R v Hemopo [2014] NZHC 1423 (23 June 2014)

Last Updated: 18 August 2017

ORDER PROHIBITING PUBLICATION OF NAME AND IDENTIFYING PARTICULARS OF ACCUSED UNTIL COMPLETION OF TRIAL

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2013-091-1241 [2014] NZHC 1423

THE QUEEN

v

_{RUKA TE PONO HEMOPO}

Hearing:	18 June 2014
Counsel:	G J Burston for Crown Mr Hemopo in person V C Nisbet, Amicus Curiae
Judgment:	23 June 2014

JUDGMENT OF THE HON JUSTICE KÓS (Fitness to plead: reasons)

[1] Mr Hemopo was for trial on 19 May 2014. Shortly before trial the visiting psychiatrist at Rimutaka Prison expressed concern about Mr Hemopo’s fitness to plead. Neither the defence nor the Crown put it in issue. But the psychiatrist’s report triggered the ss 9 and 14 process under the Criminal Procedure (Mentally

Impaired Persons) Act 2003.¹ The trial date was vacated.

[2] On 18 June 2014 a hearing was convened under s 14 of the Act. I heard and examined two psychiatrists. I found Mr Hemopo fit to stand trial. This judgment

_{sets out my reasons for that finding.}

¹ _{Herein the Act.}

R v HEMOPO [2014] NZHC 1423 [23 June 2014]

Statutory process

[3] The process under the Act is a three-stage one:

(a) Participation: Section 9 of the Act provides that before a Court can determine a defendant’s fitness to stand trial, the Court must satisfy itself, on the balance of probabilities, that the evidence against the defendant is sufficient to establish that he “caused the act or omission that forms the basis of the offence with which the defendant is charged”.

(b) Mental impairment: Section 14 applies if the s 9 threshold has been met. In that case the Court must receive the evidence of two health assessors as to whether the defendant is “mentally impaired”.

(c) Fitness to stand trial: Section 14 provides, further, that if the Court finds, on the balance of probabilities, that the defendant is mentally impaired, it must give the parties an opportunity to present evidence as to whether the defendant is unfit to stand trial and make a finding on that issue. In doing so it considers a number of factors. They concern the defendant’s ability to understand the charges and communicate. Does he or she understand his or her options, and the consequences thereof? Is he or she able to plead? Will he or she follow and understand the trial process? Will he or she be able to defend the charges, instruct counsel (where applicable) and communicate with the Court?

First stage: participation

[4] The scope of s 9 remains controversial. The drafting is unhappy, and the precise purpose of the provision frustratingly obscure.² The purpose of the provision has been said to be to avoid the possibility of a person being subjected to dispostive

_{orders denying liberty in the event he or she is found unfit to plead, in circumstances}

² See for example Warren Brookbanks “Special Hearings Under CPMIPA” [2009] NZLJ 30; R v

Te Moni [2009] NZCA 560 at [79]–[80].

where an offence has not in fact been committed.³ Despite concern expressed by the

Court of Appeal as to lack of clarity in the provision, Parliament has not revisited it.⁴

There are now a number of conflicting authorities concerning the extent to which the

Court examines anything beyond the bare actus reus of the offence.⁵

[5] What is at issue under s 9 is whether the defendant “caused” certain elements of the offence. The use of the words “caused the act or omission that forms the basis of the offence” in s 9, does seem to focus on the physical elements of the offence – the “harm” elements of the actus reus. Certainly it seems to be a different test from, say, prima facie guilt. That test would require consideration of all elements, whether actus reus or mens rea.

[6] Take, for instance a charge of sexual violation, under s 128 of the Crimes Act

1961. The elements of the offence are:

(a) penetration (or connection);

(b) absence of complainant consent; and

(c) absence of reasonable defendant belief as to complainant consent. Which of these are s 9 elements? The first plainly is. But it is hard to say that the

second is. How does (or could) the defendant “cause” that element? What, then, about the third? The absence of reasonable belief by the defendant in consent is something the Crown must ultimately prove beyond reasonable doubt. But, again, it is hard to see how it fits within an objective causation analysis.⁶

[7] What has to be remembered is that a defendant found unfit to plead because of mental impairment is then subject, potentially, to dispositive orders under s 24 not

³ _{R v Te Moni [2009] NZCA 560 at [68].}

⁴ _{At [80].}

⁵ R v Roberts (No 2) HC Auckland CRI-2005-02-14492, 22 November 2006; R v De’Wes (No 1)

HC Gisborne CRI-2006-016-3323, 4 November 2008; R v Cumming HC Christchurch CRI-

2001-009-835552, 17 July 2009; R v Lyttleton (No 1) HC Auckland CRI-2008-044-9466,

_{4 November 2009 and R v T (No 2) [2013] NZHC 2299.}

⁶ See for example R v Antoine [2000] UKHL 20; [2001] 1 AC 340 (HL) at 376–377 (referred to in R v Te Moni

[2009] NZCA 560 at [74].

because of any presumptive guilt of an offence, but because of the existence of that impairment, and involvement in an event that may or may not have been criminal. Section 24(1)(a) requires the court to consider “all the circumstances of the case” when making a decision whether an unfit defendant should, in the public or individual interest, be detained as a special patient or special care recipient. But that does not involve any presumption as to guilt. Section 9 seems to me more likely to be intended simply to exclude a likely non-participant than anything more sophisticated than that.

[8] In this case Mr Hemopo concedes that the s 9 test has been met by the Crown. That is, he accepts that his participation in the events charged has been shown on the lesser standard of balance of probabilities. On the material before me, I think that concession must be right. It concludes the first stage of this inquiry.

Second stage: mental impairment

[9] “Mentally impaired” is undefined in the Act. On reflection, I think it must encompass more than just “mental disorder” (as defined in the Mental Health (Compulsory Assessment and Treatment) Act 1992) and “intellectual disability” (as defined in the Intellectual Disability (Compulsory Care and Rehabilitation) Act

2003).⁷ It is possible it includes, therefore, other mental impairments, such as those

caused by degenerative neurological condition, substance abuse or acquired brain injury, involving short term memory and frontal lobe deficits, low intelligence or impaired cognition, any of which lead to difficulty in organising or processing information and responding.⁸ The focus of the undefined term should be on whether the defendant has a condition that impairs mental function to the extent it may seriously affect the defendant’s ability to comprehend charges, consider options and

_{consequences, plead, or mount a defence.}⁹

⁷ _{This represents a modification of the views I expressed in R v T (No 2) [2013] NZHC 2299.}

⁸ See R v WWC HC Auckland T247/01, 28 January 2004 at [38]–[48], a case where evidence was excluded as having breached s 23(1)(b) of the New Zealand Bill of Rights Act 1990, where a mentally impaired defendant – a result of substance abuse – waived his right to a legal adviser and was interviewed by police officers.

⁹ See for example SRV v R [2011] NZCA 409; [2011] 3 NZLR 638 at [40].

[10] If the defendant does not have a mental impairment, he or she by definition is fit to stand trial. Section 14(4) provides that the Court is to continue with the proceeding. If a defendant is found to have a mental impairment, however, s 14(2)(b) requires the Court to determine whether the defendant is “unfit to stand trial” – the third stage of the process.

[11] I return to the facts of this case, and the question of whether Mr Hemopo is

“mentally impaired”.

Evidence

[12] I received two written psychiatric reports. One from Dr Holmes, and the other from Dr Barry-Walsh.

[13] Dr Holmes’ opinion depended in part on an interview directly with Mr Hemopo (lasting approximately 30 minutes), and a discussion with his responsible clinician at Porirua Hospital, Dr Susanna Every-Palmer. Dr Every- Palmer and her colleagues had found Mr Hemopo organised, polite and cooperative, with no obvious evidence of psychotic symptoms.

[14] Dr Holmes found Mr Hemopo to have good concentration, and excellent knowledge. He had a “somewhat paranoid evaluation of the Court process”. He has not presented any acute psychotic symptoms. He does not need continued hospitalisation. He likely has a delusional disorder, probably longstanding, although he disputes that. He was able to give a detailed account of events at Court and the Court process. Dr Holmes concluded that there was no evidence to find that Mr Hemopo was unfit to stand trial.

[15] In oral evidence before me, Dr Holmes concluded that Mr Hemopo was intermittently mentally impaired. He had an intermittent delusional disorder. He also had an intermittent abnormality of mood. When these conditions existed, he fell within the definition of “mental disorder” in s 2 of the Mental Health (Compulsory Assessment and Treatment) Act 1992. That provision (with which both doctors were thoroughly familiar) provides:

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

[16] Dr Holmes did not consider it was a case where s 2(1)(b) applied. Nor was it by any means a continuous condition. Neither “intellectual disability” or the alternative innominate basis for finding mental impairment applied.

[17] Dr Barry-Walsh could offer only a limited opinion. He was unable to speak in any detail with Mr Hemopo, who by and large declined to cooperate with him. His own impressions were on the dealings he had with Mr Hemopo was that he is persecutory and mistrustful in his mindset. That is consistent with past diagnosis of delusional disorder and paranoid personality. With the benefit of the observations also of Dr Every-Palmer, there is no evidence of impairment in cognitive capacity. Mr Hemopo had been active in preparing his case. He is organised, eats and drinks well, is polite and interacts well with other patients. He is capable of giving, and has given a coherent account of his planned defence. He functions well with intact cognition, interpersonal skills and without evidence of disorganisation.

[18] Dr Barry-Walsh, in his oral evidence, was also of opinion that Mr Hemopo is mentally impaired. He at times suffers from a mental disorder, based on a delusion. He is not presently mentally disordered, but at times he becomes so. He is not intellectually disabled, and there is no other basis for a finding of mental impairment.

Conclusion

[19] I find that Mr Hemopo is mentally impaired. He suffers from an intermittent mental disorder which may affect his capacity to function in the context of a trial. It is therefore necessary for me to consider the third stage of the inquiry, whether he is unfit to be tried.

Third stage: fitness to stand trial

[20] Many mentally impaired persons are nonetheless tried by the Courts. It is only where they are “unfit to stand trial” that that course is averted. This term is defined in s 4(1) of the Act:

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.

[21] The central consideration is that set out in s 4(1)(a). In P v Police¹⁰

Baragwanath J applied the so-called “Presser” principles.¹¹ The New Zealand Court of Appeal has said they provide a useful non-exhaustive set of guiding principles, although they are not the test itself.¹² The Presser principles involve consideration of whether the defendant can understand what it is that he or she has been charged with, plead to the charge and exercise his or her right of challenge, follow, in general terms, the course of the proceeding before the Court, understand the substantial effect of any evidence given against him or her, make his defence to, or answer, the charge, decide what defence he or she would rely on, give instructions to his or her legal representative (if any), and make his or her version of the facts known to the Court and to his or her legal representative, if any.

Evidence

[22] I have summarised already the evidence given by the psychiatrists. Dr Barry- Walsh, as I have noted, concluded that except when the delusional disorder takes

_{hold, Mr Hemopo is able to function well with intact cognition, interpersonal skills}

¹⁰ _{P v Police [2007] 2 NZLR 528; (2006) 23 CRNZ 804.}

¹¹ _{R v Presser [1958] VicRp 9; [1958] VR 45 at 48.}

¹² Solicitor-General v Doherty [2012] NZCA 405; [2013] 3 NZLR 586 at [57].

and without evidence of disorganisation. On that basis he concluded that Mr Hemopo was fit to stand trial on the balance of probabilities. But he deferred overall to Dr Holmes who was able to make the more detailed assessment.

[23] Dr Holmes concluded there was currently no evidence that Mr Hemopo was unfit to stand trial. In oral evidence she confirmed that she considered that Mr Hemopo understood the charges he faced, understood the consequence of the charges, was capable of conferring with the amicus, and understood the consequences of decisions he would have to make during the course of trial. Asked whether he was capable of running his defence and communicating with the jury, Dr Holmes said:

I find that question difficult to answer Your Honour. I certainly have found with my interactions with him that he has managed interviews very well but I wouldn’t – I’m not sure about, you know, how much stress that kind of environment will place on him.

Mr Nisbet then asked this question:

As Mr Hemopo is self-represented, he is expected to address the jury and address the Court during the process. It will be a reasonably lengthy process. Is it your position that you really don’t know how he will react but you know that under pressure it could prove difficult for him?

It would prove difficult for him but I mean I think that would be a difficult situation for a number of people. He certainly has managed lengthy interviews well so, I mean, he will need support and I think if he is given good explanations and reassurance he may well manage that. It is difficult to say.

[24] I add here that my own observations of Mr Hemopo at the hearing suggested that, with assistance and guidance from Mr Nisbet, he is currently capable of pleading and conducting his defence.

Conclusion

[25] I find that Mr Hemopo is not unfit to stand trial at the present time. He is able to plead, appreciate the consequences of decisions, and communicate with amicus and the Court, so long as his intermittent impairment does not overtake his capacity to reason.

[26] As the decision of the Supreme Court in Cumming v R makes clear, a fitness assessment may need to be revisited during trial.¹³ It is possible that stress or other factors may cause Mr Hemopo’s latent impairment to re-emerge, affecting his fitness to continue to conduct his own defence. In the event of reactivated impairment, arrangements may need to be made by the trial Judge to adjust the ordinary course of trial to allow for a fair defence to be run. If that cannot be done satisfactorily, a

different assessment may have to be reached at that point.

Result

[27] Subject to the caveats in the preceding paragraph, Mr Hemopo is fit to stand trial.

Stephen Kós J

Solicitors:

Crown Solicitor, Wellington

And to:

Mr Hemopo

¹³ Cumming v R [2008] NZSC 39; [2010] 2 NZLR 433. See also R v (Hasani) v Blackfriars Crown

Court [2005] EWHC 3016; [2006] 1 All ER 817.