R v Mason [2018] NZHC 2116 (17 August 2018)

Last Updated: 27 September 2018

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY I TE KŌTI MATUA O AOTEAROA TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CRI-2018-070-788 [2018] NZHC 2116

THE QUEEN

v

TAMATI HAKARAIA MASON

Hearing:	17 August 2018
Appearances:	A Pollett for Crown A C Balme and T R Bayley for Defendant
Judgment:	17 August 2018

JUDGMENT OF LANG J

[on hearing conducted under s 20(2) of the Criminal Procedure (Mentally Impaired Persons) Act 2003]

This judgment was delivered by me on 17 August 2018 at 3.30 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date...............

R v MASON [2018] NZHC 2116 [17 August 2018]

[1] Mr Mason is charged with the murder of Ms Ariana Mahu on 22 February 2018. He has raised a defence based on insanity. As a result, I have conducted a hearing under s 20 of the Criminal Procedure (Mentally Impaired Persons) Act 2003 (the Act) to determine whether he should be found not guilty of the charge on the ground of insanity.

The Crown case

[2] The facts giving rise to the charges were very recently outlined by Edwards J when she conducted hearings under ss 9 and 14 of the Act to determine whether Mr Mason was fit to plead and stand trial.¹ I gratefully adopt her summary of the Crown case.

[3] Shortly after 11.30 pm on 22 February 2018, Ms Mahu was helping others in the kitchen area of a marae whilst a tangi was in process. Mr Mason had also been at the marae for most of the day. Mr Mason knew Ms Mahu and had spent time with her and her whanau earlier that day.

[4] The Crown alleges that, with no prior warning, Mr Mason approached Ms Mahu holding a large knife he had picked up from the kitchen. He then proceeded to stab her several times in and around her neck. Ms Mahu tried to escape, but eventually fell to the floor. As she lay on the floor, Mr Mason continued to attack her. Others in the vicinity attempted to intervene, but Mr Mason confronted them whilst still holding the knife. He eventually left the building but was followed by those who had witnessed what had occurred. He was eventually overpowered and restrained until the police arrived.

[5] Tragically, Ms Mahu died at the scene. When the police interviewed Mr Mason about his role in causing her death, he admitted having picked up the knife with the intention of stabbing and killing Ms Mahu. He also spoke about Ms Mahu disrespecting him and his family, and spoke about the involvement of a mākutu. Mr Mason was clearly aware he had killed Ms Mahu. He showed no signs of remorse,

¹ R v Mason [2018] NZHC 2063.

and told police he was relieved about what had happened and was prepared to face the
consequences.

The law

[6] Section 20 of the Act relevantly provides:

20 Finding of insanity

...

(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.

...

[7] There is no dispute regarding the first factor set out in s 20(2)(a). Mr Mason has squarely raised the defence of insanity.

[8] Section 20(2)(b) is also satisfied because the prosecution agrees that the only reasonable verdict is one of not guilty on account of insanity. The only remaining issue is whether, in terms of s 20(2)(c), I can be satisfied on the basis of expert evidence that Mr Mason was insane within the meaning of s 23 of the Crimes Act 1961 when he killed Ms Crawford.

[9] This is an important matter because it requires the Court, independently of the attitudes taken by the Crown and the defendant, to reach its own conclusion as to whether a defendant was insane within the meaning of s 23 of the Crimes Act 1961 at the time of the commission of an offence. It is important that the Court is not seen to be a mere “rubber stamp” for the views expressed by professionals or, indeed, by the Crown and defence. This is a vital safeguard because our criminal justice system generally requires crimes such as this to be determined by a jury and not by a Judge
sitting alone. It is equally important, however, that in appropriate cases people who intend to raise a defence of insanity are permitted to have that issue determined in an expedited form before a Judge rather than being put through the ordeal of a trial by jury.

Issues

[10] There can be no doubt from what Mr Mason told the police and psychiatrists that he committed the acts that caused Ms Mahu’s death. I am therefore required to determine three issues on the balance of probabilities:

(a) Did Mr Mason commit those acts whilst labouring under a disease of the mind?

(b) If so, did that disease of the mind cause him not to understand the nature and quality of his acts; or

(c) Did the disease of the mind result in him not knowing that the act of killing Ms Mahu was morally wrong, having regard to the commonly or accepted standards of right and wrong?

Was Mr Mason suffering from a disease of the mind when he killed Ms Mahu?

[11] The evidence on this issue is compelling. Dr Dean, the psychiatrist engaged by the defence, and Dr Chaplow, the psychiatrist engaged by the Crown, agree that Mr Mason has suffered for some considerable time from schizophrenia. This manifested itself to those around Mr Mason in numerous ways during the months and days leading up to 22 February 2018. Members of Mr Mason’s family and other persons who dealt with him during this period observed him talking to himself and acting strangely.

[12] Both psychiatrists refer to the fact that Mr Mason says he was hearing voices. Over time, these intensified and became more and more overwhelming. In addition to auditory hallucinations, Mr Mason has been subject to delusions and disorganised thinking. These are all classic symptoms of schizophrenia.
[13] I have no reason to doubt the diagnoses made by the psychiatrists. Schizophrenia is now well recognised as a disease of the mind for the purposes of s 23 of the Crimes Act. It follows that I have no doubt Mason committed the acts that led to Ms Mahu’s death whilst laboring under a disease of the mind.

Did the disease of the mind cause Mr Mason not to understand the nature and quality of his acts?

[14] Mr Mason has told the police and the psychiatrists that he intended to stab and kill Ms Mahu. On its face, this suggests he was aware of the nature and quality of the actions that he undertook. He was aware that he was killing a person and Ms Mahu was the person he intended to kill.

Did the disease of the mind result in Mr Mason not knowing that the act of killing Ms Mahu was morally wrong, having regard to the commonly accepted standards of right and wrong?

[15] In considering this issue I draw considerable assistance from the following passage of Dr Dean’s report dated 29 May 2018:

Insanity as defined by Section 23 of the Crimes Act 1961:

Tamati described intending to stab and kill the victim. This suggests he was aware of the nature and quality of his actions. However, he was convinced he needed to stab and kill the victim in order to save himself, his whanau and his Iwi from a Makutu. He believed he was experiencing commands from the spirit world, telling him to kill the victim, otherwise she would destroy his family and his Iwi. He believed the victim entered into a conspiracy with the police and the Government to blackmail and for financial gain. He believed he was a God to his people, a Tohunga and was receiving messages from his Tupuna. He believed the victim was controlling his body, preventing him from telling others about her influence. He believed he had clairvoyant powers and was acting under Maori cultural customs to get rid of a “monster” from the physical world. Although he recognised his actions were legally wrong and he could be imprisoned, he felt relieved by the victim’s death, thought anyone would do the same thing if party to the same information he had available to him and his actions were justified to save his Iwi. In my opinion he was unable to understand the moral wrongfulness of his actions having regard to the commonly held standards of right and wrong.

I therefore believe Tamati has a defence of insanity available to him.

[16] Dr Chaplow agrees with Dr Dean’s conclusion regarding this issue. He expresses his opinion as follows:

c. My opinion in the matter is that Tamati Mason does have an insanity defence on the ground of having a ‘disease of the mind’ that pre- existed the killing and because of his ‘disease’ he did not understand the moral nature of his actions (as is commonly understood) as he was acting under a compulsion of a delusion and command hallucination while having no insight into the legal and moral nature of the wrongfulness of his actions at the time of the killing.

[17] I see no reason to differ from the views expressed by the psychiatrists regarding this issue. I am therefore satisfied the schizophrenia resulted in Mr Mason not knowing that his act of killing Mr Mahu was morally wrong, having regard to the commonly accepted standards of right and wrong.

[18] As a result, Mr Mason was insane in terms of s 23 of the Crimes Act 1961. I therefore record my finding to that effect under s 20(2) of the Criminal Procedure (Mentally Impaired Persons) Act 2003.

Disposition

[19] Where a person has been acquitted on account of his or her insanity, s 23 of the Act requires the Court to direct enquiries be made to determine the most suitable method of dealing with the person under s 24 or s 25 of the Act. Ordinarily that would require the Court to adjourn the proceeding to enable further enquiries to be made regarding the issue of disposition. In the present case, however, both psychiatrists have already expressed firm views regarding that issue. I am therefore in a position to move directly to the disposition phase of the procedure prescribed by the Act.

[20] The Court is required to consider all the circumstances of the case in determining which order to make.² Having considered those circumstances and the views expressed by one or more health assessors, the Court must make one of the orders prescribed by s 24 or s 25 if it is satisfied the making of the order is in the interests of the public or any person or any class of person who may be affected by the Court’s decision. The standard of necessity sets a high threshold and mere expediency or desirability is not sufficient.³

² Criminal Procedure (Mentally Impaired Persons) Act 2003, s 24(1)(a).

³ M (CA819/11) v R [2012] NZCA 142, (2012) 28 FRNZ 773 at [17].

[21] The Court of Appeal described the public interest in this inquiry as follows:⁴

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.

[22] There are significant differences between the types of disposition prescribed by the two sections. These were helpfully summarised by Simon France J in R v W.⁵ In broad terms, s 24 provides for special care status, whereas s 25 provides a range of less restrictive options. In terms of clinical treatment, the two options are similar because they will both enable Mr Mason to continue to receive appropriate treatment for his schizophrenia. The real difference between the two sections lies in the decisions that will need to be made in the future regarding Mr Mason’s release back into the community.

[23] Where an order is made under s 24, many decisions are made under the oversight of the Ministry of Health. By way of example, the Ministry would be required to approve any proposal that Mr Mason be granted leave from the hospital so that he can spend time within the community whilst he remains a special patient. Furthermore, the ultimate decision to remove Mr Mason from special patient status can only be made by the Minister of Health. Special patient status also provides clinicians with much greater powers to impose conditions on Mr Mason following his release back into the community.

[24] By way of contrast, the clinicians are responsible for making more decisions where an order is made under s 24. They have the power to make decisions in relation to matters such as release back into the community. The ability to control persons once they have been released is also quite restricted.

[25] In the present case both psychiatrists are satisfied that the only means by which Mr Mason can be properly treated whilst at the same time ensuring the safety of the community is for him to be made a special patient under s 24 of the Act. I am of the

⁴ M (CA819/2011) v R, above n 3, at [7].

⁵ R v W [2016] NZHC 2923 at [37]- [40]..

same view. Mr Mason is currently a danger to the safety of the community, and this state of affairs will continue until such time as he has received considerable treatment in a secure environment. His eventual release back into the community is also a matter that will need to be very carefully managed and monitored.

[26] I am satisfied that the only realistic option in the present case is for an order to be made under s 24. I therefore make an order under s 24(2)(a) of the Act that Mr Mason be detained in a hospital as a special patient under the Mental Health (Compulsory Assessment and Treatment) Act 1992.

Name suppression

[27] Up until now an interim order has been in force suppressing Mr Mason’s name and identifying details from publication. Mr Balme filed a memorandum yesterday in which he advised he could not realistically advance an argument in support of an application for continued or final suppression of Mr Mason’s name. The interim order is accordingly discharged with immediate effect.




Lang J

Solicitors:

Pollett Legal Ltd, Tauranga

A C Balme, Barrister, Tauranga T R Bayley, Barrister, Tauranga