R v Aokuso [2014] NZHC 1041 (16 May 2014)

Last Updated: 5 June 2014

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI 2013-009-010579 [2014] NZHC 1041

THE QUEEN

v

_{TIMOTHY AOKUSO}

Hearing:	16 May 2014
Appearances:	S J Jamieson and C J Lange for the Crown JHM Eaton QC for the Defendant
Judgment:	16 May 2014

_{JUDGMENT OF DUNNINGHAM J}

[1] This is a hearing under s 20 of the Criminal Procedure (Mentally Impaired

Persons) Act 2003 and, if appropriate, under s 24 of the same Act.

[2] The defendant Timothy Aokuso is charged with murder under s 172 of the Crimes Act 1961 and, through counsel, has formally indicated an intention to raise the defence of not guilty on account of insanity.

Summary of facts

[3] The charge arises out of events which occurred in the early morning hours of

4 November 2013, and which are set out fully in the memoranda of admitted facts prepared for this hearing.

[4] At that time Mr Aokuso was living with his mother, his two step sisters and his step brother at their home in Redwood, Christchurch.

R v AOKUSO [2014] NZHC 1041 [16 May 2014]

[5] Mr Aokuso’s stepfather, Mr Tuetue, had moved out of the home because of previous difficulties with Mr Aokuso, but was staying at the address overnight on the night the attack occurred.

[6] Earlier in the evening, Mr Tuetue and his wife, Mr Aokuso’s mother, had argued for some time before she went to bed in her daughter Hana’s room.

[7] During the night Mr Aokuso came into the room where his mother was sleeping. He was emotional, asking what was wrong with him and saying that everyone hated him. He asked his mother why she had come to New Zealand from Samoa and married Mr Tuetue. His mother tried to calm him down and she took him back to his bedroom, but he returned to the room she was in again and told her he was angry with Mr Tuetue and that Mr Tuetue was the devil.

[8] Mr Aokuso also went into his sister Joyce’s room in the early hours of

4 November 2013. He asked her if she was okay and he said he had accepted the devil in him.

[9] Joyce was woken about half an hour later by Mr Aokuso yelling. She got up and went into the lounge where he was. His mother was asking Mr Tuetue to leave the house out of concern for his safety.

[10] Mr Aokuso, who was also in the lounge, was yelling and swearing at Mr Tuetue telling him he was the devil. His mother tried to pull Mr Aokuso out of the room, but he pushed past both his mother and sister into the hallway. They were not aware that at this point he had a knife.

[11] Mr Aokuso then walked up to Mr Tuetue and said “are you devil are you devil” before stabbing him twice in the back with a kitchen knife.

[12] Mr Aokuso was then restrained by his mother. He was heard to apologise to his stepfather and say that he was trying to help.

[13] An ambulance was called but unfortunately attempts to resuscitate Mr Tuetue were unsuccessful and he was pronounced dead at the scene at 2.25 am.

[14] When spoken to at the scene by police he said “God was speaking to me. It all came together, it was what I was supposed to do”. He said that he had stabbed the devil, that the devil was his stepfather and he stabbed him twice in the back with a knife.

[15] On being taken to the police station he again admitted he had stabbed his stepfather in the back twice. He explained to police that he had asked for the Lord’s forgiveness and had said sorry to his victim, but towards the end of the interview he said he was not sorry at all and was more sorry for his family members.

Section 23 of the Crimes Act 1961

[16] Section 23 of the Crimes Act 1961 provides that every person is presumed to be sane at the time of doing any act until the contrary is proved. Section 23 further provides that no person can be convicted of an offence by a reason of an act done when labouring under a disease of the mind, to such an extent as to render that person either incapable of understanding the nature and quality of the act involved, or of knowing that the act was morally wrong, having regard to commonly accepted standards of right and wrong.

[17] In other words, this is a two-pronged test. I first must be satisfied as to whether, at the time of committing the offence, Mr Aokuso had a disease of the mind. I then must be satisfied that the disease of the mind was operating to such an extent as to make Mr Aokuso incapable of knowing that his actions of attacking his stepfather were morally wrong, having regard to the commonly accepted standards of right and wrong.

[18] Under the Criminal Procedure (Mentally Impaired Persons) Act 2003 (the Act), a judge sitting alone may make a finding of insanity without the need for jury trial in certain circumstances. Section 20(2) of that Act provides that:

(a) if the defendant indicates that he intends to raise the defence of insanity; and

(b) the Crown agrees that the only reasonable verdict is not guilty on account of insanity; and

(c) the Judge is satisfied, on the basis of expert evidence, that the accused was insane within the meaning of section 23 of the Crimes Act 1961 at the time of the commission of the offence, the Judge must record a finding that the defendant is not guilty on account of his insanity.

[19] In this case, the first two requirements have been satisfied. Mr Aokuso has formally indicated his intention to raise the defence of insanity and the Crown has agreed that the appropriate verdict is not guilty on account of insanity. It is now for the Court to make a determination on the third requirement.

[20] To assist me with that I have received reports from two Forensic Psychiatrists, Associate Professor Philip Brinded and Dr Maxwell Panckhurst. Associate Professor Brinded’s report is dated 3 May 2014 and Dr Panckhurst has provided an initial report on Mr Aokuso’s fitness to stand trial and on s 23 issues dated 4 February 2014, and a further report dated 12 May 2014 which updates Dr Panckhurst’s earlier report and also addresses the issue of disposition under s 24 of the Criminal Procedure (Mentally Impaired Persons) Act 2003.

[21] In his report dated 3 May 2014, Associate Professor Brinded concludes:

His mental state at the time of the homicide appears to have been one where he was acutely psychotic, believed he was stabbing the devil and felt it was the right thing to do. In this state of mind I do not believe that Mr Aokuso at the time of the homicide understood the nature and quality of his actions. He does not appear to have realised that he was stabbing his stepfather but was acting on the delusional belief that he was killing the devil. I also believe that his state of mind was so disturbed that he could not rationalise what was morally right or wrong at the time. His psychotic symptoms prevented him from thinking rationally with any degree of sense and composure about the moral quality of his act or of the reasons which to ordinary people would make that act wrong.

...

Consequently I am of the view that at the time that Mr Aokuso caused the death of his stepfather he was suffering from a “disease of the mind”, he was unlikely to have understood the nature and quality of his actions and that because of the severity of his illness did not know that his actions were morally wrong given the, accepted standards of right and wrong. Therefore I believe he should have available to him a defence of “insanity” pursuant to s 23 of the Crimes Act.

[22] Dr Panckhurst has also expressed the clinical opinion that at the time of the alleged offence Mr Aokuso was suffering from a disease of the mind. He says:

In my clinical opinion Mr Aokuso’s primary diagnosis is Schizophrenia Paranoid Type, a typical chronic psychotic illness associated with delusional thoughts, hallucinations and a loss of emotional connectedness. Mr Aokuso’s illness has been characterised by extensive and complex religious, grandiose preferential and persecutory delusions and perceptual disturbings including hearing the voice of God.

He goes on to conclude, in his clinical opinion, “the defence of insanity would be

available to Mr Aokuso”.

[23] On the basis of the agreed statement of facts and of the expert report evidence, I have reached the conclusion, on the balance of probabilities, that on

4 November 2013, when this offence occurred, Mr Aokuso was insane as that is defined under s 23 and I therefore find Mr Aokuso not guilty of the charge of murder on account of his insanity.

Disposition

[24] Having reached this view, it is then necessary to move to the disposition phase in relation to Mr Aokuso. The disposition of people who are acquitted on account of insanity is governed by ss 23 to 28 of the Criminal Procedure (Mentally Impaired Persons) Act 2003.

[25] For the purposes of this case, s 24 of that Act requires me to consider all the circumstances of the case, including the reports provided by Associate Professor Brinded and Dr Panckhurst, in considering whether it is necessary in the interests of the public that Mr Aokuso be detained as a special patient under the Mental Health Compulsory Assessment and Treatment Act 1992. Special patients are detained indefinitely in a secure mental health facility until such time as the Minister of Health, is satisfied that continued detention is no longer necessary to safeguard the defendant’s own interests and the safety of the public.

[26] Associate Professor Brinded’s evidence concludes that:

Given the seriousness of the offending, the speed with which Mr Aokuso’s mental state deteriorated into psychosis and the requirement for long term treatment and rehabilitation following such a severe illness, I believe that Mr Aokuso would best be treated as a special patient pursuant to s 24(2)(a) of the Criminal Procedure (Mentally Impaired Persons) Act to ensure that there are adequate safeguards in place for the safety of the public and to ensure he receives the care and treatment that he needs”.

[27] Dr Panckhurst, provides further detail as to why an order under s 24(2)(a) is required in the interests of the public. He notes, not just the seriousness of the charge of murder which resulted from the first presentation of a psychotic illness, but also the fact that subsequently while hospitalised, Mr Aokuso assaulted two nursing staff members via punches to the head without warning. After the assault he reported that he had observed the staff members nodding which he had interpreted as a message that he must assault them.

[28] He goes on to say:

The key factors that in my opinion indicate a high ongoing risk to others include the abrupt and severe nature of Mr Aokuso’s psychotic symptoms and the subsequent extreme emotional and behavioural response to these phenomena. This is Mr Aokuso’s first episode of psychosis and as such his capacity to manage his illness, including adherence to treatment and recognition of early warning signs, remains untested outside of the high level of supervision and care provided within the medium secure setting. Further issues to consider include the need for alcohol and drug treatment, illness education, relapse prevention work and psychological therapy, including violence prevention, to assist Mr Aokuso to gain an in-depth understanding of the factors associated with the alleged offence and to reduce his future risk of offending.

[29] He concludes that Mr Aokuso continues to represent a high ongoing risk to the safety of others. Due to the serious nature of the index offence and the serious risks posed in the event of future relapse, he concludes “that it would be most appropriate that this care be provided in conjunction with comprehensive supervision and monitoring of the Ministry of Health as a special patient”.

[30] Accordingly, having had regard to the reports on disposition prepared by Dr Panckhurst and Associate Professor Brinded, I am satisfied, for the reasons in particular identified in Dr Panckhurst’s report dated 12 May 2014, that a special patient order under s 24(2)(a) of the Criminal Procedure (Mentally Impaired

Persons) Act 2003 should be made in respect of Mr Aokuso, and I hereby make that order.

Solicitors:

Raymond Donnelly & Co., Christchurch

JHM Eaton QC, Barrister, Christchurch