that regard I refer to the recent Court of Appeal decision

of Mohammed v The Queen,[1] and the helpful dictum referred to in the previous Court

of Appeal authority of R v Makoare.[2] This is not, in my judgment, a situation where Dr Kumar’s opinion (particularly since he has none on the topic) could possibly be admissible.

[24] I note that in part I have been influenced by Mr Bergseng’s submission, based on adverse comments made by the Court of Appeal in R v Curtis,[3] in a situation where defence counsel on appeal tried to run submissions based on mental capacity and a low level of intelligence, where there is no evidence called at trial to lay the

_{foundation for such an appeal point.}

[25] I note that Dr Kumar in his second opinion of 30 June, when dealing with the accused’s level of tolerance to frustration, opined that the accused was suffering from flu-like symptoms “which could have further lowered his already compromised ability to handle frustration”.

[26] I accept without any hesitation Mr Hollister-Jones’s submission that evidence of that type, being a statement made by the accused months after the homicide to Dr Kumar, is inadmissible in terms of s 21(1) of the Evidence Act. And in any event there is considerable evidence from the Crown relating to medical examinations carried out on the accused when he was retrieved from Tauranga Harbour on the afternoon of the homicide making it clear that the accused stated that he was well at the time. There is no evidence from those medical examinations which was consistent with the accused having ’flu on 22 June 2010. I exclude that comment made to Dr Kumar not only on s 21(1) grounds but also on the basis that it is significantly at variance with other evidence, is probably untruthful, and is not a matter which should be placed before the jury to confuse them.

[27] Thus, for the reasons I have given, I rule under s 344A that Dr Kumar’s

evidence is admissible within the confines I have outlined.

..........................................
Priestley J

---

[1] _{Mohammed v The Queen [2010] NZCA 419.}
[2] _{R v Makoare [2001] 1 NZLR 318 at [21].}
[3] R v Curtis [2009] NZCA 521.