R v Mateparae [2014] NZHC 893 (2 May 2014)

Last Updated: 25 July 2014

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2013-091-376 [2014] NZHC 893

THE QUEEN

v

_{TE WERA MATEPARAE}

Hearing:	30 April 2014
Counsel:	G J Burston for Crown I M Antunovic for Defendant
Judgment:	2 May 2014

_{JUDGMENT OF WILLIAMS J}

Introduction

[1] Mr Mateparae is charged with attempted murder and unlawful sexual connection in relation to events on 10 February 2014.

[2] Expert psychiatrists Professor Brinded and Dr Barry-Walsh agree that Mr Mateparae was suffering from a disease of the mind such that, on the balance of probabilities, he was insane at the time of the offending within the meaning of s 23 of the Crimes Act 1961. The Crown agrees that the only reasonable verdict that would follow at trial is that Mr Mateparae is not guilty on account of his insanity.

[3] Based on that consensus, the provisions of the Criminal Procedure (Mentally Impaired Persons) Act 2003 (the CPMIP Act) are engaged. Section 20(2) requires me to hold a hearing to determine whether Mr Mateparae was insane at the time of

_{the offending in terms of s 23 of the Crimes Act, based on expert evidence.}

R v MATEPARAE [2014] NZHC 893 [2 May 2014]

[4] The issues I will address in this judgment are as follows:

(a) whether, on the basis of expert evidence, I am satisfied that Mr Mateparae was, on the balance of probabilities, insane within the meaning of s 23 of the Crimes Act at the time of the offending;

(b) if I am satisfied of this then I must decide the best way to deal with

Mr Mateparae going forward; and

(c) whether Mr Mateparae’s name suppression will continue beyond this point.

[5] I will consider these issues in that order after setting out the facts and dealing with some preliminary matters.

The offending

[6] At about 9.00am on Sunday 10 February 2013 Mr Mateparae was on the Kenepuru Stream Walkway and allegedly approached the victim from behind, grabbed her and groped her chest, abdomen and upper thigh area.

[7] The victim began to scream and Mr Mateparae forced his hand into the victim’s mouth to stop her from screaming. The victim bit his hand, but he forced it further into her mouth and dislodged a tooth in the process. After a continued period of struggle the victim and defendant fell onto the walkway. The defendant then placed one hand around the defendant’s neck and began to strangle her. The victim was still able to scream.

[8] While strangling her, the defendant tried to put his other hand down the victim’s shorts but she was able to curl her legs in such a way as to stop him. He then told her “shut up bitch, let me do it”. The victim could no longer breathe due to the maintained pressure on her throat. She relaxed her legs and the defendant penetrated her vagina with some force with all of his fingers.

[9] He then placed his other hand around the victim’s neck, and the two continued to struggle. She attempted to remove his hands from her neck but was unable to, and so scratched the defendant on his face. During this phase the defendant told the victim several times “it’s going to be OK”. The victim then became unconscious, and the defendant released his hands from her neck.

[10] The defendant then picked the victim up from the walkway and threw her onto the adjacent grass verge. He took the victim’s mobile phone, glasses and sunglasses and threw then into the stream. He was apprehended by Police immediately afterwards.

[11] The victim received extensive bruising, marks and scratches to her neck and had bloodshot eyes. She received bruising to her head, arms, legs and backs and injuries to her genitalia.

Expert evidence

[12] I am greatly assisted by the psychiatric reports prepared by Professor Brinded and Dr Barry-Walsh relating to Mr Mateparae’s mental health, name suppression and disposition.

[13] Dr Barry-Walsh has considered all of the primary materials in the police file in preparing his reports, such as the summary of facts, transcripts and notes from the victim’s interview and job sheets and formal statements of the relevant Police constables and other Police staff. Professor Brinded’s report does not mention whether or not he considered these primary materials.

[14] Each expert interviewed Mr Mateparae, and considered his medical records. Dr Barry-Walsh interviewed him on more than one occasion and also spoke with Mr Mateparae’s mother. Each expert reviewed all prior reports.

[15] The experts also gave viva voce evidence at hearing before me on 30 April

2014.

Responsibility

[16] Although s 20 of the Act does not require it, I must be satisfied of the defendant’s responsibility for the offending.¹ This case has always proceeded on the basis that Mr Mateparae committed the alleged offending (he has admitted as much), and the only issue was whether the insanity defence was available.

Issue 1: insanity

[17] As mentioned above, s 20(2) of the CPMIP Act is triggered upon the agreement of both the Crown and defence that Mr Mateparae was insane at the time of the offending. Section 20(2) provides as follows:

(2) Before or at a trial, the Judge must record a finding that the defendant is not guilty on account of his or her insanity if—

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

(b) the prosecution 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 defendant was insane within the meaning of section 23 of the Crimes Act 1961 at the time of the commission of the offence.

[18] Quite clearly, subs (a) and (b) are satisfied. I must now be satisfied on the basis of expert evidence that Mr Mateparae was insane on the balance of probabilities at the time of the offending within the meaning of insanity in terms of s 23 of the Crimes Act. If I reach such a view I must record that finding,² make

inquiries as to the most suitable method of dealing with Mr Mateparae³ and then

make orders as to the most suitable method of dealing with him based on those inquiries.⁴ I now embark on that process.

_{[19] Section 23 of the Crimes Act defines the defence of insanity as follows:}

¹ _{R v M [2014] NZHC 605 at [14]- [15].}

² _{CPMIP Act 2003, s 20(1).}

³ _{Section 23(1).}

⁴ Sections 24 and 25.

(1) Every one shall be presumed to be sane at the time of doing or omitting any act until the contrary is proved.

(2) No person shall be convicted of an offence by reason of an act done or omitted by him or her when labouring under natural imbecility or disease of the mind to such an extent as to render him or her incapable—

(a) of understanding the nature and quality of the act or omission; or

(b) of knowing that the act or omission was morally wrong, having regard to the commonly accepted standards of right and wrong.

(3) Insanity before or after the time when he or she did or omitted the act, and insane delusions, though only partial, may be evidence that the offender was, at the time when he or she did or omitted the act, in such a condition of mind as to render him or her irresponsible for the act or omission.

...

[20] There are essentially two elements to this defence. The first is whether at the time of committing the offence Mr Mateparae had a disease of the mind. The second element is whether that disease of the mind was operating to such an extent as to render him incapable of understanding the nature and quality of his actions in sexually violating the victim and attempting to murder her or alternatively knowing that those actions were morally wrong having regard to the commonly accepted standards of right and wrong. The experts tended to focus their opinions on s 23(2)(b), as opposed to s 23(2)(a).

[21] Psychosis, from which Mr Mateparae suffers, is a major mental disorder. There is no contest between the psychiatrists as to the severity of psychosis from which the defendant suffers, and has been suffering since at least 2007. The law accepts that such a disorder is a disease of the mind for the purpose of s 23. The first element is therefore established.

[22] As for s 23(2)(b), Professor Brinded and Dr Barry-Walsh agree that Mr Mateparae was overwhelmed by his illness at the time of the offending such that he was incapable of knowing his actions were morally wrong, having regard to the commonly accepted standards of right and wrong.

[23] Professor Brinded places significant weight on the fact that Mr Mateparae’s serious illness had been untreated for quite some time leading up to the offending. His interview with Mr Mateparae established that his violent and sexual visions and hallucinations increase in frequency when his mental state deteriorates, usually as a result of consuming alcohol or smoking drugs during periods where he is not taking medication. This suggests a nexus between such thoughts and his psychotic illness.

[24] Dr Barry-Walsh notes the impulsive nature of the attack. He said:

I have no doubt Mr Mateparae’s capacity to reason as to the moral

wrongfulness of his actions was impaired.

[25] However, Dr Barry-Walsh was less certain than Professor Brinded that Mr Mateparae’s jet-lag, sleep deprivation and his choice to become intoxicated were not primary causes of the offending. According to the victim Mr Mateparae swore at her and told her to “shut up”, which, according to Dr Barry-Walsh, implies some awareness of what he was doing and appreciation of her resistance.

[26] However, despite the evidence that Mr Mateparae had brief moments of awareness during the offending, both experts consider that he ‘lost touch with reality during his psychosis. Dr Barry-Walsh refers to this as the passivity phenomena, and considers it, as does Dr Brinded, a key characteristic of Mr Mateparae’s psychosis.

[27] On reflection, Dr Barry-Walsh accepted that psychosis was the primary driver of the offending:

Notwithstanding the longstanding use of sexually violent pornography, his intoxication and sleep deprivation, I find it more likely than not that Mr Mateparae’s mental disorder sufficiently undermined his capacity to think rationally, with some moderate degree of sense and composure about the moral quality of the act, to the extent that he did not know the act was wrong.

[28] The experts also note Mr Mateparae’s disposition immediately after the offending. Dr Barry-Walsh’s first report contains an account from Constable Southon a couple of hours after Mr Mateparae was arrested. Constable Southon reported Mr Mateparae saying “I wish I killed her, is she dead?” and “Fuck, I killed her aye. I hope I killed the bitch, because she doesn’t deserve to live after what I just

did to her.” He did not appear to understand the questions put to him as to why he attacked the victim, responding “I choked the bitch out man! I killed her. Is she dead?”

[29] Overall, based on the opinions of the psychiatrists, and the information about Mr Mateparae’s state immediately after the offending, there is little doubt that Mr Mateparae was incapable of knowing that his actions were morally wrong.

[30] I am therefore satisfied that, on the basis of expert evidence, Mr Mateparae was, on the balance of probabilities, insane at the time of the offending within the meaning of s 23 of the Crimes Act. The third requirement of s 20(2) of the CPMIP Act is met.

[31] Pursuant to s 20(1) of the CPMIP Act, I record the finding that Mr Mateparae is not guilty of the charges on account of his insanity.

[32] Having recorded this finding, I now turn to consider the most suitable method of dealing with Mr Mateparae.

Issue 2: how now to deal with Mr Mateparae

Legislative framework

[33] Part 2, subpart 3 of the CPMIP Act governs the disposition of defendants acquitted on account of insanity. Sections 23-25 are in play with regards to Mr Mateparae.

[34] Section 23 requires the court to make inquiries under ss 24 or 25 as to the

“most suitable method of dealing with the person” acquitted.

[35] Section 24 provides:

Detention 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.

[36] Where the Court does not consider a s 24(2) order “necessary”, s 25 provides for alternative and less restrictive orders. As noted by the Court of Appeal in M(CA819/2011) v R:⁵

The most important practical distinction between orders made under ss 24(2) and 25(1)(a) for present purposes is that, where an order is made under s 24(2), the Minister [of Health] determines how long the order stays in place ... [I]n practice, the Minister consults the Director of Mental Health (the Director) when exercising the power under s 33 of the CPMIP Act to direct that a special patient shall be discharged or held as a patient or care- recipient.

[37] Neither counsel nor the experts suggest that disposition under s 25 is appropriate. There is agreement that the appropriate order is one under s 24(2)(a). Section 25 can be set to one side accordingly and s 24(2)(b) has no application.⁶

[38] The correct approach to s 24 was helpfully set out by the Court of Appeal, also in M(CA819/2011) v R. Lang J stated:

⁵ _{M(CA819/2011) v R [2012] NZCA 142 at [11].}

⁶ Section 24(2)(b) is directed at defendants with intellectual disabilities – Mr Mateparae’s mental illness is not an intellectual disability, so he is more properly dealt with under the Mental Health (Compulsory Assessment and Treatment) Act 1992.

[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.

[39] The CPMIP Act requires this inquisitive process, given the serious and potentially long-lasting consequences of what is a restrictive detention order.

Expert evidence

[40] As I have said, both Professor Brinded and Dr Barry-Walsh agree that Mr Mateparae should be detained in a hospital as a special patient under the Mental Health (Compulsory Assessment and Treatment) Act 1992, pursuant to s 24(2)(a) of the CPMIP Act.

[41] Dr Barry-Walsh notes in his report that while Mr Mateparae resided in the community his mental illness was largely untreated. His aggression and violent thoughts, exacerbated when untreated, pose a significant risk for Mr Mateparae and the community if he is released. Dr Barry-Walsh considers:

[T]he greater security checks and balances available through the special patient order in my view are necessary to ensure that Mr Mateparae can be adequately rehabilitated and returned eventually to the community.

[42] Professor Brinded in oral evidence said that the severity of the attack on the victim, the seriousness of Mr Mateparae’s illness and his need for treatment mean a special patient order is the only rational conclusion in this case. He too considered the benefits of the “safety net” provided by a special patient order, such as Ministry of Health assistance, safe treatment and secure rehabilitation.

My conclusion

[43] Having considered all the circumstances of the case and the experts’ opinions, I have no doubt that, it is in the interests of the public to make an order under s 24(2)(a). Mr Mateparae is a young man with an unfortunate track record of mental health illness. He committed a serious violent and sexual attack on an unsuspecting victim who was entitled to feel safe in her community. The most important thing is that Mr Mateparae receive the treatment he desperately needs, and has gone without for some years. It is “necessary”, meaning expedient or desirable,

that this take place.⁷

[44] Mr Burston for the Crown expressed concern in relation to the risk that, upon gradual reintegration into the community, the victim may encounter Mr Mateparae as they are located in the same community. Understandably this is undesirable for the victim, and for Mr Mateparae. Dr Barry-Walsh assured me that in his role as a director of the special patient programme, staff are alerted to the risks in relation to the victims of visits in the community. I am satisfied with that assurance.

[45] I am satisfied that the interests of the public are such that Mr Mateparae should be required under s 24(2)(a) to be a special patient under the Mental Health (Compulsory Assessment and Treatment) Act. I make this order accordingly.

Suppression

[46] Mr Mateparae seeks permanent name suppression. He is supported in this by Dr Barry-Walsh. He says that suppression is reasonably necessary to assist Mr Mateparae’s treatment and rehabilitation. The Crown opposes saying that the public’s right to know is paramount.

[47] Section 200(2)(a) of the Criminal Procedure Act 2011 provides that this

Court can make a suppression order of the kind sought here, if the Court is satisfied that publication would be likely to:

⁷ M(CA819/2011) v R, above n5, at [17]; citing Environmental Defence Society v Mangonui County

[1989] 3 NZLR 257 at 260.

(a) cause extreme hardship to the person charged with, or convicted of, or acquitted of the offence, or any person connected with that person

...

[48] The starting point is open justice and the applicant has a very high hurdle to overcome. Extreme hardship is the standard to be met. In this case, the argument is that disclosure will hamper Mr Mateparae’s treatment while he is a special patient and may seriously impact upon his rehabilitation if and when he is released. Dr Barry-Walsh indicated that although Mr Mateparae was extremely anxious over publication at an earlier stage,⁸ Mr Mateparae’s concern now relates more to embarrassment for his family. Dr Barry-Walsh said that his mental illness (and perhaps his treatment) have caused a significant flattening of mood so that in effect he displayed rather less of the anxiety one might expect over the question of

publication. But Dr Barry-Walsh continued:

However, the Court may wish to also consider the possibility that loss of name suppression may be more of an issue when Mr Mateparae is being rehabilitated back into the community. Personal experience suggests that at times this can lead to unwanted media attention or broader community knowledge and scrutiny which can undermine rehabilitation.

[49] Dr Barry-Walsh identified one case where rehabilitation was significantly affected by media focus once the individual concern was released.

[50] For the Crown, Mr Burston argued that treatment of Mr Mateparae was not the only consideration here. Members of the community, neighbours, work colleagues and potential victims (in the event of a relapse after release) have a right to know that Mr Mateparae has been found not guilty of serious and violent sexual offending by reason of insanity.

[51] More broadly, Mr Burston argued, the public interest in open justice ought not to be easily dislodged and in this case concerns over publication after release are long term, non-specific and speculative.

[52] Mr Burston also argued that a blanket suppression order could well prevent the authorities from being able to advise parties in the community of Mr Mateparae’s

⁸ R v Mateparae [2013] NZHC 2772.

background where such advice is in fact highly desirable – teachers at educational institutions, employers and the like.

[53] In response, Mr Antunovic made the point that Mr Mateparae will be a special patient for some time and even after release, will be supervised by clinicians in a relatively intensive way for a period of months or even years. Mr Antunovic argued that the impact of media attention on release is likely to undermine Mr Mateparae’s mental wellbeing and will therefore amount to extreme hardship in terms of s 200 of the Criminal Procedure Act.

[54] In my view, any interceding event that would have the effect of undermining Mr Mateparae’s mental wellbeing must necessarily amount to the imposition upon him of an extreme hardship. He has, after all, been very unwell indeed and a return to that status would be a disaster for him. What is more, it may well increase the risk of harm to the community by causing Mr Mateparae to relapse into violent psychotic behaviour. Thus, Mr Mateparae’s mental wellbeing and the safety of the community are separate and important considerations under s 200(2)(a) but they are, necessarily, closely intertwined.

[55] The right of members of the public to know about Mr Mateparae and, to take such steps as they may deem appropriate in order to guard against any threat they feel emanating from him, is also a significant consideration. The difficulty is that these competing considerations can be caught up in a kind of conundrum of mutually assured destruction.

[56] What is more, any conclusions I reach here are unnecessarily speculative – as Dr Barry-Walsh frankly admitted. How do we know the media is likely to be interested in this story? How do we know that Mr Mateparae is likely, upon supervised release, to be so irresilient as to become mentally unwell over unwelcome public attention for himself and his whanau?

[57] There is unquestionably a danger to Mr Mateparae in publication, and a concomitant danger to the community in that possibility but there is no way to quantify it. All that can be said is that extreme hardship will be a likely consequence

if certain other preconditions are met and those preconditions are speculative only at this stage. Even Dr Barry-Walsh put the matter no higher than “a possibility”. The statute requires me to be satisfied that publication is “likely to” cause Mr Mateparae extreme hardship. Because there are so many imponderables here, that statutory threshold cannot be met.

[58] The application for suppression is dismissed accordingly.

[59] I finally note that an application was made by the Dominion Post on 1 May

2014 under cl 13 of the Criminal Proceedings (Access to Court Documents) Rules

2009 for access to a copy of the orders made at hearing on 30 April 2014. Given my conclusions on suppression and the principle of open justice contained in cl 16(d) of the Rules, I see no reason to deny this application, though I consider it sufficient that the orders be made available for inspection via Court Registry under the supervision

_{of an officer of the Court.}

_{Williams J}

Solicitors:

Luke Cunningham & Clere, Wellington

I M Antunovic, Barrister & Solicitor, Wellington