RUSSELL JOHN TULLY v R [2020] NZCA 690

RUSSELL JOHN TULLY v R [2020] NZCA 690 [21 December 2020]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA288/2016[2020] NZCA 690BETWEEN RUSSELL JOHN TULLYAppellantAND THE QUEENRespondentHearing: 8 October 2020Court: Miller, Venning and Katz JJCounsel: Appellant in personM J Lillico and R K Thomson for RespondentCWJ Stevenson as Counsel assisting the CourtJudgment: 21 December 2020 at 3.00 pmJUDGMENT OF THE COURTA The application for leave to admit new evidence on appeal is granted.B The appeals against conviction and sentence are dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Miller J)TABLE OF CONTENTSThe facts [5]Mental state inquiries [18]Mr Tully initially found fit to stand trial [18]Mr Tully triggered CPMIP fitness inquiry [19]The expert reports [21]The s 9 involvement hearing [25]The s 14 mental impairment hearing [29]The Judge's decision finding Mr Tully fit to stand trial [31]Adjournment of trial scheduled for November 2015 [38]Mr Tully's health [39]Legal representation [44]Decision to proceed to trial without own counsel [46]Mr Tully's presence at trial [50]Mr Tully's election not to give evidence [60]The summing up [71]The conviction appeal [73]The appeal process [73]The grounds of appeal [78]New evidence about Mr Tully's mental health [81]Professor Porter's report [82]Dr Dean's reports [85]New evidence about the trial [97]Was Mr Tully fit to stand trial? [108]The test [108]Mr Tully was not unfit on the evidence before Mander J [112]The new evidence tends to confirm mental impairment [113]The argument for Mr Tully [114]Our conclusions [116]Conclusion: Mr Tully was fit to stand trial [123]Was a defence of insanity available, and should it have gone to the jury? [124]Insanity [129]When must an insanity defence be left to the jury? [132]Was there an evidential foundation for insanity? [134]Was the Judge wrong to preclude insanity or insane automatism when he did?[137]Do the evidence of Dr Dean and the report of Professor Porter make a difference?[143]Conclusion: the Judge was right not to leave insanity to the jury [146]Was Mr Tully denied his right to counsel at trial? [148]Did Mr Tully's exclusion from the courtroom make his trial unfair? [154]The role played by counsel assisting the court [164]Conviction appeal result [173]The sentence appeal [174]The sentencing [174]Submissions [183]Analysis [187]Sentence appeal result [201][1] On the morning of Monday 1 September 2014, John Tully walked into theAshburton office of Work and Income New Zealand (WINZ), wearing a balaclava andholding a sawn-off shotgun. He shot and killed two staff members, Peggy Noble andLeigh Cleveland. He wounded another, Lindy Curtis. He fired at Kim Adams butmissed.[2] At his trial in February 2016, Mr Tully represented himself after havingdismissed seven sets of counsel. His most recent counsel appeared to assist the Courtas amicus curiae, with a brief to advance a defence case. Mr Tully was excluded fromthe courtroom for much of the trial after persistently disrupting proceedings in anattempt to have the trial aborted.[3] Mr Tully was found guilty of the murders of Ms Noble and Ms Cleveland, andthe attempted murder of Ms Adams. He was also found guilty on two counts ofunlawful possession of a firearm but acquitted on charges of attempting to murderMs Curtis and of laying a trap for his pursuers as he fled the scene. He was sentencedto life imprisonment with a minimum period of imprisonment of 27 years.[4] Mr Tully now appeals his convictions and sentence. He maintains that he wasnot mentally fit to stand trial, and that he had an available defence of insanity whichthe trial judge, Mander J, refused to leave to the jury. To that end he has adduced newevidence on appeal. He also says that he was denied his right to counsel and his trialwas unfair, partly because he was absent for most of it after being removed fordisrupting proceedings.The facts[5] The narrative facts are not now in dispute, but it is necessary to recite thembecause the Crown maintains both that the shootings were planned and organised,targeting victims against whom Mr Tully harboured a grudge, and that any mentalimpairment did not affect Mr Tully to the extent that he did not understand what hewas doing or that his actions were wrong. Mander J found at sentencing that Mr Tullyhad formed a plan to target WINZ employees and described the murders aspremeditated and cold-blooded executions.1[6] Mr Tully was raised in Ashburton and as an adult lived variously inNew Zealand and Australia, working as a diesel mechanic but never holding a job forlong. He returned to New Zealand permanently in 2012 and to Ashburton in 2014,when he was aged 48. At sentencing Mander J recorded that Mr Tully went intosomething of a downward spiral after returning to New Zealand. He was estrangedfrom his family and believed he was dying of a skin condition, which he still treatswith hydrogen peroxide. Medical reports indicate that he has no such condition, andthat hydrogen peroxide would not be a suitable treatment, but Mr Tully believes hehas such a condition, that it affects his brain, and that hydrogen peroxide alleviates it.He was and remains to this day assiduous in his attempts to have his self-diagnosisconfirmed.[7] After moving to Ashburton Mr Tully lived in variously rented accommodationand camping grounds. Sometimes he lived rough along the Ashburton River. Heengaged with the WINZ office in Ashburton, seeking permanent accommodation in asole-occupant residence and financial assistance. He sought food payments andmoney to treat himself, and money to purchase a mobility scooter (which he wasdenied) and a bicycle. He appears to have been afforded all the assistance availableto him, but he was dissatisfied and adamant that he was being denied his entitlements.He was demanding and intimidating in his dealings with staff and frequently madecomplaints against them when they refused to accede to his demands. Ms Clevelandand Ms Adams had both dealt with his requests.[8] On 7 August 2014 Mr Tully entered the WINZ office, where the receptionist,Ms Noble, spoke to him and reminded him that his appointment was for the next dayand he had previously been asked to leave the office. He was eventually persuaded toleave, having been given $60 for food, $29 for hydrogen peroxide and $495 for aweek's accommodation at a campground. He ripped the papers up when he saw thatthe grant he was being given was recoverable, and staff asked him to leave and1 R v Tully [2016] NZHC 1133 [Sentencing notes] at [9], [26], [28] and [31].threatened to call the police. On the following day, 8 August, he was trespassed andrequired to deal with WINZ via its helpline. He continued to contact WINZ in thatway. On 28 August he made an appointment via the helpline for the following day.A manager, Jamie Carrodus, called to tell him he was still trespassed and would needan agent to act on his behalf. He nonetheless came to the office on the 29th of August,which was a Friday, and was turned away by the security guard.[9] Over the weekend Mr Tully made preparations for the attack. He dumped thecontents of a storage locker that he had been renting, the contract having beenterminated because he was suspected of living in the locker. He hid his two cellphoneson trucks at the storage yard of a trucking company, evidently to provide himself withan alibi founded on the trucks' subsequent movements. He hid one of two bicycles hehad been using along the Ashburton River, planning to switch bikes as he made hisescape.[10] On 1 September Mr Tully arrived at the WINZ office on his other bicycle. Hewas dressed in a green jacket and carried a backpack. Before going to the office hehad bought, among other things, three bottles of hydrogen peroxide from his regularpharmacy. At the WINZ office he locked his bike and walked inside, wearing abalaclava and carrying a sawn-off pump action shotgun. Some of the cartridgescontained solid shot rather than pellets. The time was 9.51 am.[11] Mr Tully shot Ms Noble at the reception desk. The chest wound wasimmediately fatal. He moved into the offices and saw Ms Adams. He fired at her butmissed. She fled through a door which led to an exit.[12] Mr Tully then saw Ms Curtis and a male client of hers huddled under her desk.Ignoring the client, he shot her in the leg.[13] Mr Tully moved about the office, looking for other staff. He noticedMs Cleveland under her desk at the rear of the office. She begged for her life, but heshot her twice. He turned away, then returned — there was evidence that she had madea sound — and shot her once more, fatally.[14] Mr Tully then walked calmly out of the premises, packed the weapon andbalaclava in his backpack, unlocked his bike and left. Little more than a minute hadelapsed since he entered the building. He was accosted by a member of the public ashe left, which caused him to leave his helmet and bike lock behind, but he made hisescape along a river path. The Crown alleged that he stopped at one point and strunga wire across the path at a height of about 170 cm as a trap for his pursuers. Along hisroute he disposed of the shotgun, which has never been recovered, and hid the bike,switching to the bike he had hidden earlier.[15] At 5.30 pm police found Mr Tully hiding in a macrocarpa hedge about12 kilometres from town. He had been spotted by a farmer. In his possession wasanother, disassembled, shotgun and a number of cartridges. His backpack containeda note stating "Discrimination Kim Adams, Leigh Cleveland".[16] In his interview with the police, which was not adduced at trial in the face ofhis objections, Mr Tully commenced by insisting that he needed salt and he needed totreat himself or he would die. He then stated that he wanted his lawyer before hewould talk and pointed out, when being told of his right to remain silent, that theinterview was already being recorded. The interview was paused while counsel,Ms Aickin, was contacted and spoke to Mr Tully. When the interview resumed, withMs Aickin present, Mr Tully agreed that he understood his rights and was willing tocontinue. He then explained that he remembered nothing between picking up hismedication for his skin condition and being arrested. He professed to be unsure aboutthe clothing he wore that day. He explained that he had being trying to get help frommany sources but no one would help and he had been trespassed from various agenciesor public spaces. He recounted his grievances with WINZ in some detail, includingbeing trespassed and being required to repay his accommodation supplement. He saidthe Ashburton office would deny his rights even when they were written down inlegislation. However, he made it clear that he was alert to the officer's evident purposeof establishing whether he had a motive to do WINZ any harm. He claimed that hecould not name any of the staff he had dealt with (except a regional manager). He saidhe had turned up on August 29th because he had made an appointment and that meantWINZ was obliged to see him. When the officer directed the questioning toward theshootings, he maintained he had no memory of the day and stopped the interview.[17] Mr Tully was charged with two counts of murder, two of attempted murder,one of setting a trap with intent to injure, and two of unlawful possession of a firearm.As noted above, he was acquitted at trial of the charge of laying a trap and theattempted murder of Ms Curtis. Mander J attributed the latter verdict to the absenceof any prior dealings between her and Mr Tully and evidence that he may have aimedat her leg.2 Ms Noble and Ms Cleveland were shot in the chest. The jury may havebeen unsure that it was Mr Tully who strung the wire across the track.Mental state inquiriesMr Tully initially found fit to stand trial[18] After his arrest a forensic psychiatrist who had examined Mr Tully in custodyrecommended a psychiatric report pursuant to s 38(2)(c) of the Criminal Procedure(Mentally Impaired Persons) Act 2003 (CPMIP). On 23 September 2014, Mr Tullywas admitted to a secure mental health unit, Te Whare Manaaki, at HillmortonHospital for that purpose. Dr Julie Norris, a consultant forensic psychiatrist, preparedthe report, which was dated 6 October 2014. After being advised of the purpose of thereport and discussing the limits of confidentiality at some length, Mr Tully said thathe wished to take legal advice and requested a list of all the questions Dr Norris wouldask. He then politely declined to participate in a clinical assessment, saying he wouldobtain a private psychiatric report. Dr Norris spoke to his treating psychiatrist at thehospital, who reported that Mr Tully had been observed by staff and there had been nobizarre, disorganised or distressed behaviour. During her engagement with Mr Tully,Dr Norris found him able to listen and respond appropriately. There was no evidenceof disorganised thought processes or abnormality of mood. He showed he couldunderstand, process and comprehend information about participating in theassessment. Subject to the limitations imposed by his refusal to participate, Dr Norrisfound he appeared to display no mental impairment that would affect his ability toplead or participate in the proceedings. She was not able to say whether he had adefence of insanity available.2 At [10].Mr Tully triggered CPMIP fitness inquiry[19] In April 2015, shortly before his trial was to begin, Mr Tully wrote to the Courtraising the question of his mental health both at the time of the incidents and presently.Mander J treated Mr Tully's request as an application to engage the fitness inquiryunder CPMIP.3 He noted that the offences were unusual, indicative in themselves ofmental instability; Mr Tully's demeanour and his police interview might be consideredtroubling; four counsel had been appointed only to be dismissed in short order;Mr Tully's beliefs about his health needs and medical conditions were indicators ofwhich the Court must be cognisant; and Dr Norris's report of 6 October 2014 had beenwritten without access to medical records.4 He observed that a psychiatrist, ProfessorRichard Porter, had been engaged by the defence and, despite successive dismissals ofcounsel, arrangements had been made to ensure the Professor completed the work. Itfollowed that the trial date had to be vacated.[20] The Court requested two reports under s 38(1)(a) of CPMIP. One was fromDr Sue Galvin, a clinical psychologist, but Mr Tully said he was unwell and refusedto see her. She was accordingly unable to offer an opinion. The other was fromDr Norris. On her recommendation Mr Tully was again detained in Te Whare Manaakion 17 June 2015 so the second report could be prepared. It was written by a consultantclinical psychologist, Craig Prince. A report by his treating psychiatrist, Dr MaxwellPanckhurst, was also produced during the s 14 hearing.The expert reports[21] All three experts were able to interview Mr Tully in mid-2015, though he wasunwilling to discuss some subjects, such as drug use. It appears he had decided thathis previous refusal to engage had been unhelpful for him. The experts obtained accessto his extensive health files, including Australian records, and Dr Norris talked toMr Tully's mother. The records contained evidence of his longstanding concern withhis skin condition, for which there was no clinical evidence beyond a diagnosis ofepisodic mild dermatitis and rosacea before 2012. He was unable to explain the nature3 Criminal Procedure (Mentally Impaired Persons) Act 2003 (CPMIP), pt 2, subpt 1. See R v TullyHC Christchurch CRI-2014-009-8232, 1 May 2015.4 The Judge cited McKay v R [2009] NZCA 378, [2010] 1 NZLR 441, in which this Court consideredthe threshold for raising fitness under CPMIP.of his condition and he had declined to participate in a dermatological assessment. Hisprison records included evidence of malingering; he claimed to be unable to walk butmoved normally when he thought he was not being observed. He had said he wouldfeign symptoms to obtain admission to hospital.[22] In the interviews Mr Tully was keen to convey information supporting adiagnosis of mental illness. He claimed to experience psychiatric difficulties whenliving in the community: he would hear voices in his head and see "dead pigeons" andanimals which were "opaque" and was fearful of people following him and being spiedon. He was concerned that a tracking device had been inserted in his tooth and that"autonomous dump trucks" had been imported into New Zealand. However, theexperts expressed doubts about these accounts: Dr Norris could not elicit a detailedaccount of consistent clinical symptoms with associated paranoid or persecutory fears,and Dr Panckhurst found Mr Tully's account inconsistent and lacking in depth.[23] Dr Norris concluded that there was "no current evidence indicative ofhallucinations, bizarre beliefs, paranoia or persecutory beliefs" outside his concernsabout his physical health, and nothing that would be considered consistent with amajor mental, mood or anxiety disorder. It was possible that Mr Tully wasmisinterpreting or exaggerating bodily symptoms, but no psychiatric diagnosis hadbeen made regarding his skin preoccupation. Even if he were diagnosed with asomatic (bodily) psychiatric disorder it would not be sufficient to qualify as a mentaldisorder under s 2 of the Mental Health (Compulsory Assessment and Treatment) Act1992 (meaning a disorder that would qualify for compulsory treatment). He diddisplay personality disturbance with antisocial and narcissistic features and there wasa persistent account in his clinical files of a grandiose sense of entitlement. However,a more specific personality disorder had not been diagnosed. She found that he hadbeen able to raise the question of fitness with the Court in a logical and coherentfashion and he exhibited a reasonably sophisticated understanding of the court process.He had demonstrated the ability to engage in interviews with lawyers and cliniciansand he had the ability to make "clear" decisions about his options and appreciate theconsequences. She concluded that he did not have a mental impairment that wouldaffect his ability to adequately understand the nature or purpose or possibleconsequences of the proceedings, and that he was fit to stand trial.[24] Mr Prince also found Mr Tully fit to stand trial. Mr Tully was logical andcoherent and did not claim to be currently experiencing delusions. Although he hadunusual beliefs about his skin condition, there was no evidence of delusional thinking.Mr Tully was less co-operative with Mr Prince than he had been with Drs Norris andPanckhurst, but equally firm that he was unfit to stand trial. Mr Prince noted thatMr Tully had not attracted a formal psychiatric diagnosis and so was not consideredmentally impaired. His beliefs about his skin condition could attract a diagnosis, butit would be unlikely to affect his fitness to stand trial. His irritable and demandingbehaviour likely reflected personality traits rather than an enduring mental illness.He appeared to understand the nature and purpose of proceedings and was able tocommunicate adequately with counsel for purposes of a defence.The s 9 involvement hearing[25] Four sets of counsel had been appointed and had withdrawn by this time.The Judge appointed one of them, Tony Greig, as amicus curiae with a brief to assistMr Tully.5 He was to explain the process and advise Mr Tully throughout the hearing,both as to the law and as to questions he may wish to ask witnesses. Counsel mightquestion witnesses about matters that counsel thought relevant, but would not do sowithout first consulting Mr Tully, who was anxious to control the questioning. IfMr Tully would not accept assistance, then as amicus Mr Greig might independentlyquestion witnesses and advance such submissions as he thought appropriate inopposition to the Crown case.[26] The trial having been adjourned, the Judge recorded that Mr Tully now had afurther opportunity to instruct counsel.6 A further counsel, Mr Rout, was appointedbut shortly after the s 9 hearing had begun, on 9 June 2015, he too was given leave towithdraw. Mr Tully represented himself with Mr Greig as amicus.[27] The s 9 hearing inquired into whether, on the balance of probabilities, Mr Tullyhad caused the act or omission forming the basis of the charges.7 Mr Tully was5 R v Tully HC Christchurch CRI-2014-009-8232, 8 June 2015 at [11]–[13].6 At [10].7 Since amendment to the CPMIP on 14 November 2018, this 'involvement' determination followsa finding of unfitness per CPMIP, ss 10–12.unco-operative and disruptive. The Judge recorded in a file note that Mr Tully said hehad just come to eat his lunch and that he was going to read his Bible.8 He declinedto speak to Mr Greig, who had written to Mr Tully outlining the purpose of the hearing.As witnesses gave evidence, Mr Tully began to make loud comments. He then toldthe Judge that he was very sick and needed to lie down and was sensitive to noise.The Judge was aware of Mr Tully's complaints about his medical condition and histreatment in prison. He noted that although Mr Tully claimed to need a wheelchair hehad been observed walking in his cell and that before he interrupted the hearing he hadshown no sign of being in pain. The Judge accordingly ruled that the hearing wouldproceed. Mr Tully then spoke loudly, making a continuous noise designed to interruptthe proceeding, and was asked to stop. When he did not, he was removed. The Judgehad him brought back into court later. A Corrections nurse who had accompaniedMr Tully to court found nothing wrong with him. Mr Greig explained that Mr Tullywanted hydrogen peroxide, which Corrections would not provide as there was nomedical justification for it. Mr Tully told the Judge that he wanted this treatment.The Judge responded that it was not for him to intervene in Corrections' managementof the issue, and the treatment would not become a bargaining chip to secureMr Tully's co-operation. That caused Mr Tully to become violent and he wasremoved. The Judge was satisfied that that was Mr Tully's objective. After a briefadjournment for Mr Greig to speak to Mr Tully, the hearing continued, with Mr Greiginstructed to take a partisan role representing Mr Tully's interests as he saw fit. MrTully chose not to return to the courtroom.[28] In a judgment delivered on 16 June 2015, the Judge found on the balance ofprobabilities that Mr Tully had caused the relevant acts.9 That conclusion wasinevitable and it was not in issue before us; accordingly, we have not summarised allthe evidence establishing that Mr Tully was the gunman.8 R v Tully HC Christchurch CRI-2014-009-8232, 15 June 2015 [File note of Mander J].9 R v Tully [2015] NZHC 1365 [Section 9 decision] at [37].The s 14 mental impairment hearing[29] Next followed the mental impairment inquiry under s 14 of CPMIP.10 It washeld on 27 October. In the interim, new counsel, Philip Hall QC and Kerry Cook, hadbeen briefed and then granted leave to withdraw, and at a pre-hearing video conferenceMr Tully had refused to communicate and sat with his back to the camera. Mr Greigwas re-engaged as amicus. At the hearing, however, Mr Tully did participate. He gaveevidence, which was led by Mr Greig. Dr Norris and Mr Prince also gave evidence.[30] The defence did not adduce evidence from Professor Porter (though Mr Tullymentioned a report from him at the hearing). We now have a copy of Professor Porter'sreport following a waiver of privilege for purposes of this appeal. He prepared a draftreport dated 4 June 2015 and a final report on 6 July 2015. Professor Porter found noevidence that Mr Tully was insane at the time of the offences and concluded that hewas fit to plead and to assist in his defence. We return to the report at [82] below.The Judge's decision finding Mr Tully fit to stand trial[31] The Judge recorded that he must decide whether Mr Tully was mentallyimpaired; and if so, whether due to such impairment he was unable to conduct adefence or instruct counsel.11 With respect to mental impairment, the Judge followedthe judgment of this Court in SR v R, in which it was held that mental impairment isnot defined in the CPMIP and the term is not confined to mental disorder12 orintellectual disability13 or insanity; rather, it is referable to a mental state or a conditionthat impairs fitness to stand trial, making the defendant unable to participateadequately.14 Participation includes but is not limited to pleading, understanding thenature, purpose or possible consequence of the proceeding, and communicatingadequately with counsel to conduct a defence.15 The assessment must be made incontext, against the task expected of the defendant.10 This inquiry now occurs first, before a hearing as to the defendant's involvement in the offence,per s 8A.11 R v Tully [2015] NZHC 2715 [Section 14 decision].12 The threshold for compulsory treatment under the Mental Health (Compulsory Assessment andTreatment) Act 1992 depends on being mentally disordered: ss 2 and 27.13 Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003, ss 7 and 45.14 SR v R [2011] NZCA 409, [2011] 3 NZLR 638 at [40].15 Section 14 decision, above n 11, at [12] citing P v Police [2007] 2 NZLR 528 (HC) at [43] andSolicitor-General v Dougherty [2012] NZCA 405, [2012] 3 NZLR 586 at [56]–[57].[32] Mander J recognised that Mr Tully might be mentally impaired by reason of asomatic psychiatric disorder concerning his skin condition, or a personality disorder,or intermittent psychosis.16 He reviewed in detail the reports of Dr Norris andMr Prince, along with that of Dr Panckhurst and reports of other medical professionalsor Corrections or medical staff who had observed Mr Tully during the nine monthperiod of assessment. He noted that the experts had all reached the view that Mr Tullywas not mentally impaired and was fit to stand trial.17[33] With respect to personality disorder, the Judge noted that the experts acceptedthat Mr Tully exhibits a number of traits consistent with narcissistic personalitydisorder: a grandiose sense of self-importance and entitlement, a lack of empathy, andarrogant behaviour. But some characteristics of that disorder were not present to thesame degree, or at all. Dr Norris was not prepared to diagnose the disorder andMr Prince was unable to. When asked whether Mr Tully's repeated dismissals ofcounsel evidenced such disorder, the experts responded that Mr Tully understood theimportance of having counsel and was able to engage with them, and there may be anumber of reasons, unrelated to mental impairment, why he might dismiss counsel.They considered that although he was a difficult client, Mr Tully could work with alawyer if he chose to do so; he was able to absorb and evaluate information andrespond logically to it. The Judge added that his own observations were to the sameeffect:[60] At the commencement of the s 14 hearing, Mr Tully was extremelycritical of Mr Greig, deprecating his involvement to date in the proceeding,and referring to his unsatisfactory dealings with Mr Greig, presumably bothas his instructed counsel and also in fulfilling his role as amicus. Yet, in theafternoon, when Mr Tully was asked whether he wished to call evidence, hetook the opportunity to consult with Mr Greig in private about that election,and was clearly happy to do so. [34] With respect to Mr Tully's skin condition, the Court was provided with a reportof a consultant dermatologist, Dr Martin Keefe, who had examined Mr Tully in July2015. Dr Keefe could find nothing to support Mr Tully's self-diagnosis. He suggestedthat Mr Tully may have Morgellons Disease, as to which medical opinion is divided:16 At [51].17 At [96].some consider it a physical condition, and others psychological.18 Dr Norrisconsidered that Mr Tully's condition is delusional, but that did not alter her opinionregarding mental impairment or fitness to stand trial. Rather, he has a somatic delusionwith regards to his skin which causes some distress. Mr Prince preferred not to offeran opinion on whether Mr Tully had Morgellons Disease, but he accepted that MrTully is "obsessed" with his skin condition. From his own interactions, Mr Tully wasnot so focused on his skin condition that he was unable to discuss any other topic.In evidence, Mr Tully himself maintained that he would probably be unable to getthrough a month-long trial and would need constant treatment and rest and breaks totreat himself.[35] With respect to delusional psychotic behaviour, Mr Tully gave evidence aboutwhat he maintained were psychotic episodes going back to 2002. He referred amongother things to hearing voices, his belief that a tracking unit had been implanted in atooth, and "autonomous dump trucks" that were a threat to New Zealand. The Judgenoted an inherent contradiction in Mr Tully relating these events as evidence ofpsychosis while maintaining that he still believed they happened or were true.19Mr Tully also gave evidence of occasions on which he had suffered head injuries,which he maintained the experts had not sufficiently taken into account. The Judgerejected that contention. He noted that Dr Panckhurst had expressed apparentscepticism about Mr Tully's claims to have experienced historic psychotic episodes,and had remarked on Mr Tully's keenness to provide background information todemonstrate the existence of mental illness.20[36] The Judge concluded that there was no evidence of a psychotic disorder ordelusions,21 nor was any expert prepared to diagnose Mr Tully as having a personalitydisorder although some traits were present.22 He accepted that Mr Tully had apreoccupation with his skin condition, which he maintained extended to his joints,affected his mobility and caused him pain. However, none of those difficulties wassufficiently severe to prevent Mr Tully from adequately communicating and18 At [67].19 At [76].20 At [92].21 At [96].22 At [100].instructing counsel; that being so, Mr Tully was not mentally impaired.23Notwithstanding his afflictions, Mr Tully had demonstrated his ability to engage in thecourt process during the s 14 hearing, asking appropriate questions and examining thehealth assessors and giving evidence himself.24 He engaged with Mr Greig to facilitaterepresentation in a competent way. The Judge concluded that:[109] I am satisfied that Mr Tully has the ability to plead, to adequatelyunderstand the nature, or purpose, or possible consequences of theproceedings, and to communicate adequately with counsel (should he chooseto do so) for the purposes of conducting a defence. He has himselfdemonstrated an ability to represent himself. I have also had regard to theadditional factors which supplement the statutory definition of fitness to standtrial.[110] I have no reason to doubt that Mr Tully understands the charges andthe evidence that is to be adduced at trial. I do not consider him to be unableto actively and appropriately participate in his trial because of any mentalimpairment. He has demonstrated an ability to communicate adequately withthe Court and with amicus, and I consider, should he so wish to do so, anyinstructed counsel he wishes to engage and retain. In my view, as he hasdemonstrated, he has an ability to relate his version of events, and I do notconsider him to be suffering from any mental impairment which prevents himfrom mounting any defence on his behalf.[37] Mr Tully was accordingly found fit to stand trial.Adjournment of trial scheduled for November 2015[38] Mr Tully's trial was scheduled to begin on 23 November 2015. He was to beself-represented and had been given the appropriate information. He sought anadjournment. A hearing was held at which Mander J heard from Mr Tully, Mr Greigand the Crown. Mr Tully advanced two grounds: his health and his desire to berepresented at trial. The adjournment was granted.25Mr Tully's health[39] The Judge recorded that Mr Tully had consistently complained of skinproblems and arthritis, problems with his left ear, lesions in his skull and brain,weakness in his legs, and blindness, all of which he attributed to an infection that must23 At [103].24 At [108].25 R v Tully [2015] NZHC 2914 [Adjournment decision].be treated with hydrogen peroxide. He also complained of pain. He had gone onhunger strike, saying that he needed an MRI scan for lesions and pain. He wished toconsult with an independent doctor and sought to resume use of hydrogen peroxide toallow self-medication of the undiagnosed skin disease.[40] The health centre manager at Christchurch Men's Prison had sworn an affidavitexplaining that an MRI scan had been done, revealing no significant intracranialabnormalities, and attached a report from a doctor, one of a team of generalpractitioners who had treated Mr Tully at the prison. Mr Tully had refused to allow aphysical examination and all previous examinations had been essentially normal, notsupporting a diagnosis of a systemic physical illness. His reports of pain were highlyvariable in presentation and seemed most obvious when he was stressed or in conflict.He had been asked to indicate his preference for an independent medical professionalbut had not responded. Hydrogen peroxide might be prescribed in the circumstances,given that it was Mr Tully's treatment of choice and would be relatively safe, andCorrections had accordingly made it available to him a week previously. Mr Tullycould continue to take standard pain relief medications, and patients who reportdelusional pain beliefs sometimes respond to antipsychotic medications.[41] Dr Norris was asked to prepare a further report about arrangements to facilitateMr Tully's participation in the trial as a self-represented defendant. She confirmedthat Mr Tully had been offered antipsychotic medication but had refused it. She notedthat Mr Tully had previously told her that he would consider fabricating symptoms tosecure his return to hospital, and inconsistent physical illness symptoms had beennoted by the prison and documented previously. He had also used hunger strikingpreviously to attempt to achieve his objectives, and he was not seen to be in anyobvious acute physical distress during the lengthy court hearing on 27 October.[42] The Judge concluded that:[74] The considered medical opinion favours a diagnosis that Mr Tully hasa somatic condition. That he denies such a diagnosis is consistent with thedisorder itself. There does not appear to be anything medically wrong withhim. Mr Tully refuses antipsychotic medication which would likelysuccessfully provide him with relief. His presentation in terms of beingaffected by physical pain is inconsistent and, notwithstanding the effect of hissomatic skin condition, there are indications of malingering. Mr Tully himselfhas previously stated that he would deliberately fabricate symptoms in orderto achieve his own demands and, as noted from various sources, his observedvariable presentation is not considered consistent with genuine symptoms ofpain.[43] He recorded that Mr Tully's condition would not preclude the trial proceeding,on a self-represented basis, having regard to the steps taken by Corrections to respondto his concerns and meet his medical needs.26Legal representation[44] The Judge remarked that earlier, in November 2014, he had appointedMr Greig as amicus because of a pattern of engagement and disengagement withcounsel, leading to counsel seeking to withdraw. Mr Tully had dispensed with theservices of six sets of counsel, and the Judge had seen no indication that this patternof behaviour would change should the trial be adjourned; Mr Tully refused to retainthe services of counsel and allow himself to be legally represented for any sustainedlength of time.[45] It was now November 2015 and the Judge had little confidence that anythinghad changed. But Mr Tully assured him that Mr Rapley, who was willing to acceptengagement but unable to appear on 23 November, was his lawyer of choice and wouldrepresent him at trial. He promised that he would co-operate with Mr Rapley as trialcounsel. The Judge discussed the Supreme Court decision in R v Condon.27 Herecorded a submission of Mr Greig, as amicus, that the Court could not yet be surethat Mr Tully was manipulating the process to prevent the trial from going ahead. TheJudge considered that Mr Tully's behaviour was well capable of leading to a legitimateconclusion that he had forfeited his right to counsel.28 But the trial had been adjournedonly once, to determine fitness to stand trial, and it had not previously been adjournedfor legal representation reasons. Adjournment was burdensome for victims, but thenext available trial date was 22 February 2016, just three months away. For thesereasons, the Judge granted the adjournment application.29 He warned that the trialwould proceed then, come what may:26 At [75].27 R v Condon [2006] NZSC 62, [2007] 1 NZLR 300.28 Adjournment decision, above n 25, at [67].29 At [69]–[70].[71] Towards the conclusion of the hearing of Mr Tully's application foran adjournment, I told Mr Tully that whether he retained legal counsel or not,the trial would be proceeding at the next trial date with or without him beinglegally represented. I formally cautioned Mr Tully that his lack of cooperationwith counsel will not be a factor which will affect his trial proceeding at thenext trial date. It is intended that the trial proceed on that date whether he islegally represented or not, he having been provided with the opportunity toinstruct counsel of his choice, Mr Rapley, to represent him. Mr Tully istherefore now on formal notice of the consequences of him disengagingcounsel in terms of his legal representation at trial.Decision to proceed to trial without own counsel[46] The Judge's concerns about Mr Tully's willingness to be represented at trialwere swiftly borne out. In January 2016 Messrs Rapley and Shamy sought leave towithdraw, citing Mr Tully's refusal to co-operate. Mr Tully confirmed that he wishedto dispense with both counsel, but after hearing from him the Judge declined, havingbeen unable to identify any issues which would warrant termination or prevent counselfrom continuing to act.30 Mander J recorded that he had little doubt but that this wasa deliberate tactic. He directed that counsel should continue in their preparations fortrial on the balance of Mr Tully's willingness to cooperate, and if their position becameuntenable a decision would be made as to the appointment of amicus. However,Mr Tully refused to speak with counsel, and as a result they made a further applicationon 29 January for leave to withdraw. Mr Tully maintained that they would not followinstructions and he would not say whether he wished Mr Rapley and Mr Shamy tocontinue to act. The Judge did not grant the application at that time.31 He notedMr Rapley's view that any new counsel would find themselves in the same position.He recorded that Mr Rapley and Mr Shamy were willing to appear as amicus, usingtheir best judgement to test the Crown case, but would not feel comfortablecross-examining witnesses without instructions from Mr Tully.[47] On 11 February counsel filed a further request for leave to withdraw. They hadprepared advice for Mr Tully and had gone to the prison to meet him, but he refusedto cooperate and became aggressive and confrontational. They were adamant that therelationship with Mr Tully was fractured and there was no possibility they couldremain as his defence lawyers. At a conference on 15 February Mr Tully voiced30 R v Tully HC Christchurch CRI-2014-009-8232, 25 January 2016.31 R v Tully HC Christchurch CRI-2014-009-8232, 17 February 2016 at [5].complaints about counsel, complaining that they had refused to process an applicationfor leave to appeal the Judge's finding that Mr Tully was fit to stand trial. In fact theyhad not refused to do so, though they had advised him that they did not think therewere grounds for an appeal. He also complained that they had conspired with theprosecution to have "tainted" evidence removed. The Judge discussed matters withMr Tully, trying to impress upon him the need to be legally represented and tocooperate with counsel, but he claimed he intended to take proceedings against them.The Judge concluded that he had no option but to allow counsel to withdraw.32 Heimmediately appointed them as amicus, on the same basis that Mr Greig hadpreviously been appointed. Mander J recorded that:[28] I have no doubt that should the trial be again adjourned to enableMr Tully the opportunity to instruct what would be his ninth lawyer, the Courtwould find itself in exactly the same situation again with Mr Tully refusing toengage with counsel for the purpose of trial preparation and makingunreasonable demands in relation to collateral matters which counsel wouldnot be able to advance. I take the view that Mr Tully is deliberatelymanipulating the criminal justice process in order to avoid being placed ontrial. As I observed in my judgment of 20 November when I vacated theprevious trial Mr Tully's actions to date are well capable of leading to alegitimate conclusion that he has by his actions forfeited his right to counsel,and I am firmly of the view that this is the case.[48] Mr Tully was subsequently again given the usual information for aself-represented defendant. In that advice the Judge recorded that Messrs Rapley andShamy had been appointed to assist the Court and instructed to assist Mr Tully shouldhe choose to make use of their services. Mr Tully might ask counsel to provide himwith advice at any time or ask them to make submissions or to question witnesses.Decisions as to the conduct of the defence were Mr Tully's to make, and he would begiven the opportunity to talk with counsel about them. Any discussions betweenMr Tully and counsel would be confidential and privileged and no one else inthe Court, including the Judge, would know the content of the discussion. The Judgeadded that amicus had been given a mandate to act in a partisan way to challenge andtest the Crown's case, which would require them to exercise their professionaljudgement as they would have if engaged as defence counsel. He was free to discussthem the approach to be taken, but they were not bound to follow his wishes.32 At [25].[49] The Judge confirmed the nature of counsel's instructions in a minute in whichhe cited Solicitor-General v Miss Alice and Moodie v Lithgow for the existence of adiscretionary jurisdiction to appoint counsel to assist a court by presenting argumentwhich a defendant cannot or will not present for themselves, where necessary to ensurea trial is fair.33 He recorded that:34(a) Counsel is to be available to explain and assist Mr Tully regarding theprocedure of the trial. Mr Tully is encouraged to contact and conferwith either Mr Rapley or Mr Shamy or both regarding what tasks, ifany, he may wish them to perform on his behalf.(b) Counsel are to assist Mr Tully with any questions he may have aboutthe evidence, including whether Mr Tully should be asking questionsof particular witnesses. They should attempt to discuss tactical orstrategic calls with Mr Tully in relation to his trial, and help himprepare cross-examination. It should be noted that if the question isimpermissible, or if I consider the way in which the cross-examinationis being conducted by Mr Tully is inappropriate, I will intervene.(c) Mr Tully may prefer counsel to ask questions on his behalf. He mayadvise counsel of the questions or topics of cross-examination hewishes to cover.(d) Mr Tully's right to directly cross-examine witnesses is subject to anyapplication the Crown may wish to make under the Evidence Actregarding the appropriateness of Mr Tully personally questioningparticular witnesses, other than through counsel assisting. They areto be available to explain to Mr Tully the witnesses in respect of whichsuch potential applications may be made.(e) Counsel are to assist Mr Tully on any evidential, procedural or legalissues. They are to assist Mr Tully in any applications it may beconsidered appropriate for the defence to make.(f) Counsel are to assist the Court in liaising with Mr Tully regardingprocedural matters and the smooth running of the hearing. Counselare to endeavour to ensure Mr Tully understands the trial processesand the reason for certain procedures.(g) If Mr Tully needs to discuss matters with counsel that cannot be donein the courtroom, the Court will adjourn to allow such discussions totake place. Where Mr Tully is seeking advice and assistance suchdiscussions will be confidential.(h) Counsel are to make themselves available to Mr Tully to assist withthe empanelling of a jury. It may be that Mr Tully prefers to alloweither Mr Rapley or Mr Shamy, who have experience with that type33 R v Tully HC Christchurch CRI-2014-009-8232, 16 February 2016 at [14]–[15], citing Moodie vLithgow HC Wellington CIV-2006-405-1732, 1 September 2006; and Solicitor-General v MissAlice [2007] 1 NZLR 655 (CA).34 At [22].of trial procedure, to take responsibility for the empanelment of thejury.Mr Tully's presence at trial[50] The trial began on Tuesday 23 February 2016. At a pre-trial conference heldthe preceding Friday, the Judge found it necessary to remove Mr Tully from thecourtroom. He had been abusive and persistently interrupted others. On Monday22 February a hearing was held to deal with admissibility of identification evidence.Mr Tully was again disruptive, claiming that he was unwell and unfit to stand trial.He spoke over the Judge and demanded that he be permitted to lie down, and herepeated his demands while counsel was speaking. When asked whether he wouldpermit the hearing to continue, he said that he would not. Mander J then advised himthat a room had been set up with closed-circuit television which would allow him toview the proceeding from outside the courtroom. Mr Tully complained that he had ahearing problem and the noise would hurt his ears. The Judge adjourned so counselcould speak with Mr Tully, but he would not engage with them. He also threatened tosmash the equipment in the CCTV room. The Judge accordingly had him removed toa holding cell and proceeded with the admissibility argument. Mander J concludedthat:35[19] It is very clear from Mr Tully's conduct that he has embarked on astrategy whereby he effectively is boycotting his own trial. He refuses toparticipate. Mr Tully has deliberately taken steps to thwart any attempt tofacilitate his participation. He clearly does not wish to hear the evidencerelating to the allegations of his actions on 1 September 2014 and it has notbecome apparent what defence to the charges, if any, he has available to him.[51] In a minute issued after the 22 February hearing the Judge gave his reasons forcontinuing with the trial.36 He found that Mr Tully well knew the trial would proceedin his absence and there was no likelihood that his attitude or conduct would changeif the trial was adjourned.37 Mr Tully was unrepresented, but that was by choice.Counsel had been appointed to assist the Court and would be able to protect Mr Tully'sinterests. Mr Tully would be at a disadvantage,38 which potentially extended to being35 R v Tully HC Christchurch CRI-2014-009-8232, 25 February 2016 [Adjournment minute of 25February 2016].36 Adjournment minute of 25 February 2016, above n 35.37 At [28] and [30].38 At [40]–[45].unable to give his account of events, but it was not apparent what explanation orpossible defence he could advance on the proposed evidence. The interests of thepublic and the victims favoured continuing with the trial, which had been adjournedtwice previously. Any adverse inference which the jury might draw from Mr Tully'sabsence could be overcome by firm directions. The Judge accordingly ruled that thetrial would proceed.[52] In a separate minute dated 23 February the Judge recorded that he had reviewedvarious complaints made by Mr Tully about his health and medical care and satisfiedhimself that Corrections had responded appropriately to Mr Tully's concerns.39 Bythat time Mr Tully was on hunger strike, as he had been prior to the November 2015trial date. The Judge made arrangements to receive regular updates about hiscondition. Throughout the trial a doctor was in attendance and the Judge receivedreports from Corrections, the consistent theme of which was that Mr Tully was notunwell and not unable to participate. In this minute the Judge also dealt withcomplaints about disclosure from Mr Tully, satisfying himself that disclosure andmaterial provided by counsel had in fact been made available to Mr Tully.[53] Mr Tully was nonetheless given the opportunity to appear and to consultcounsel when the trial commenced. Because of his pre-trial behaviour he worerestraints. The Judge recorded that he was satisfied, under section 37(3) of theCriminal Procedure Act 2011, that Mr Tully had been informed of his rights to legalrepresentation, understood those rights, and had had a reasonable opportunity toexercise them.[54] Anticipating difficulty, the Judge had split the jury panel. Half of the panelwas in court when the charges were put. Mr Tully disrupted proceedings, saying thathe was unwell and needed to lie down and would not represent himself. He repeatedlyrefused to be quiet and talked over Mander J, preventing the Judge from deliveringintroductory remarks to the jury panel. Mr Tully spoke loudly over him, repeatedlysaying "thank you Your Honour". He was then removed. The prospective jurorsseated in the courtroom were released, and the remainder of the panel were brought in39 R v Tully HC Christchurch CRI-2014-009-8232, 23 February 2016 [Minute (No. 2) of Mander J].and a jury empanelled in the absence of Mr Tully. Counsel could not challenge jurorsfor Mr Tully, but the Judge allowed them to raise with him any concerns they hadabout any particular juror, indicating that he would stand the juror aside if satisfiedthat was appropriate. It appears that one or two may have been stood down at thesuggestion of amicus. The charges were read and Mr Rapley told the jury thatMr Tully was deemed under s 41 of the Criminal Procedure Act to have entered notguilty pleas. Throughout this process Mr Tully insisted, from his cell, that he did notwant to participate.[55] The Judge delivered opening remarks to the jury in which he noted the absenceof the defendant, explained that the law provided for such cases, and advised the jurythat he had decided that it was appropriate that the trial proceed. He directed the jurythat they should not speculate about Mr Tully's absence and no adverse inferencecould be drawn from it. He explained the role of counsel assisting the court.[56] At the beginning of the second day of the trial, the Judge gave Mr Tully anopportunity to be present, to determine whether he was willing to participate. In thepresence of the jury, but before either the Judge or counsel had spoken, Mr Tullyimmediately demanded in a loud voice to know what he was doing there. He wouldnot remain silent but persisted in talking over the Judge. He was removed. The Judgedirected the jury to disregard the exchange they had just witnessed and reminded themof the directions he had given not to speculate on Mr Tully's absence.[57] Throughout the trial, the Judge and/or counsel assisting enquired of Mr Tullywhether he was willing to participate and advised that he would be permitted to do soif he did not interrupt the proceedings. Mr Tully's response, generally, was to refuseor to reiterate complaints about his medical treatment and health. As noted above, theJudge also received regular reports from Corrections or medical staff about Mr Tully'scondition and his behaviour in the cells. He monitored Mr Tully's demands formedication and took advice from medical staff, with whom Mr Tully frequentlyrefused to cooperate. During one in-chambers exchange with Mr Tully early in thetrial, the Judge recorded his own view that Mr Tully was capable of participating:4040 R v Tully HC Christchurch CRI-2014-009-8232, 1 March 2016.[4] Mr Tully addressed me at some length. It was apparent from hispresentation and his representations to me, which went on for someconsiderable time, that he clearly had the ability to engage with the Court, tomake submissions and present argument. It was apparent to me from hispresentation and interaction in answer to my questions that there was noapparent reason why he could not be present in Court, nor was it apparent tome that he was unfit to be in Court.[58] On Monday 29 February the Judge again invited Mr Tully to be present in thecourtroom, provided he did not interrupt. As soon as the Judge addressed the juryMr Tully intervened and spoke over him, preventing the first witness from taking hisplace and being heard. He was removed. The Judge again directed the jury todisregard Mr Tully's behaviour and not to speculate about the reasons why the Judgehad elected to continue[59] As the trial progressed Mr Tully's behaviour improved somewhat. He stoppedhis hunger strike and engaged with medical staff. He also engaged with counsel, whilemaintaining that he was not willing to have them act for him and wanted to engageother counsel. He opposed admission of his video interview with the police andthe Crown elected not to adduce it. The Judge sought to give Mr Tully ampleopportunity to discuss with counsel whether he would give or call evidence.Mr Tully's election not to give evidence[60] After assuring the Judge that there would not be any repetition of "the type ofoutbursts" previously seen, Mr Tully returned to the courtroom on 3 March, the eighthday of the trial, and participated as the Crown led its final witnesses. The Judgeexplained to Mr Tully that he would be put to his election to give or call evidence andreminded him of the advice previously given about that. Mr Tully initially elected notto give or call evidence.[61] On the following day, a Friday, the Crown closed its case. Mr Tully againrefused to co-operate with the court and made it clear, by silence, that he did not wishto engage in the trial. The Judge was given to understand that Mr Tully would notgive or call evidence.[62] Over the weekend, however, Mr Tully had something of a change of heart.On 7 March when the Court reconvened the Judge was advised that Mr Tully wascontemplating giving the closing address and also giving evidence, which would beled by Mr Rapley. Mr Tully was told that there was no impediment to him givingevidence, notwithstanding his previous election. Mr Tully explained to the Judge thatwould need a bit of time with amicus to work through some topics. The Judge gavehim an opportunity to consult counsel for some hours.[63] After lunch the Judge held an extended chambers discussion about Mr Tullygiving evidence. In this section of the judgment we explain what the trial Court recordhad to say about the hearing. At [105] below we summarise the evidence Mr Rapleygave about it at the hearing before us.[64] Mr Rapley told the Judge that he had gone through key topics with Mr Tullyand debated bullet points written by Mr Tully, who felt able to give evidence. Mr Tullydid not wish to re-engage amicus as his lawyers, saying that he remained concernedabout their independence, but it was evident that he had accepted their assistance.[65] The Judge was concerned that Mr Tully should not be under any illusions aboutwhat he would be permitted to say in evidence. He checked with Mr Rapley whethercounsel had discussed the subject with Mr Tully; in particular, his evidence could notinclude topics such as disclosure or legal representation or similar issues that hadpreviously been raised in the absence of the jury. Mr Rapley confirmed that Mr Tullyhad taken that on board.[66] The Judge then enquired of Mr Rapley whether counsel had traversed withMr Tully the relevance of any matters he may raise about his health at the time of theincident, stating that "in the absence of independently verified evidence, any evidencerelating to blackouts or amnesia will not be sufficient to raise defences such as insanityor automatism".41 Mr Rapley advised that he and Mr Shamy had discussed that topicwith Mr Tully. The Judge explained that Mr Tully should appreciate that while hecould talk about his health, he needed to understand that such evidence alone wouldnot be sufficient to trigger any directions to the jury relating to an insanity defence or41 R v Tully HC Christchurch CRI-2014-009-8232, 14 March 2016 [Election minute] at [20].automatism, and he needed to understand that before he decided to give evidence.The Judge recorded that he was concerned that Mr Tully not expose himself tocross-examination and raise issues about his health or medical condition which wouldnot assist him in terms of any issue the jury had to decide.42 Mr Rapley noted thatsuch evidence would go to the question of intent.[67] After a further adjournment, Mr Rapley reported that Mr Tully did not wish togive evidence. The Judge stressed to Mr Tully that he did not wish to dissuade himfrom giving evidence. The Judge's observations had been intended to ensure he wasproperly informed and understood the limitations of his evidence. Mr Tully confirmedthat he did not wish to give evidence. He was given the opportunity to reflect on thatdecision overnight.[68] In a minute recording these exchanges, the Judge explained that theinformation he had provided to Mr Tully about the possible relevance of insanity orautomatism was based on the following analysis:43[40] Whenever evidence before the Court raises the issue of insanity andautomatism, the defence may be left to the jury, even though a defendant maydisclaim it. This approach as outlined by the Court of Appeal in R v Cottle isreflected in s 20(4) of the Criminal Procedure (Mentally Impaired Persons)Act 2003. That section provides that where it appears from the evidence thedefendant may have been insane at the time of the commission of the offence,the Judge may ask the jury to find whether the defendant was insane withinthe meaning of s 23 of the Crimes Act 1961, even though the defendant hasnot given any evidence as to his or her insanity or put the question of his orher insanity in issue. Mr Tully never sought to raise insanity.[41] The approach in R v Cottle is consistent with the general rule thatrequires an adequate direction by the Judge to the jury on all matters, whetherof fact or law, which upon the evidence are reasonably open to the jury toconsider in reaching their verdict. I did not consider either automatism orinsanity were reasonably open to the jury on the state of the evidence, norcould I envisage how on Mr Tully's evidence alone such defences couldreasonably be available.[69] Having regard to the evidence, and material canvassed in relation to the issueof Mr Tully's fitness, and his videoed statement, and other material gleaned bythe Judge over the course of the proceeding, the Judge held that there was no basis on42 At [22].43 Election minute, above n 41 (footnotes omitted).which it could reasonably be open to the jury to consider the defences of insanity orautomatism.44 Moreover, no medical evidence was being proffered to support suchdefences.[70] The Judge added that he had formed that view without reliance on the actualevidence which "simply did not admit" of any such defence.45 He referred to thenarrative facts, stating that they could not be reconciled with the actions of anautomaton or a person rendered incapable of understanding the nature and quality ofhis acts or knowing they were morally wrong, at least in the absence of expert medicalopinion. It was for that reason that he had explained the position to Mr Tully beforethe decision was made to give evidence.The summing up[71] Closing addresses were delivered on the following day. The defence addresswas delivered by Mr Rapley. Counsel had achieved some success in having evidenceof identity excluded during the trial. The address focused on identity and intent, notingthat the gunman had not actually shot Ms Adams and had shot Ms Curtis, with whomMr Tully had had no prior difficulties, in the leg. It was submitted that the Crown hadnot proved that Mr Tully strung the wire across the track. The verdicts indicate thatcounsel made some headway with these submissions.[72] The Judge's summing up on the law and the cases for each side is not in issueon appeal. He reminded the jury not to read anything into the security measures thathad been taken in the trial, which included Mr Tully being restrained in his chair whenin court, and that they must not form any inference against Mr Tully because of hisabsence from the courtroom for large parts of the trial. He reminded them thatMr Tully did not have a lawyer acting for him, and directed them that the reasons whythat had come to pass again need not concern them. He reminded them that he hadtwice attempted to continue with trial in Mr Tully's presence, and on both occasionshad had Mr Tully removed because of his interruptions. He repeated his direction thatthe jury must not take any of that into account when assessing the evidence and44 At [50].45 At [51].deciding whether the Crown had proved its case beyond reasonable doubt.He reminded them of the role of counsel assisting, stating that counsel had beenavailable to Mr Tully should he choose to obtain advice and to assist in the conduct ofhis defence, and to assist the Court in the absence of Mr Tully in an attempt to mitigatethe lack of representation, but counsel were not representing Mr Tully; they wereassisting the Court and their role was to ensure that he received a fair trial.The conviction appealThe appeal process[73] The pattern of Mr Tully instructing counsel only to dispense with their servicescontinued on his appeal, which was filed as long ago as June 2016. He was variouslyrepresented by Shane Tait, Craig Tuck (who arranged a further psychiatric assessmentby Dr Peter Dean), Barbara Hunt, and Nicolette Levy QC. From about 4 May 2020Mr Tully was self-represented. In February 2019 Chris Stevenson was appointed ascounsel to assist the Court. His brief was to advance any argument available toMr Tully, with whom he liaised before the hearing.[74] Because he had alleged error on the part of counsel who assisted him at trial,Mr Tully filed a waiver of privilege.46 In due course the Crown filed an extensiveaffidavit from Mr Rapley, who had carefully documented his and Mr Shamy'sinteractions with Mr Tully. Mr Tully filed two affidavits of his own and one ofDr Dean. The Crown did not oppose the admission of Dr Dean's evidence, and it didnot file evidence in response or require that he appear for cross-examination.Mr Rapley did appear and was cross-examined by Mr Stevenson and Mr Tully.[75] Before the hearing of the appeal Mr Tully sought permission to havechromosomal testing undertaken for a condition called 47,XYY Syndrome. It appearsthat DNA testing done for purposes of the trial suggested that he might have thiscondition. It is a condition affecting males with an extra Y chromosome. It isassociated with delayed development of speech, language and motor skills and it issaid that it can lead to developmental conditions including learning disabilities,46 As directed in R v Tully CA288/2016, 12 February 2019 [Minute of Kós P].Attention Deficit Hyperactivity Disorder or Autism Spectrum Disorder. The testingwas authorised, but it was not completed before the appeal was heard and we gaveMr Tully the opportunity to have it completed, and to make any submissions limitedto its implications, afterward. We deal with the results of the testing at [199] below.[76] At a late juncture Mr Tully sought to have the appeal adjourned, saying he wasunwell and had been denied access to papers and to Mr Stevenson. The Court obtaineda report from Corrections which sufficiently established that these claims were untrue.In any event, the Court had full submissions from Mr Stevenson and also writtensubmissions from Mr Tully and the Crown. The adjournment was refused by Miller Jat a pre-hearing conference and the application was not renewed at the hearing.[77] At the hearing Mr Tully behaved appropriately and asked appropriate questionsof Mr Rapley. He adopted the arguments made by Mr Stevenson and made brief oralsubmissions of his own.The grounds of appeal[78] Mr Tully's grounds of appeal appear in documents filed by counsel and byMr Tully himself. There is a long list. We have organised and summarised the groundsas:(a) Mr Tully was not fit to stand trial; he has intermittent mental healthissues connected to his "longstanding organic infection", and whichwere not adequately addressed with the result that he lacked the mentalcapacity to conduct a competent defence. The medical assessmentswere deeply flawed because they were based on misinterpretation ofevidence and insufficient reliable facts; this partly because he did notengage in the process due to his paranoia, psychosis and detachment.(b) Because of his mental health he was not able to form criminal intent.(c) A defence of insanity ought to have been left to the jury but he wasdenied the ability to advance it. Professor Porter's report ought to havebeen produced; Ms Levy presented this as being unable to choose thedefence based on delusional skin disorder because the disorderprevented him recognising it as an available defence.(d) He was not able to participate at trial; he had serious physical healthissues and was denied treatment and was held in harsh conditions whichprecluded him from engaging properly in the court process.(e) He was incorrectly deprived of counsel despite "repeated requests for acompetent lawyer" and could not defend himself.(f) He was also "given incorrect advice by [his] lawyers leading into [his]trial". It is evident that the lawyers referred to were Messrs Rapley andShamy. He says they did not advise him on matters such as givingevidence to explain his state of mind and "refused to change fromamicus to defence". He also says that their role was never adequatelyexplained and he did not instruct them to make any defence points.(g) He had inadequate facilities to prepare his defence and still does nothave full disclosure.(h) There was no defence closing address.(i) There was a systematic failure by Corrections pre-trial, and since, tohave him referred for specialist testing and this failure had put his lifeat risk.[79] There is no substance whatsoever to some of these grounds. The recorddemonstrates that Mr Tully has long been preoccupied with disclosure, seeming totake comfort in complaining about it, but there is nothing to suggest that anything wasor is lacking. Mander J delivered a number of rulings to that effect.47 Amicusconsidered Mr Tully's complaints but did not support them at trial. Nor do we acceptthat Mr Tully was denied access to counsel or documents or facilities to prepare. On47 R v Tully HC Christchurch CRI-2014-009-8232, 1 May 2015 at [18]–[23] and [27], 16 June 2015at [8]; Minute (No. 2) of Mander J, above n 39, at [7]; and 25 February 2016 [Minute on healthand disclosure] at [6]. See also Police v Tully [2015] NZDC 7008 at [19(e)].the contrary, the Court went to extraordinary lengths to accommodate him and toverify that Corrections had done so. He was given reading glasses, a laptop (which herefused to use) and paper copies of disclosure. A skilled closing address was deliveredby Mr Rapley in consultation with Mr Tully; it did not include mental health issues,but that was because the Judge had indicated that on the evidence he would not allowinsanity or automatism to go to the jury. Mr Tully did not and does not have physicalhealth issues that affected his participation at trial or on appeal — there is nothing tosupport that claim and there is abundant evidence to the contrary. (His mental healthissues are another matter.) He was never denied the ability to participate and he wasnot held in conditions that precluded effective participation. (Whether his absencewas prejudicial is another issue; we return to that below.) We say nothing more aboutthese grounds.[80] In our view the principal grounds are those ably developed by Mr Stevenson:whether Mr Tully was fit to stand trial in the first place; and if so, whether a defenceof insanity or insane automatism was available and ought to have been left to the jury.It is also necessary to consider whether Mr Tully had a fair trial having regard to hisself-representation and absence from the courtroom. The latter questions require thatwe consider the role played by counsel assisting the court at trial.New evidence about Mr Tully's mental health[81] Dr Dean is a consultant psychiatrist who has written two reports and sworn anaffidavit. Attached was the 2015 report of Professor Porter, which we summarisebefore turning to Dr Dean's own reports.Professor Porter's report[82] Professor Porter reviewed previous psychiatric reports and other medicalrecords and interviewed Mr Tully. As with other experts, Mr Tully reported amnesiawith regard to the killings. He found that Mr Tully had a delusion with respect to hisskin disorder; he was convinced despite evidence to the contrary that he suffers froma severe and ultimately fatal skin condition. This the Professor classified as adelusional disorder — somatic type. The Professor also assessed Mr Tully fornarcissistic personality disorder. He found that Mr Tully exhibited a grandiose senseof self-importance, a sense of entitlement, a lack of empathy, and arrogance. Therewas clear evidence for only four of the criteria for this disorder, so Professor Portercould not make a definitive diagnosis. But those traits were particularly strong, so hebelieved that further collateral history would likely support the diagnosis.[83] With respect to insanity, the Professor believed Mr Tully's beliefs may haveadded to his stress and irritability but there was no evidence that he was in a state inwhich he was unable to discern that his actions were wrong or to anticipate theireffects. There was no evidence that he could be classified as insane, and his reportedamnesia did not imply that he was suffering from brain dysfunction at the time.[84] With respect to fitness to plead, the Professor found that Mr Tully understoodthe nature of the charges and their severity, and he understood the nature of a trial andits objectives and the pleas available to him. He had a naive understanding of aninsanity defence, but in Professor Porter's opinion he was able to understand what hewas being told. He understood the defendant's role and appeared to retain the abilityto make rational defence decisions. He was able to pay attention sufficiently and toevaluate evidence. His inability or unwillingness to give a clear account of the actualoffending was not in itself unusual. Mr Tully found it intolerable that lawyers maynot always do exactly as he wishes and may disagree with him, but in the Professor'sopinion he retained the ability to work with a lawyer and had a degree of choiceregarding whether he did or not. He concluded that Mr Tully was fit both to plead andto assist in his own defence.Dr Dean's reports[85] Dr Dean's first report, dated 11 June 2018, was based on one interview withMr Tully and an examination of the evidence and trial, police disclosure and the earlierpsychiatric reports. It appears that he did not see Professor Porter's report at that time.Dr Dean recognised the difficulties of making a diagnosis more than three years afterthe event and noted that Mr Tully had not co-operated with assessments made after hisarrest.[86] During interview, Mr Tully described his long-standing belief that he hadcontracted an infection that moved from the surface of his skin through his inner earand into his brain. He attributed a range of symptoms to this infection, includingsevere pain and screaming noise in his ear. It could lead to him passing out for periodsof 12 to 13 hours. He claimed that he had experienced significant cognitivedifficulties, confusion, pain and blackouts during his imprisonment and trial, and thatthis prevented him from actively participating in his own defence. He described thegradual onset of hearing voices over a period of years before his return to New Zealandfrom Australia, characterising this as paranoia. He was able to narrate events on theday of the killings but said he had suppressed what happened in the WINZ buildingand claimed he had no grievance with the victims. He said that he wanted to enter aplea of not guilty by reason of insanity, but his lawyer would not support this, sayingthere was no report suggesting the defence was available. Mr Tully said that hissymptoms had now all resolved; he no longer experienced voices, confused thinkingand paranoia. He attributed this to the successful treatment of his skin condition anddid not believe that he required antipsychotic medications.[87] Under the heading "Diagnostic Considerations", Dr Dean stated that:Mr Tully is clearly a challenging personality. He is querulous and litigiouswith a sense of righteous indignation. He appears to have a personalitystructure consistent with paranoid and narcissistic personality disorder.Features of paranoid personality disorder include a pervasive distrust andsuspiciousness of others such that their motives are interpreted as malevolent.Mr Tully suspects, without sufficient basis, that others are exploiting, harmingor deceiving him. He is pre-occupied with unjustified doubts about loyalty, isreluctant to confide in others because of unwarranted fear the information willbe used maliciously, reads hidden demeaning or threatening meanings intobenign remarks, persistently bears grudges, perceives attacks on his characterthat are not apparent to others, is quick to react angrily and has recurrentsuspicions. Mr Tully has features of narcissistic personality disorder with apervasive pattern of grandiosity and lack of empathy. He has a grandiosesense of self-importance, believes he is special, has a sense of entitlement, isinterpersonally exploitative, lacks empathy, is often envious and showsarrogant, hoity behaviours and attitudes. These are longstanding personalitycharacteristics that are likely lifelong, present prior to any psychiatricsymptoms, but have become more overt and problematic as he has grownolder.In addition, Mr Tully describes an unusual and bizarre belief about a skininfection. He believes he has contracted staph aureus, which tracks into hisbrain and causes brain swelling. He attributes this to causing psychotic-likesymptoms and cognitive impairment. At times he believed his condition wassuch his life was in danger and he is pre-occupied by treating his condition,despite little medical evidence to support his treatment programme. He hasexpressed this view persistently across settings and this clearly pre-dated hisoffending. He has had various negative investigations and opinions butpersists with his belief. His somatic belief is not in keeping with understoodmedical conditions and if refuted Mr Tully finds a way to justify his continuedbelief. His views are fixed and unshakable, even when there is evidence tothe contrary. It is possible this delusional belief has arisen as an over-valuedidea in the context of his personality disturbance. However, it is my opinionthat this is sufficient for a diagnosis of delusional disorder.Mr Tully describes periods of exacerbation in auditory hallucinations,increasing persecutory beliefs and disorganised thinking. This has resulted inadmission to psychiatric hospital in Australia. His behaviour has been bizarreat times and pre-occupied by religious beliefs. It is therefore likely he has hadintermittent psychotic disorder. This may be triggered by use of substances,such as methamphetamine, or exacerbations of his delusional disorder in thecontext of severe psychosocial stress. These symptoms do appear to beintermittent. This would best be classified as psychosis not otherwisespecified.In the past his psychotic beliefs and descriptions of his thought pattern havebeen considered to be inconsistent. He has often described these symptomshistorically. I note his medical records refer to similar delusional ideas,although he denied current symptoms at that time. He has declined to acceptmental health care, despite wishing to convince others he experiencedpsychotic symptoms. There is some suggestion of an attempt to malingerinsanity. In combination with his personality dysfunction and sense ofentitlement it is likely he has at least intermittently malingered or exaggeratedsymptoms. However, it is also equally likely he has minimised and hiddensymptoms at times. Malingering and exaggeration of symptoms can co-existwith genuine psychotic disorders, as can malingering of mental stability.[88] Dr Dean acknowledged that it was difficult to assess insanity long after thefact. He recognised that Mr Tully had been assessed by several psychiatrists followingthe alleged offending and was not assessed as suffering from psychotic symptoms.Mr Tully said he was not listened to and his symptoms were not accurately recordedby the assessors, but it was also possible that he had retrospectively attributedsymptoms to his behaviour. The lack of contemporaneous support for his assertionswas problematic for Mr Tully in proving a defence of insanity.[89] Dr Dean's own assessment was that Mr Tully "does appear to have a delusionaldisorder with intermittent periods of psychosis not otherwise specified". Psychosiswould usually be accepted by a court as a disease of the mind for purposes of aninsanity defence. It was difficult to be entirely certain whether Mr Tully wasexperiencing symptoms of psychosis, but there was ample evidence to support thepresence of his somatic delusion at the time of the offending. Accordingly, Dr Deanconcluded that he was labouring under a disease of the mind at the time of the killings.He observed that Mr Tully's psychiatric defence was not helped by his lack of recallof the specific events and added that it is not uncommon for defendants to reportamnesia for serious violent offending. Amnesia is not synonymous with being unableto understand the nature and quality of one's actions or of their moral wrongfulness.[90] Dr Dean considered that Mr Tully's somatic delusion about his skin conditionwould not in itself be sufficient for an insanity defence, but in conjunction with hispersonality structure it could explain him developing a grudge against WINZ officials.His delusional belief may have caused him some distress at the time, but it would nothave prevented him from understanding the moral and legal wrongfulness of hisactions:Mr Tully's belief about his skin condition, although a somatic delusion, wouldnot in itself be sufficient to be considered as an insane delusion.In combination with his personality structure it may explain him developing agrudge against WINZ officials for failing to provide him with accommodation,transport and help to treat his condition. His delusional belief at the materialtime may have caused him some distress but would not have prevented himfrom understanding both the moral and legal wrongfulness of entering aWINZ office and shooting employees there. He does appear to have beenindignant about his treatment by WINZ, having contacted the local newspaperabout his homelessness and failing to appreciate his own contribution to hiscircumstances, due to his sense of entitlement and querulousness.This provides a potential motive for his actions, despite the extreme nature ofthe offending.[91] Dr Dean added that Mr Tully described hearing a voice telling him to go to theWINZ office and "sort them out", appearing to confirm that he was aware of the natureand quality of his actions. He concluded that in his opinion Mr Tully "will find itdifficult to prove he was labouring under a disease of the mind to such a degree he waseither unaware of the nature and quality of his actions or he was unaware of the moralwrongfulness of his actions, having regard to commonly held standards of right andwrong".[92] In a further report dated 11 December 2019, Dr Dean expanded on his opinionat the request of Ms Levy, then counsel for Mr Tully. In particular, he reviewed thequestion of fitness to stand trial and the impact of Mr Tully's condition on sentencing.He reviewed the previous reports, including that of Professor Porter. Dr Dean statedthat:Opinion on Diagnosis and Mental StateAt the time of his trial, Mr Tully had not been diagnosed with a major mentalillness or psychotic disorder in the reports instructed by the court.However, he did have a privately instructed report diagnosing delusionaldisorder, somatic type, which is a psychotic disorder and could be considereda disease of the mind for the purposes of a psychiatric defence of insanity. Inmy report, I too have favoured a diagnosis of delusional disorder. I believehis beliefs about his skin condition is a fixed, abnormal belief, which isintensely held and unshakeable despite evidence to the contrary, in otherwords a delusion. The court appointed health assessors who saw him beforehis trial diagnosed his condition as somatic symptom disorder rather thandelusional disorder. I have come to that conclusion due to the persistence ofhis preoccupation, continuing to treat himself with Hydrogen Peroxide, wellafter his legal matters have been completed, and the persistence of thesymptoms over a number of years. Although our diagnostic conclusions maybe different, at the time the reports were written this abnormal belief wasrecognised and reported on. This view is consistent with the diagnosis ofProfessor Porter. Professor Porter hypothesised the health delusion may havearisen as a result of early bowel issues and his father's death from cancer whenhe was 14. This appears to be a plausible explanation of the development ofsuch a delusional system.Mr Tully has an evident litigious and querulous personality, resulting inoppositional and obstructive behaviour during the course of court orderedpsychiatric and psychological assessments. He did not trust legal advice andwished to defend himself on grounds that at face-value appearedunreasonable. These features persisted with a psychiatrist instructed by hiscounsel and his suspiciousness of the psychiatric profession remained when Isaw him. These decisions arose primarily as a result of his personality ratherthan due to a mental illness per se. He did not have an assessment supportinga defence of insanity and similarly, in my report in June 2018, I did not believea defence of insanity was likely to succeed. He did wish to consider a defenceof insanity but on the grounds his mind was affected by a severe skin infection,causing him confusion and psychosis, so he could not recall the offending.It was my opinion that even if the Court accepted he had delusional disorderor even a somatic symptom disorder, which would most likely constitute adisease of the mind, it is unlikely such an argument would excuse hissubsequent behaviour and lead to a defence of insanity.[93] With respect to fitness to stand trial, Dr Dean noted that Mr Tully has no insightinto the fact that he has no actual physical skin condition and so was unable to considerthis as constituting a potential defence of insanity. Rather, he wanted to run insanityand/or unfitness on the basis of the brain effects of a terminal skin condition.The Court could conclude that he was not able to make a competent decision to put adefence of insanity based on his delusional disorder:In my opinion, Mr Tully displays impaired insight regarding his delusionaldisorder, although not to a degree he has required treatment subject to theMental Health (Compulsory Assessment and Treatment) Act 1992. Thereforethe court could consider he was not able to make a competent decision to puta defence of insanity to the jury on the basis he had a disease of the mind(delusional disorder) and allow the jury to make the ultimate decision as towhether this was sufficient to render him incapable of knowing the moralwrongfulness of his actions. Rather Mr Tully wanted to run a defence of braindysfunction due to physical illness, for which there was no credible medicalevidence. The matter before the court is therefore whether his lack ofknowledge about his mental condition, despite there being no expert evidencesupporting a defence of insanity, is sufficient decisional impairment to preventhim from running this as a potential defence of insanity, regardless of theexpert opinion regarding the ultimate question before the court.[94] Dr Dean's opinion was that Mr Tully's delusion caused him to focus intenselyon this as an excuse for his conduct. He was able intellectually to understand that aguilty plea may mitigate sentence, but his fixation on his skin condition, and hispersonality characteristics, made him unwilling to consider a guilty plea. Dr Dean didnot conclude, however, that Mr Tully was unfit to stand trial. He noted that some ofthe symptoms of the skin condition were suspected of having been malingered, whichwould be consistent with Mr Tully's personality structure, and consistent withparanoid and narcissistic personality disorder. These features of his personality werea significant contributor to the alleged offending.Opinion on the Relationship Between Psychiatric Condition and theAlleged OffendingMr Tully has a personality structure consistent with paranoid and narcissisticpersonality disorder. This includes a pervasive distrust and suspiciousness ofothers, such that the motivations are interpreted as malevolent. He believesthat others are exploiting, harming or deceiving him. His narcissism giveshim a sense of grandiosity and self-importance, which leads to entitlement andlack of empathy. These features reflect his personality style and attitudes andare a significant contributor to his alleged offending. Psychiatrists would notconsider personality structure as constituting a mental illness per se ratherreflecting a combination of temperament and development.As discussed in my previous report, he has presented with consistent abnormalbeliefs of having a skin infection. The other symptoms he has reported havebeen inconsistent and there has been suspicion at least some have beenmalingered. This would be consistent with his personality structure.I would hypothesise that his delusional disorder arises from his underlyingpersecutory and narcissistic personality, preventing him from accepting otherperspectives and in combination with his sense of entitlement. Mr Tully,however, was abnormally and intensely focused on his skin condition and theneed for this to be recognised by the welfare, social and health systems.His preoccupation became overwhelming. In my opinion he genuinelybelieved he had a medical condition and was frustrated by his perception ofill-treatment by the system and the system's inability to respond to hisperceived needs. He became overwhelmed with a sense of injustice and afailure of social services and health services to recognise his medicalcondition.Although this in my view was not sufficient to reach the threshold of insanity,as described in my previous report, his delusional belief interacted with hispersonality structure to result in an extreme response to his frustration.Therefore, his delusional disorder, although not entirely leading to hisoffending, played a role in the lead up to and behaviour subsequent to theoffending. It is unlikely the circumstances leading to his offending wouldhave arisen but for his delusional belief about his health.[95] Dr Dean recorded that psychiatrists would not consider personality structureas constituting a mental illness per se, rather reflecting a combination of temperamentand development.[96] We mention for completeness that Mr Tully attached affidavits of his own tohis submissions on appeal. Some of this material related to events before trial, andsome to the conduct of the trial or preparation for the appeal. For the most part, itelaborated on his beliefs that he has a skin condition which has not been diagnosed ortreated and that he was denied access to material and facilities and counsel. We havealready rejected these grounds of appeal.New evidence about the trial[97] We have referred to Mr Tully's grounds of appeal, most of which emerge fromaffidavits he has sworn. Generally, he complains that he was denied counsel and thatthe Court appointed as amicus lawyers he did not trust and had dismissed. He saysthat he never instructed them to represent any of his defence points, that their role wasconfusing, and that their work was prejudicial to his case.[98] In his affidavit, Mr Rapley detailed his and Mr Shamy's dealings with Mr Tully,which were documented in detailed file notes. He first saw Mr Tully on 24 November2015, as his defence counsel. Mr Tully focused on his mental health and whether hewas fit to plead and/or insane at the time of the killings. Mr Rapley obtained the filewhich contained all his mental health reports and reviewed them. He subsequentlyadvised Mr Tully that there was no ability to argue that he was unfit to plead orparticipate in the trial, and that a number of psychiatrists and psychologists hadassessed him and concluded that while he may have been delusional and sufferingfrom various mental health issues, he was not insane at the time of the offending.[99] Mr Tully was not receptive to this advice. He dealt with Mr Shamy oversucceeding weeks, refusing on one occasion to speak to Mr Rapley. They next met on4 February 2016, Mr Tully having confirmed that he still wanted Mr Rapley to act forhim. At that meeting Mr Tully was hoping that the trial would be adjourned so hisfitness to plead could be reviewed. Counsel told him that would not happen.He wanted counsel to appeal the decision that he was fit to plead. They told him theydid not think were any grounds for such an appeal. They also advised him that therewas no evidence to support an insanity defence. He was unwilling to cooperate withthem in going through potential evidential challenges and discussingcross-examination points and evidence. At a subsequent meeting on 11 February,Mr Tully was angry that they would not provide him with grounds for appeal and saidthat he wanted to engage a new lawyer. That led to their eventually successfulapplication for leave to withdraw and to their appointment as amicus.[100] We note that although Mr Tully did make an accusation against counsel, sayingthat they had been working with the Crown, we do not accept that he had any doubtsabout counsels' integrity. The real reason for his dissatisfaction was their advice thatthere were no grounds to challenge or revisit his fitness to stand trial, or to advance adefence of insanity, or secure an adjournment. As we have noted above, all the expertsat that time had agreed that Mr Tully was fit to stand trial and, despite psychologicaldifficulties, could not show he had a disease of the mind rendering him incapable ofunderstanding right from wrong at the time of the shootings.[101] Mr Rapley deposed to the steps taken at trial to challenge the Crown case andattempts to engage Mr Tully, who was provided with a summary for each ofthe Crown's witnesses along with a note of possible lines of cross-examination.Throughout the first week Mr Tully refused to participate and would not speak withcounsel when they went to see him on multiple occasions each day. Messrs Rapleyand Shamy also wrote to him summarising the evidence and cross-examination, withan explanation of how their work fitted into their strategy of putting the Crown caseto the test. Mr Tully met with them on Monday 29 February, at the beginning of thesecond week of the trial, but did not take up their offer to go through the summariesthey had prepared of the evidence of the final Crown witnesses.[102] On Thursday 3 March, counsel saw Mr Tully, and spoke to him about givingand calling evidence. Mr Tully enquired whether it might be a better idea for him tostay silent and preserve his position for an appeal. Counsel told him that he would becross-examined on some very difficult issues, such as the fact that a unique symbolthat he used to identify himself was found on the shot gun shells and the bike found atthe scene. At this point Mr Tully said he felt it would be better for him not to giveevidence and to appeal, because he would then get legal representation. It wasapparent to counsel that Mr Tully's attitude towards them had changed. He asked tosee them later that day and they discussed his police statement. Mr Tully did not wanthis statement produced. On the following day there was a voir dire about thestatement, at which Mr Tully delivered his own argument. In preparation for closings,counsel prepared a closing address and gave it to Mr Tully, who noted that it containeda reference to evidence that the Crown had subsequently agreed not to adduce. On thetenth day of trial, Mr Tully appeared in court and indicated that he wished to speak tocounsel during the evidence of one of the final Crown witnesses. Mr Tully hadquestions which he wanted counsel to ask. He also wanted to know whether providingthis information to counsel would affect his ability to appeal. Counsel told him that itwould not, and the questions were asked.[103] There were discussions between counsel and Mr Tully about their closingaddress. Mr Tully marked up a copy of the address. The draft mentioned that theCCTV footage showed the gunman was right-handed. Mr Tully did not want counselto mention that, saying the jury would have seen him writing with his right hand.Mr Tully was also alive to the fact that the attempted murder charges required aspecific intent to kill. He drew counsel's attention to the Crown suggestion thatMs Curtis was shot in the leg because she had moved, noting it was inconsistent withMs Curtis's own statement. These discussions were amicable and in counsel's opinionMr Tully showed a good understanding of what was happening.[104] Mr Tully discussed giving evidence with counsel before finally making hiselection on Monday 7 March. Counsel found him alert and talkative. He said that hedid not want counsel to assist him because he was unrepresented, but then asked theiradvice. They gave him the advice they would give any defendant about it being hisdecision, and they discussed whether it would help or hurt his case. They advised himthat the Crown case was strong, gave examples of topics that the Crown would likelycross-examine him on, and offered some strategies for answering the questions.Some practice questioning was done. Mr Tully wrote out topics that he would coverin evidence and discussed them with counsel. He wanted to produce documents, oneof which was Professor Porter's report. Counsel told him he could not do so becausethe report was hearsay and he would have to call the Professor, and in any event itwould not help because the Professor said that he was not insane. During thesediscussions counsel found Mr Tully very aware of what was happening, and observedthat he asked insightful questions. When told how things he might say could be usedagainst him, he agreed not to pursue that line and would adjust and adapt. It was clearthat Mr Tully had prepared himself and knew the disclosure intimately. At 2 pmMr Tully told counsel that he was fine and ready to go. He said he had no need todeliver an opening address.[105] Mr Rapley explains that Mr Tully changed his mind after the Judge convenedthe chambers hearing which we have mentioned at [63] above, telling Mr Tully thatwhile he could give evidence about his health on the day of the shootings, the evidencecould not trigger any directions to the jury about the defences of insanity orautomatism. The Court adjourned while Mr Tully considered his position. Mr Rapleyexplained that the Judge had taken that position because Mr Tully could not diagnosehimself as insane; he needed a psychiatrist to say that. Nonetheless, his mental healthissues went to intent and whether he had the ability to form intent, so he could giveevidence about his health issues. He was warned that the Crown would cross-examinehim in an attempt to show that many of his actions were calculated. Mr Tully askedhow giving evidence would affect his appeal and said that he owed "you guys anapology" and wanted to engage them for the appeal and a retrial at which they wouldget a psychiatrist. He was told that if he were able to get a psychiatrist to say he wasinsane at the time then he would have a good defence of insanity.[106] Mr Rapley deposes that when they returned to court Mr Tully told the Judgehe did not want to give evidence because he had not had time to prepare and did notwant to put the cart before the horse in terms of an appeal for fitness. The Judgesuggested he consider it again overnight, which gave Messrs Rapley and Shamy theopportunity to review the law on insanity and automatism to satisfy themselves thatthe Judge's indication was correct. They concluded that it was; Mr Tully could notgive his own evidence to lay a basis for an insanity defence. When they resumed thefollowing morning Mr Tully confirmed that he did not wish to give evidence, nor didhe want to deliver his own closing address. He was concerned that if he did so it mightaffect his ability to appeal. Counsel continued to liaise with Mr Tully during theclosing addresses, picking up points that Mr Tully wanted to deal with. When it wasover Mr Tully thanked Mr Rapley for the quality of his address.[107] Overall, the evidence of counsel tends to confirm that Mr Tully was behavingstrategically during the trial, exploiting his absence from the courtroom and hisself-representation to preserve for appeal his contentions that he was unfit to stand trialand/or insane. When Mr Tully did engage with counsel, it was apparent that he wasfollowing the trial closely, had a good grasp of the issues and was capable of makingintelligent decisions. This does not preclude mental impairment, as we explain below,but it does tend to support the Judge's conclusion that Mr Tully had the necessarycapacity to participate.Was Mr Tully fit to stand trial?The test[108] The law regarding fitness to stand trial was restated by this Court in 2017, inNonu v R.48 The Court considered the legislative history of the relevant CPMIPprovisions and explained that the Act's requirements are designed to protect adefendant's rights to a fair trial and to present a defence; to ensure that defendants areheld accountable only if they understand the reasons why they have been prosecuted,convicted and punished; and to enhance society's interest in not placing on trialdefendants who, through lack of fitness, are unable to advance an available defence.49The Legislature chose not to limit the concept of mental impairment to those who arementally disordered and accordingly susceptible to compulsory assessment and48 Nonu v R [2017] NZCA 170.49 At [26].treatment.50 The concept includes persons who are mentally impaired through, forexample, an intellectual disability, a personality disorder or a neurological disorder.[109] The inquiry into a defendant's fitness to stand trial is not confined to functionalcompetence: that is, the basic capacity to understand what is happening and to assistcounsel. Multiple authorities indicate that it extends to decisional competence; thecapacity for rational decision-making in the context of the particular trial.51 The Courtexplained in Nonu that the defendant must be able to participate effectively in thetrial.52 This requires an assessment of the defendant's intellectual capacity to carry outrelevant trial functions. These functions are not confined to the statutory list ofcapacities in s 4 of the CPMIP:53 capacity to plead, to adequately understand the natureor purpose or possible consequences of the proceedings, or to communicate adequatelywith counsel for the purposes of conducting a defence. The inquiry must be addressedto the context of the particular defendant's trial, which may be simple or complex.54The Court emphasised that "[t]he ultimate assessment of a defendant's ability toeffectively participate in his or her trial is a judicial decision informed by expertevidence".55[110] It remains the case that the autonomy of a competent defendant must berespected; for that reason, the inquiry is into their capacity to make rational decisions,not whether the decisions they make will be in their best interests.56[111] As noted at [36] above, Mander J recognised that a mental impairment caninclude a personality disorder that is sufficiently severe to affect a person's ability toadequately participate in a trial; and if so, the Court must inquire into whether thatimpairment renders the defendant unfit to stand trial.57 The expert evidence did not50 At [25].51 R v Roberts (No 2) HC Auckland CRI-2005-092-14492, 22 November 2006 at [54]; P v Police,above n 15, at [23] and [25]–[26]; Tuira v R [2018] NZCA 43 at [71]–[73]; SR v R, above n 14, at[157]–[159]; and R v Kingi [2017] NZHC 2765 at [9]–[10]. See also R v Cumming [2006] 2 NZLR597 (CA) at [38]. But see Solicitor-General v Dougherty, above n 15, at [40].52 Nonu v R, above n 48, at [29].53 At [27].54 At [31].55 At [31].56 See R v Power CA187/96, 22 October 1996 at 8; R v Cumming, above n 51, at [43]–[45]; R vRoberts (No 2), above n 51, at [56]–[57]; and Solicitor-General v Dougherty, above n 15, at [40]and [46]–[60].57 Section 14 decision, above n 11, at [10] citing SR v R, above n 14, at [157], in which this Courtfind Mr Tully mentally impaired, but the Judge correctly held that the formal diagnosiswas secondary to the question whether Mr Tully's personality traits were sufficientlysevere to prevent him from communicating and instructing counsel, and so amountingto mental impairment.58 He considered Mr Tully's personality traits, delusional skindisorder and alleged psychosis, and closely reviewed the evidence about Mr Tully'sdecisional competence.Mr Tully was not unfit on the evidence before Mander J[112] Mander J's assessment was informed by expert evidence and his ownopportunity to observe Mr Tully before and during trial. The expert evidenceidentified Mr Tully's delusional disorder regarding his skin, and also diagnosed sometraits of a personality disorder. However, it fell short of establishing mentalimpairment. Further, Dr Norris and Mr Prince were of the opinion that Mr Tully wasable to participate in his trial. He could absorb information and consider advice, weighit up and make rational decisions. Both experts found him a difficult personality, butable to engage with counsel. The Judge's own observations bore that out, as we haveexplained above. He found that Mr Tully had demonstrated his understanding ofproceedings and was able to ask appropriate questions of witnesses and give evidencehimself. Mr Tully demonstrated that he could co-operate closely with counsel whenhe considered it in his interests to do so, resulting in competent self-representation.The Judge's findings matter; although informed by expert evidence, the assessment isultimately one of fact and judicial judgement. By the time the fitness hearingconcluded the Judge had observed Mr Tully as he engaged with the court process fora year. We consider that Mander J was correct in his assessment as the evidence stoodbefore and at trial.The new evidence tends to confirm mental impairment[113] However, we now have the evidence of Professor Porter and Dr Dean, whichwe admit for purposes of the appeal. The evidence is not fresh, but it is credible andcogent, and its admission is in the interests of justice.59 The appeal must be allowedapproved the approach to fitness taken by Fogarty J in R v Roberts (No 2), above n 51.58 At [101].59 Lundy v R [2013] UKPC 28, [2014] 2 NZLR 273 at [120].if Mr Tully were mentally impaired and unfit to stand trial in February 2016.60 Wealso have the evidence of Mr Rapley, which is relevant to the question of impairment.We accordingly admit that evidence.The argument for Mr Tully[114] Relying on the new evidence, Mr Stevenson argued forcefully that Mr Tullywas not fit to stand trial. He cited Dr Dean's opinion that Mr Tully suffered from adelusional disorder and submitted that this impaired Mr Tully's decision-makingcapacity by precluding him from advancing an available defence of insanity. Mr Tullyinsisted that his condition was physiological in origin, a claim for which there was nomedical evidence. Professor Porter also diagnosed the delusional disorder andobserved a complete lack of insight into whether the disorder could lead to a defenceof insanity. Mr Stevenson cited the judgment of this Court in Tuira v R, in whichinsanity was the only defence available but the appellant, who understood the natureand implications of an insanity plea, was unable to accept that he suffered from amental disorder.61[115] Mr Stevenson also argued that Mr Tully's delusional disorder prevented himfrom engaging rationally with counsel. He cited a file note of Mander J dated15 June 2015, in which the Judge recorded that amicus (Mr Greig) had attended onMr Tully and found that he appeared to be in pain and said he could get through acourt sitting only if he was allowed access to hydrogen peroxide. We have referred tothis document at [27] above. Counsel noted that Mr Tully became extremely upsetwhen the Judge refused to allow him to use hydrogen peroxide as a bargaining chip tosecure his co-operation, and referred to a number of minutes, judgments and file notesof Mr Rapley in which Mr Tully insisted on talking about his skin condition.Mr Stevenson submitted that Mr Tully became increasingly frustrated by what he sawas a lack of concern about his condition, which was almost certainly exacerbated by60 Tuira v R, above n 51. In that case the guilty plea resulted in a miscarriage of justice for purposesof s 232(4)(b) of the Criminal Procedure Act 2011. Further, in Mr Tully's case the defence neveradduced medical evidence. These features of the case distinguish it from Tu v R [2019] NZCA632 at [36] and Sami v R [2019] NZCA 340, (2019) 29 CRNZ 252 at [37], in which post-trialmedical evidence was ruled inadmissible. See also Cumming v R [2008] NZSC 39, [2010] 2NZLR 433 at [12]–[13].61 Tuira v R, above n 51, at [71]–[72].Corrections staff withholding hydrogen peroxide for a period. Counsel argued thatMr Tully could not be distracted from this obsession other than for short periods.Ultimately, despite all the efforts of his lawyers and amicus, Mr Tully could notparticipate effectively in his trial.Our conclusions[116] We have noted that Professor Porter, who interviewed Mr Tully in January2015, diagnosed a delusional disorder. He also found that Mr Tully strongly exhibitedsome of the criteria for narcissistic personality disorder: a grandiose sense of self-importance, a sense of entitlement, a lack of empathy, and arrogant behaviours orattitudes. Professor Porter was unable to make a definitive diagnosis, but he foundthose traits particularly strong and believed that further collateral history would likelysupport the diagnosis. Dr Dean's reports were prepared long after the trial, and so maynot be a reliable guide to Mr Tully's condition at the time,62 but his findings wereconsistent with those of Professor Porter.[117] We accept that Mr Tully suffers from an obsessive and delusional disorderrelating to his skin and has a personality structure with some strongly evidentcharacteristics of narcissistic personality disorder. These characteristics wereidentified by all the experts who examined Mr Tully. Together they dominated hisengagement with the court process, making him extraordinarily difficult to deal with.Whether or not the subject of a formal psychological diagnosis, they are capable ofamounting to mental impairment. As Mander J recognised, the question is whetherthey impaired Mr Tully sufficiently to require that he be found unfit to stand trial byreason of mental impairment.63 We are not persuaded that they did, for severalreasons.[118] First, the argument that Mr Tully lacked decisional competence confronts thedifficulty that he embraced an insanity defence. He engaged fully in a hearing in whichthe Judge heard evidence from experts, and Mr Tully, about his antisocial andnarcissistic personality traits, his skin condition and possible diagnosis of Morgellons62 SR v R, above n 14, at [58], citing R v Walls [2011] EWCA Crim 443 at [22].63 Section 14 decision, above n 11, at [103].disease, and psychotic or delusional difficulties. The substance of the evidence aboutthe skin condition at that hearing was that it was a delusion. Mr Tully himself did notaccept that, saying he was unfit to stand trial because his skin condition caused lesionsin his brain which affected his thinking. But the evidence and argument make clearthat he contended he was unfit. There is no evidence that he ever refused to advancean insanity defence on account of his belief that the skin condition is real either, andthere is no reason why that belief could not co-exist with expert evidence that his beliefevidenced a disease of the mind. We observe that in his first report Dr Dean describedthe skin condition as delusional, but Mr Tully nonetheless cooperated in Dr Dean'ssecond report.[119] Second, once the possibility that Mr Tully could not appreciate an availabledefence of insanity is put to one side, none of the experts found Mr Tully unfit to standtrial. Dr Dean did not otherwise address fitness (his opinion focused on insanity).Professor Porter concluded that he was fit to stand trial, as did Dr Norris and Mr Princewhose evidence we have already summarised. The Professor found that Mr Tullyunderstood the nature and seriousness of the charges and the point of the trial andpossible pleas, was able to pay attention and evaluate evidence, could make rationaldefence decisions, and was able to work with a lawyer.[120] Third, experts aside, there is much evidence on the trial court record thatMr Tully was able to engage in the trial process and could make rational decisionsabout his defence. We have referred to a number of instances where he demonstratedthe capacity to engage with counsel or the Court and represent himself.64[121] Fourth, there is also a good deal of evidence that Mr Tully feigned symptomsto establish insanity or impairment, or to delay or disrupt the trial, or to otherwise gethis way. The experts recognised this possibility, which was perhaps most evident inMr Tully's claim to having experienced psychotic episodes. Their views were borneout by Mr Tully's conduct in connection with the proceeding. We have referred aboveto evidence that he fabricated symptoms of pain, hearing difficulties or illness, usuallyconnected with his skin condition, at important junctures, while appearing capable and64 See [59], [62], [64], [67], [77] and [102]–[106] above.well when it suited him. The Judge described this as a strategy and an attempt tomanipulate the court process. The evidence of Mr Rapley tends to confirm the Judge'sopinion, as we have noted. We recognise that, as Dr Dean put it, malingering orexaggeration of symptoms can co-exist with mental impairment. The point remainsthat Mr Tully's disruptive and un-cooperative behaviour before and during trial doesnot establish of itself that he was unable to participate in the trial.[122] Finally, the argument that Mr Tully's conduct before and at trial evidencedunfitness rests on the implicit premise that such behaviour was not in his own interests.As noted above, however, the question is not whether Mr Tully's decisions were in hisbest interests but whether he had the rational capacity to make them. In our opinionMr Tully's conduct was far from irrational in the situation he confronted. Insanityaside, he had no defence to the murder charges. The evidence of identity wasoverwhelming, and the killings were manifestly planned and carried out with intentboth to kill and to escape. He had been found fit to stand trial. He wanted to preservefor appeal his argument that he was unfit and insane, and he wanted to argue that histrial was unfair. So it made sense to disrupt and disengage, citing ill-health. He wasable to maintain his non-participation throughout the trial while having amicusadvance, to some extent with his behind-the-scenes co-operation, successful defencesto charges of attempted murder and setting a trap.Conclusion: Mr Tully was fit to stand trial[123] In our opinion Mander J correctly found Mr Tully fit to stand trial.Was a defence of insanity available, and should it have gone to the jury?[124] As noted at [68] to [70] above, Mander J ruled, before Mr Tully made hiselection, that the defence of insanity would not go to the jury.[125] Mr Stevenson submitted that there was a legally available defence of insanity.He accepted that medical evidence is typically expected in respect of both limbs ofs 23 of the Crimes Act, but insanity is ultimately a question for the jury, which willbase its verdict on the available evidence, including the defendant's own narrative.Expert evidence is not determinative, particularly in a case, such as this, where thedefendant has been unable to co-operate with psychiatrists. There was evidence beforethe Court in this case that, at the very least, Mr Tully suffered from a delusionaldisorder. There was a great deal of evidence of Mr Tully's obsession with his skin inthe trial record. Dr Dean's evidence confirmed that the delusional disorder meets thes 23 test of "disease of the mind". Mr Tully made it clear that he wanted to raiseinsanity. Counsel emphasised that it was because of the Judge's ruling that Mr Tullyultimately did not give evidence of his disorder.[126] Mr Tully himself says that insanity should have been put to the jury on thebasis of his brain infection, which if it existed might qualify as a disease of the mind.His grounds of appeal assert that he had a disease of the mind with "automatism scitsobehaviour due to toxins".[127] Mr Stevenson also submitted that Mr Tully's delusional disorder prevented himfrom raising the available defence of insanity. We have dealt with this argumentabove, under the topic of fitness to stand trial.[128] For the Crown, Ms Thomson submitted that Mr Tully had no available defenceof insanity though she accepted that Professor Porter and Dr Dean had diagnosed MrTully with a delusional disorder, in the form of beliefs about his body that are notfounded on reality. She noted that Dr Norris might have reached the same diagnosishad she been able to interview Mr Tully for longer. However, that delusional disorderhas no nexus to Mr Tully's offending because it does not affect his ability to understandthe nature and quality of his acts or to perceive that they were morally wrong. Sheemphasised that neither of the defence experts were prepared to say he had an availableinsanity defence. Mr Tully's cognitive function is not impaired by his disorder andthere is no suggestion that he was confused about the nature and quality of those actsor unaware that they were wrong. On the contrary, the narrative facts strongly indicatethat he was aware that his acts were wrong. For these reasons, the Judge was notwrong to refuse to leave the defence to the jury.Insanity[129] Section 23 of the Crimes Act provides that:23 Insanity(1) Every one shall be presumed to be sane at the time of doing oromitting any act until the contrary is proved.(2) No person shall be convicted of an offence by reason of an act doneor omitted by him or her when labouring under natural imbecility ordisease of the mind to such an extent as to render him or herincapable—(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 rightand 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 theoffender was, at the time when he or she did or omitted the act, in sucha condition of mind as to render him or her irresponsible for the act oromission.[130] A verdict of not guilty by reason of insanity is available in law where, at thetime of the relevant act, the defendant laboured under a disease of the mind to such anextent so that he or she did not understand the nature and quality of the act or knowthat it was morally wrong, having regard to commonly accepted standards of right andwrong.65 Mr Tully invoked both limbs of s 23(2) but emphasised subs (a), insaneautomatism. There are two elements to an insanity defence: the disease of the mindand its relevant effect. Both are gauged at the time of the act, but subs (3) allows thejury to rely on evidence of insanity before or afterward.[131] Section 23 should be read with s 20(4) of CPMIP, which establishes that insome circumstances a Judge may put insanity to the jury, whether or not the defendanthas put it in issue:20 Finding of insanity(4) In a case where it appears from the evidence that the defendant mayhave been insane at the time of the commission of the offence, the65 The test of understanding and knowledge is subjective: R v MacMillan [1966] NZLR 616 (CA) at622.Judge may ask the jury to find whether the defendant was insanewithin the meaning of section 23 of the Crimes Act 1961, even thoughthe defendant has not given evidence as to his or her insanity or putthe question of his or her sanity in issue.When must an insanity defence be left to the jury?[132] "Disease of the mind" is a legal rather than a medical or psychological concept,and the questions whether a condition qualifies as a disease of the mind, and whetherit affected the defendant's knowledge or understanding for purposes of s 23(2) of theCrime Act are questions of law, to be answered by the trial judge.66 A court ordinarilyinsists on expert evidence, without which it may decline to find that the evidence iscapable of proving a disease of the mind or that the defendant lacked the requisitefactual or moral understanding.67 Absent such evidence the court may find there is aninsufficient foundation to put the defence to the jury.[133] The Judge may nonetheless put insanity to the jury where it appears from theevidence that the defendant may have been insane at the time of the offence. AsMander J noted in this case, that is consistent with s 20(4) of the CPMIP and thegeneral duty of the trial judge to put defences for which there is an evidentialfoundation.68 Similarly, the Judge may leave automatism to the jury where there is anevidential foundation for it.69 The need for an evidential foundation can be especiallyimportant, and the decision for the Judge especially difficult, where the defendant doesnot want to pursue the defence and the Judge's decision about its availability maydetermine whether the defendant gives or calls evidence.70Was there an evidential foundation for insanity?[134] As noted, Mr Tully was anxious to advance insanity, but he did not seek toadduce expert evidence that he suffered from a disease of the mind that deprived him66 Bratty v Attorney-General for Northern Ireland [1963] AC 386 (HL) at 412 and 534 perDenning LJ; and R v Cottle [1958] NZLR 999 (CA) at 1028 per North J.67 Police v Bannin [1991] 2 NZLR 237 (HC) at 241 and 242; and R v Gorrie CA372/01, 8 August2002 at [28]–[29]. Expert evidence is necessary where the parties consent to a verdict of not guiltyby reason of insanity: CPMIP, s 20(2).68 R v Tavete [1988] 1 NZLR 428 (CA) at 431.69 Bratty v Attorney-General for Northern Ireland, above n 66, at 413; and R v Cottle, above n 66, at1025.70 Hemopo v R [2016] NZCA 398 at [73] and [80].of moral understanding or knowledge. The reason why he did not adduce expertevidence, it may safely be inferred, is that the report of Professor Porter which wascommissioned by defence counsel did not support such a diagnosis and neither did thereports and evidence of Dr Norris or Mr Prince.[135] In our view the Judge was correct to find that insanity was not available on theevidence as it stood when he made his ruling. There was no expert evidence that wouldhave sufficiently evidenced a disease of the mind or a failure by Mr Tully to understandthe nature and quality of his acts or to appreciate they were morally wrong. The reportsand pretrial processes had made him familiar with Mr Tully's claimed delusions.[136] The experts whose evidence was available to the Judge when he made hisruling focused on fitness to stand trial and offered no opinion on insanity, but thereports suggest that had the experts given evidence about insanity at trial they wouldhave concluded Mr Tully was not insane. There was no evidence of an enduringmental illness at the time the reports were written:(a) We have already mentioned Dr Norris's opinion that Mr Tully was notmentally disordered or impaired when she examined him. She also saidMr Tully had the ability to make decisions and appreciate theirconsequences. In her report dated 6 October 2014 she was unable tomake a diagnosis regarding insanity in the absence of Mr Tully'sunwillingness to discuss the shootings. When she delivered her reportof 8 June 2015, she had had access to his clinical history, whichincluded observations since his arrest. She found no evidence of anenduring mental illness or mood disorder, or of any sustainedpsychiatric phenomena that affected his ability to function. She wasnot prepared to diagnose narcissistic personality disorder. Sheconsidered that if Mr Tully was diagnosed with a somatic skin disorderit would not meet the criteria for compulsory treatment.(b) Mr Prince noted that Mr Tully had not attracted a formal psychiatricdiagnosis and opined that his irritable and demanding behaviour andlack of participation were not evidence of an enduring mental illness.Mr Prince also noted no evidence of delusional thinking at the time heinterviewed Mr Tully.Was the Judge wrong to preclude insanity or insane automatism when he did?[137] There remains a question whether the Judge wrongly pre-empted Mr Tully byruling before the jury heard Mr Tully's evidence that neither insanity nor automatismwould be left to the jury. There being evidence of some disturbance of the normalfunctions of the mind, the decision to leave a defence to the jury, or not, is ordinarilymade on the whole of the evidence.71 The Judge's ruling affected the course of thetrial. We find on the evidence of Mr Rapley that the ruling likely resulted in Mr Tullyelecting not to give evidence. We further think it probable that but for the Judge'sdecision to rule out insanity and automatism Mr Tully would have sought to persuadethe jury that he was insane at the time of the shootings and unfit at trial, telling themof his skin disorder and its supposed effect on his brain, and of his alleged psychoticepisodes.[138] The case has some parallels with Hemopo v R, in which the trial judge signalledbefore the defendant made his election that the judge might find it necessary to leaveinsanity to the jury under s 20(4) of CPMIP.72 That prospect was enough to dissuadethe defendant, who feared the consequences of such a verdict and disclaimed thedefence, from giving evidence to advance his improbable claim that the victims hadharmed themselves. In Hemopo, as in this case, the judge acted for fair trial reasons,wanting to ensure the defendant knew, before making his election, about defences thatmight be left to the jury. On appeal this Court held that a judge might properly cautiona defendant in that way, though the decision to do so is a very delicate one.73 The Courtstated that there can be no general rule; the decision whether to give such a warning isone for the trial judge in the particular circumstances of the case.74 On the facts,however, the Judge's decision in that case was found to have interfered with thedefendant's fundamental right to choose whether to give evidence, for two keyreasons: the defendant had not had advice about the advantages and disadvantages of71 R v Cottle, above n 66, at 1012 and 1018 per Gresson P.72 Hemopo v R, above n 70.73 At [78]–[80].74 At [80].giving evidence, which was a complex subject well beyond his ability to comprehend,and there was neither expert nor narrative evidence for insanity. The Court thought itunlikely that the evidence the defendant may have given would have triggered the trialjudge's obligation to put the defence to the jury.[139] It does not follow that Mander J was wrong to caution Mr Tully in this case.The question here was not whether the trial Judge might put insanity to the jury againstthe defendant's wishes, having found there was sufficient evidence to put it in issue.Rather, Mr Tully wanted to advance defences of insanity and insane automatism andthe question was whether there was or would be evidence enough to allow him to doso. It was a question of law for the Judge. Mander J might have allowed Mr Tully togive evidence and left insanity to the jury, notwithstanding the absence of expertevidence of insanity. But he could do so only if satisfied, when the evidence closed,that there was sufficient evidence to put insanity in issue. He decided before thedefence case opened that he was not satisfied about that, but he was already veryfamiliar with Mr Tully's proposed defence, having conducted the fitness hearing andconsidered the reports of Dr Norris and Mr Prince in which Mr Tully recounted hisdelusions. It has not been suggested that he was wrong about evidence the defencemight call. Critically, there was to be no expert evidence on insanity. The Judgeaccordingly knew that he would be able to rule, when the defence closed its case, thatMr Tully was not labouring under a disease of the mind rendering him incapable offactual or moral understanding or knowledge.[140] As the Judge noted, his ruling was also consistent with the expert evidence hehad heard before trial.75 The Judge added that the narrative facts simply did not permitan insanity or automatism defence, but while that must have informed his view thatthe defence evidence would not assist Mr Tully he did not rest his decision on thatpoint.[141] Nor was Mr Tully's election insufficiently informed. He took advice fromcounsel about the implications of the Judge's ruling and worked through the evidencehe might give and the likely lines of cross-examination. He was well prepared and75 Election minute, above n 41, at [50]–[51].asked intelligent questions of counsel. It was made clear to him that he could not laythe foundation for a defence of insanity himself but Mr Rapley explained that theruling did not preclude Mr Tully from giving evidence of his health conditions for thelimited purpose of showing the Crown had not proved intent.76[142] We are not persuaded that Mander J was wrong to rule, before the defence caseopened, that he would not leave insanity (or sane automatism) to the jury. We are alsosatisfied that his ruling did not compromise Mr Tully's fundamental right to choose togive evidence in his own defence, or his fair trial right. So far as the latter is concerned,Mr Tully would have been exposed to pointed cross-examination had he gone into thewitness box. The prosecutor was armed with compelling evidence of careful planningand calculated action. Mr Tully likely would have been walked through the CCTVfootage frame by frame. It could not have gone well for him. It was fair in thecircumstances that he knew, before deciding whether to expose himself tocross-examination, that the defence he wished to advance in evidence would not beleft to the jury.Do the evidence of Dr Dean and the report of Professor Porter make a difference?[143] Professor Porter, whose report was available at the time of trial but notprovided to the Judge, considered that Mr Tully's account of delusional ideas waslikely to be genuine and did not think his account had been fabricated to feign mentalillness or facilitate a defence of insanity. He diagnosed a somatic delusional disorderwith respect to Mr Tully's skin condition. He reported other delusions but was notable to diagnose any specific condition because it might be attributable to drug useand appeared to have resolved. He identified, as noted above, symptoms of narcissisticpersonality disorder. However, he could find "no evidence that [Mr Tully] could beclassified as "insane" at the time of the alleged offence" and explained that Mr Tully'sclaimed inability to remember the event did not imply that he was suffering from braindysfunction at that time. There was no evidence that Mr Tully was unable to discernthat his actions were wrong or to appreciate their consequences.76 See [66] and [104]–[106] above.[144] Dr Dean's post-trial reports focused on insanity. He concluded, somewhatcautiously given that he was offering a diagnosis long after the event, that Mr Tullyappeared to have a delusional disorder with intermittent periods of psychosis nototherwise specified. He considered that diagnosis would ordinarily qualify as adisease of the mind. However, the delusional disorder would not render Mr Tullyincapable of understanding right from wrong or the nature and quality of his actions.He also diagnosed narcissistic personality disorder, finding that it may have explainedMr Tully's behaviour, but that disorder would not ordinarily be considered a diseaseof the mind.[145] In short, Dr Dean's evidence does not assist Mr Tully. The most that can besaid is that Dr Dean would characterise the delusional disorder relating to his skin asa disease of the mind. But he doubts that it rendered Mr Tully incapable of moralunderstanding. And he indicates that it may have been Mr Tully's personality disorder,which is not ordinarily considered a disease of the mind, that caused him to behave ashe did.77 That is why Ms Thomson, who argued this part of the case for the Crown,took the point that there is no connection between any disease of the mind andMr Tully's actions.Conclusion: the Judge was right not to leave insanity to the jury[146] We conclude that Mander J was correct not to leave insanity to the jury, andthat he was not wrong to make that decision when he did, before the defence caseopened.[147] We record, for the avoidance of doubt, that there is no evidential foundationfor a claim of sane automatism. There is no evidence that Mr Tully suffered from acondition that did not amount to a disease of the mind but might cause unconsciousinvoluntary action.7877 Simester and Brookbanks in Criminal Law – A to Z of New Zealand Law (online ed, ThomsonReuters) at [20.10.3.3] say there is no consensus about whether a personality disorder is a diseaseof the mind, but authority is generally against it as the person typically retains moralunderstanding. See for example R v Hamblyn (1997) 15 CRNZ 58 (CA) and French v R [2014]NZCA 297. See also England and Wales Law Commission Criminal Liability: Insanity andAutomatism (Discussion paper, 23 July 2013) at [1.90], [3.3] and [4.102]–[4.116]. But see R vDixon [2007] NZCA 398, [2008] 2 NZLR 617 at [52].78 R v Cottle, above n 66, at 1020 per Gresson P.Was Mr Tully denied his right to counsel at trial?[148] Mr Tully maintained throughout that he wanted counsel of his choice anddismissed all seven trial counsel for good reason. He says that he was forced to go totrial self-represented because the Judge would not adjourn the trial to allow him tobrief new counsel whom he could trust and communicate with.[149] We have referred at [45] above to the adjournment granted in November 2015and the Judge's warning that the trial would proceed in February 2016. WhenMr Tully again refused to co-operate with counsel, the Judge characterised hisbehaviour as a deliberate tactic to avoid being placed on trial.[150] In his evidence before us Mr Rapley explained that Mr Tully was unhappyabout his advice that on the expert reports an insanity defence was not available andhe was fit to stand trial. Nor did Mr Tully appreciate being told that he had receiveddisclosure, or that the trial would not be adjourned, or that there did not appear to begood grounds for an appeal against the finding that he was fit.[151] This advice was unwelcome and in other circumstances it might reasonablyhave caused Mr Tully to seek alternative counsel. In this case, however, Mr Tullymust have known that he would get the same advice from any lawyer. We do not haveevidence from the other counsel who had represented him, but we infer from hiscomplaints about their alleged refusals to do what he wanted that they had given himsimilar advice. The Judge had also told him clearly in November that the trial wouldnot be adjourned again. In the circumstances it made no sense to dispense with theservices of counsel unless, as the Judge found, Mr Tully wanted to delay and disrupthis trial, creating grounds for appeal. It is that rather than any genuine loss ofconfidence in counsel that caused him to dismiss Messrs Rapley and Shamy. We aresatisfied that his complaint about them conspiring with the Crown (see [47] above)was a tactic to force the Judge to allow them to withdraw; he made a joke of it whentalking to counsel in private. We are also satisfied that he was given the opportunityto re-engage them.[152] Mr Rapley's evidence invites the inference that disruption was indeedMr Tully's strategy. It demonstrates that Mr Tully appreciated he was very likely tobe found guilty and wanted to preserve grounds for an appeal, including the conductof the trial and the role of counsel. He then behaved strategically, accepting theiradvice where he thought it would assist him without jeopardising his prospects onappeal.[153] It is not in dispute that s 30(2) of the Sentencing Act 2002 was satisfied.Mr Tully was told repeatedly from an early stage of his right to counsel and to legalaid. He was given repeated opportunities to exercise that right. The Judge found thathe was trying to sabotage his trial and by his conduct had forfeited his right to appearby counsel. We agree that he must be deemed to have waived his right to appear bycounsel.79 It was a decision that, as we have already found, he was competent to make,and he cannot now complain about it. There was no breach of his fair trial right in thecircumstances.80Did Mr Tully's exclusion from the courtroom make his trial unfair?[154] Mr Tully argues that his trial was unfair by reason of his absence. His evidenceand argument focus on his health; he says he had serious health issues thatcompromised his preparation and he was too unwell to conduct his defence. We havealready rejected these claims. It remains necessary to consider whether Mr Tully's fairtrial right was breached by his absence from a trial at which he was self-represented.[155] Under the Criminal Procedure Act a defendant has the general right to bepresent in court during any hearing in relation to the charge against them,81 and theymust be present at any hearing for which they have been remanded to appear, as wasthe case here.82[156] However, the right to appear is qualified; it does not apply where the defendantso interrupts the hearing as to make it impracticable to continue in their presence.Section 117 of the Act provides that:117 Defendant generally may be present at all hearings79 R v Condon, above n 27.80 At [80].81 Criminal Procedure Act, s 117.82 Section 118.(1) The defendant may be present in court during any hearing in relationto the charge against him or her.(2) Subsection (1) does not apply if the defendant interrupts the hearingto such an extent that it is impracticable to continue in his or herpresence.(3) The court may permit the defendant to be out of court during thewhole or any part of a hearing on any terms the court thinks fit.[157] Similarly, the obligation to appear when the defendant has been remanded todo so does not apply where the defendant so disrupts the hearing that it is impracticableto continue in their presence:118 Hearings at which defendant must be present(1) A defendant must be present at any hearing if he or she—(a) is on police bail, or has been summoned, to attend thathearing; or(b) has been remanded in custody, or on bail or at large, to attendthat hearing.(2) Subsection (1) does not apply if—(a) the court excuses the defendant from attending the hearing orany part of the hearing; or(b) the court orders that the defendant be removed from the courtfor interrupting the hearing to such an extent that it isimpracticable to continue in the defendant's presence; or[158] It cannot be doubted that, as the Judge found (at [50] above], Mr Tully sodisrupted his trial as to make it impossible to continue in his presence. That was hisobjective, and he succeeded. It follows that s 118(2)(b) authorised the Judge tocontinue in his absence. Nor can it be doubted that he was given every opportunity toreturn to the courtroom if he would allow the trial to continue. Mr Tully was not inthe courtroom, but he did not cease to be a participant. He continued to engage withthe Court and counsel as he saw fit.[159] The question remains whether the resulting trial was fair. As the Judgerecognised, courts characterise the fair trial right as absolute and do not allowdefendants to waive it.83 If in the circumstances of the trial as a whole that right wasbreached, the trial was unfair for purposes of s 232(4)(b) of the Criminal ProcedureAct.[160] We have referred at [51] above to the Judge's reasons. He analysed the issueby drawing an analogy to ss 121 and 122 of the Criminal Procedure Act, which governthe case where a defendant does not appear for trial (and accordingly were not strictlyapplicable here). Those provisions state, in substance, that the court may try thedefendant in their absence where the defendant has no reasonable excuse fornon-attendance and it is not contrary to the interests of justice to continue. Relevantconsiderations include the nature and seriousness of the offence, the likely length ofany adjournment, the particular interests of victims and witnesses, and "any issues thatthe defendant has indicated are in dispute and the extent to which the defendant'sevidence is critical to an evaluation of those issues". The Judge also cited Kumarv R,84 in which this Court referred to the decision of the House of Lords in R v Jones,85in which considerations relevant to trial fairness included whether the defendant wasrepresented, the risk of the jury drawing improper inferences from the defendant'sabsence, and the interests of the public generally. The House of Lords also held thatthe seriousness of the offence should be assessed from the perspective of thedefendant, victims and the public.[161] We agree with the Judge that no purpose would have been served by anadjournment. This was not a case in which an absent defendant might turn up at anadjourned hearing. Mr Tully had been given ample opportunity to co-operate and toappear by counsel. He had chosen to disrupt proceedings in the knowledge that thetrial would continue. The offending occurred on 1 September 2014, some 17 monthsprior to trial, and the interests of the victims, witnesses and the public dictated thatthese extremely serious charges should be brought to trial. Mr Tully would havedisrupted any future trial in the same way. The Judge recognised that Mr Tully wouldbe at a disadvantage because he would be unable to give his version of events, but it83 See R v Condon, above n 27, at [38] and [77].84 Adjournment minute of 25 February, above n 35, at [24], citing Kumar v R [2013] NZCA 77,[2013] 3 NZLR 201 at [21].85 R v Jones [2002] UKHL 5, [2003] 1 AC 1 at [58].is not clear what his defence might be. Mental state aside, he had not pointed to adefence for which his evidence was critical.[162] As it turned out, Mr Tully eventually returned to the courtroom and, with theassistance of amicus, made an informed decision not to give evidence. Counsel wereinstructed to advance the defence case, and as we explain below, they did so assuccessfully as could be expected and without contradicting the case that Mr Tullywished to advance. He did not have, and does not now say that he had, a positive casethat he was not the shooter. The jury were given appropriate directions throughout,and the mixed verdicts suggest they did not hold Mr Tully's absence against him.[163] For these reasons we are satisfied that Mr Tully's absence did not cause histrial to be unfair.The role played by counsel assisting the court[164] We have referred at [49] above to the brief given to amicus curiae. To asubstantial extent their brief corresponded to the role which this Court subsequentlyoutlined for standby counsel in Fahey v R.86 However, they had previously served asMr Tully's defence counsel, a practice discouraged in Fahey, and they were permittedto advance what they judged to be the best case for the defence.[165] Mr Stevenson focused on the first of these points, submitting that it wasarguably inappropriate to appoint counsel with whom Mr Tully had fallen out.He submitted that the better approach, given Mr Tully's psychological characteristics,would have been to recognise a reasonable possibility that paranoia was a substantialcause of his problems in retaining counsel. Mr Tully confirmed that in his affidavit,saying that he was "operating from a place of paranoia and fear" and did not trust orfully brief counsel. He complains that he was concerned about their approach, but hedoes not go so far as to say that amicus advanced a defence inconsistent with hiswishes. He says that proof of identity was not seriously in issue but "the mentalelements were". He adds that the role of amicus was never clear to him, or to the jury.86 Fahey v R [2017] NZCA 596, [2018] 2 NZLR 392.[166] In Fahey this Court addressed the increasingly common practice of appointingamicus curiae to assist self-represented defendants. The Court responded to the bar'sconcern about conflicts of duty that may arise, especially where former counsel for thedefendant is appointed in that role. It drew a distinction between the roles of counselappointed to assist the court and standby counsel appointed to assist a self-representeddefendant. Amicus briefs should be confined to the traditional role of assisting thecourt itself.87 Standby counsel acts as an advocate for the defence and takesinstructions from the defendant.88 Citing one of Mander J's rulings in this case, theCourt approved of standby counsel appointments where a court anticipates that adefendant will dismiss their own counsel during trial.89 The Court offered generalguidance about the brief that might be given to standby counsel:[82] (a) Counsel should advise the defendant on the relevant law, trialprocess and courtroom etiquette.(b) Counsel should assist the defendant, especially one who is incustody, with resources and access to witnesses.(c) Counsel should assist as and when the defendant requests byconducting any trial processes from plea to verdict.(d) Counsel should be prepared to act as defence counsel,assuming the conduct of the defence in the ordinary way, ifthe defendant so decides.(e) So long as the defendant remains self-represented theappearance of self-representation should be maintained forthe jury.[167] The Court discouraged but did not prohibit the appointment of a defendant'sformer counsel as standby counsel.90 The Court accepted that the practice carries risks,one of which is that where there has been a loss of confidence such that counsel maynot be able to discharge the role adequately. Where counsel seeks to withdraw at alate stage a court may inquire cautiously into the reasons to satisfy itself whethercounsel could serve in a standby role.87 At [80].88 At [81].89 At [96].90 At [92]–[95].[168] The Court was invited in Fahey to hold that court-appointed counsel may beappointed to take control of the defence by advancing such defence as counsel thinksfit. The Court did not preclude that possibility, noting a principled argument for it andsome support in the authorities, but it remained to be seen to what extent it wasnecessary to go so far.91 In a companion case, Fawcett v R, the Court allowed anappeal where amicus had been given such a brief and had advanced a defence that wasincompatible with the defendant's desired defence and for which, it appeared onappeal, there was an evidential foundation.92[169] We have discussed the circumstances in which Messrs Rapley and Shamywithdrew and were appointed as amicus. The Judge did inquire into the circumstancesand satisfied himself, correctly in our view, that counsel could serve in that capacity.The brief given to them was explained to Mr Tully and the jury, for whom theappearance of self-representation was maintained. It was essentially a standby role asthis Court subsequently described it in Fahey.[170] The brief departed from that of standby counsel in one important respect.Counsel were authorised to advance such defence as they thought best, and they werenot required to act in accordance with Mr Tully's wishes. That might have occasioneddifficulty, as happened in Fawcett, but the defence they advanced — identity and intent— was consistent with Mr Tully's preferred defence of insanity or automatism, whichwere precluded by the evidence and the Judge's rulings rather than anything counseldid.[171] We do not accept that Mr Tully was confused by counsels' role or that hismental health prevented him from working with them. We have already explainedthat while he wanted to keep his distance from counsel he also worked co-operativelywith them when it suited him. He did so as they briefed him about his evidence andwhen preparing the closing address.[172] We are not persuaded that the work of amicus occasioned a miscarriage ofjustice.91 At [101]–[102].92 Fawcett v R [2017] NZCA 597.Conviction appeal result[173] We grant leave to adduce further evidence on appeal. The conviction appeal isdismissed.The sentence appealThe sentencing[174] Mr Tully was sentenced on 27 May 2016. He remained self-represented, withMessrs Rapley and Shamy appearing as amicus. The Crown had intimated that itintended to seek a life-without-parole sentence, but it appears that application wasabandoned when it became clear that the Canterbury District Health Board wanted tohave the necessary health assessments done elsewhere and the process would takesome months. In the result there was no further health assessment and sentencingproceeded on a Corrections pre-sentence report which benefitted from discussionswith Mr Tully's mother and sister. The report recounted Mr Tully's background andhis explanation that he doubted he committed the offences, which may have happenedduring a blackout caused by a bacterial infection in his brain, and said that he wasmentally unwell at the time. The report disclosed previous convictions for threateningto kill and presenting a firearm and opined that Mr Tully presented a high risk to others.[175] At sentencing the Crown contended for a minimum period of imprisonment of33 years. Mr Rapley accepted that s 104 of the Sentencing Act was engaged, meaningthat the minimum period must be not less than 17 years. He emphasised that Mr Tullywould be an elderly man when he became eligible for parole and pointed out that heis unlikely to be released if, in the opinion of the Parole Board, he remains a risk atthat time. Counsel argued for a starting point of 23–25 years and a discount for mentalhealth or diminished responsibility. Mr Tully maintained that he was not "in thecorrect frame of mind" at the time and argued that that had not been recognised byanyone who had reported on his condition.[176] Mander J recounted the facts, finding that:9393 Sentencing notes, above n 1.[9] You set upon a plan to deliberately target WINZ employees who haddealt with you and with whom you had developed some form of grudge.You entered the WINZ office that morning with the intention of killing thesepeople. You made the necessary preparations to carry out this plan, includingarming yourself with a shotgun, disguising yourself and assembling your kitfor the purpose of evading capture.[177] The Judge acknowledged the profound impact of the offending on Mr Tully'smany immediate victims, and the wider impact on WINZ staff and others who dealwith the public in circumstances that can be stressful and difficult. He identified thatthe relevant sentencing purposes were community protection, accountability anddenunciation, and added that the sentence must serve as a general deterrent, to affordprotection for others in occupations that expose them to the disaffected.94[178] Turning to aggravating factors, the Judge noted that the victims werevulnerable in their open plan office and found the offending premeditated.95 Mr Tullyhad carefully planned the crimes to ensure his escape. He rejected any suggestion ofprovocation, finding rather that Mr Tully's actions likely could be attributed to hisdeep-seated sense of entitlement.96[179] The Judge turned to Mr Tully's personal circumstances.97 He noted that whilethere had been reports of drug-induced psychosis in Australia, there had never been adiagnosis of an enduring mental illness. He accepted that Mr Tully had a persistentsomatic preoccupation with his skin and his health in general. He also noted persistentaccounts of Mr Tully having a grandiose sense of entitlement with features ofnarcissistic personality disorder which were likely associated with the offending. Butthere was no foundation for a finding of mental illness or impairment which woulddiminish culpability. The Judge found Mr Tully a man of considerable intelligenceand did not accept that any personality disturbance affected his understanding of whathe set out to do or caused him to misapprehend the wrongfulness of his actions:[35] The cluster of anti-social and narcissistic personality traits no doubtwere a contributing factor in your offending but I do not consider them capable94 At [22]–[23].95 At [30]–[31].96 At [32].97 At [33]–[35].of mitigating the length of the minimum period of imprisonment; to thecontrary, your innate personality traits underline the risk you present to thecommunity.(Footnote omitted.)[180] With respect to risk to the community, the Judge noted that the pre-sentencereport recorded Mr Tully's continuing sense of injustice and found his attitudes notconducive to rehabilitation. Mr Tully's deep-seated grievances were capable ofleading to murderous action. He appeared to have no remorse and no regard for thesanctity of human life.98 Mander J concluded that:[40] Mr Tully I consider you to be a very dangerous person, clearly capableof very violent actions. Because of the high risk of harm you present there isa need for community protection which should be reflected in the length ofthe minimum term. I have already specifically observed the need for thelength of the minimum period of imprisonment to adequately denounce youractions and in particular for the sentence to provide deterrence.[181] The Judge found that previous convictions precluded any allowance for pastgood character but did not call for an uplift.99 He arrived at a sentence of lifeimprisonment with a minimum period of 27 years.[182] Mander J did not identify a starting point, but he did cross-check the figure of27 years against a long list of comparable cases, including a number that involvedmultiple victims or other especially serious aggravating factors.100 He concluded thatthe minimum period for the two charges of murder was 27 years imprisonment,meaning that Mr Tully would become eligible for parole at the age of 77. Thatminimum period was found appropriate having regard to comparable cases. The98 At [36]–[37].99 At [38].100 At [42] citing R v Bell CA80/03, 7 August 2003; R v Howse [2003] 3 NZLR 767 (CA); R v Reid[2009] NZCA 281; R v Somerville HC Christchurch CRI-2009-009-14005, 29 January 2010; R vReihana HC Rotorua CRI-2005-070-7328, 29 June 2007; R v McLaughlin [2013] NZHC 2625; Rv Konia HC Palmerston North CRI-2005-054-2095, 30 June 2006; R v Ogle HC WellingtonCRI-2009-091-2763, 16 October 2009; R v Maheno [2013] NZHC 2430; R v McKenzie [2009]NZCA 169; R v Samoa CA85/04 CA138/04, 4 August 2004; R v Cui CA333/05, 20 June 2006; Rv Frost HC Greymouth CRI-2010-018-344, 3 October 2011; R v Lundy (2002) 19 CRNZ 574(CA); Malik v R [2015] NZCA 597; R v Burton HC Wellington CRI-2007-085-736, 3 April 2007;Robertson v R [2016] NZCA 99; R v Dixon HC Auckland CRI-2003-092-26923, 27 May 2005;and R v Tarapata [2015] NZHC 1594; and R v Ying (2004) 20 CRNZ 1078.sentence for the charge of attempted murder was 11 years, and the sentence on eachof the firearms charges was four years.101Submissions[183] Mr Stevenson submitted, citing E (CA689/10) v R and R v Verdins, thatMr Tully's delusional disorder is relevant to sentencing, for without that disorder it isunlikely the circumstances that led to the offending would have happened.102 Hereminded us of Dr Dean's opinion that:It is unlikely the circumstances leading to his offending would have arisen butfor his delusional belief about his health.The court may consider this to be a mitigating factor when consideringappropriate sentence should the court accept Mr Tully's appeal has merit onlegal grounds.[184] Mr Stevenson submitted that Mr Tully's delusional disorder mitigatedculpability and the need for deterrence, and it may mean that his sentence is likely tobear more heavily upon him, emphasising that Mr Tully is adamant that he will die ofhis skin condition in prison. He further submitted that the same condition preventedMr Tully from understanding his guilt and taking advantage of a credit for a guiltyplea, in a case in which the prosecution evidence was very strong.[185] In his affidavit Mr Tully concurred that the minimum period did not take intoaccount his mental health but added that neither did it reflect his remorse for thevictims. He acknowledged the hurt caused and the terrible pain inflicted. This is sofar as we know the first expression of remorse. However, he did not take theopportunity to confirm it at the hearing before us. We are not prepared to accept thathe experiences remorse. His position remains that he should not be held responsible.[186] For the Crown, Mr Lillico submitted that Dr Dean's opinion that the offendingwould not have happened but for the delusional skin disorder is not entirely borne outin the evidence; Mr Tully was angry partly because he had not been given money fora mobility scooter or an expensive bicycle, and partly because food and101 At [44]–[45].102 E (CA689/10) v R [2011] NZCA 13, (2013) 25 CRNZ 411; and R v Verdins [2007] VSCA 102,(2007) 16 VR 269.accommodation money was to be treated as a loan. In other words, it was Mr Tully'ssense of entitlement rather than his delusional disorder that likely caused his grievancewith WINZ. A mental disorder that has no causal effect on culpability cannot mitigatesentence. Nor should Mr Tully's narcissistic personality disorder mitigate hissentence; it rather increases his risk to the community. It was not Mr Tully's delusionalbeliefs that prevented him from pleading guilty, but rather his insistence that he didnot remember the offending and so should not be held responsible for it.Analysis[187] The appellate question is whether the minimum period of 27 yearsimprisonment is manifestly excessive. The Court is divided on the answer. Venningand Katz JJ consider that 27 years is appropriate. Miller J would reduce the minimumperiod to 25 years.[188] We need not rehearse the several judgments of this Court dealing with thecorrect approach to setting a minimum period under ss 103 and 104 of the SentencingAct. They are summarised in the Court's judgment in Robertson v R, which we citefor convenience:103[80] There is a line of authorities in this Court explaining that asentencing judge should approach the imposition of a minimum period underss 103 and 104 of the Sentencing Act in the following way. First, the judgeshould compare the offender's culpability with cases of murder that attractthe statutory minimum of 10 years, which serves as a datum point orbenchmark. Second, the judge should decide whether an additional minimumperiod is needed to satisfy the sentencing purposes of accountability,denunciation, deterrence and community protection. When following theseprocesses the judge must apply the legislative policy that, in general, thepresence of one or more s 104 factors justifies a minimum period of not lessthan 17 years; and further, that there may be cases in which the sentencingpurposes in s 103(2) require that the sentence be served without parole. Third,the judge should compare sentencing decisions in other cases for reasonableconsistency of outcome. As this Court explained in R v Howse and repeatedin R v Bell, the primary comparison is between the individual case and the10-year datum point. Comparison with other cases is a secondary requirement,albeit necessary and important as a check.[81] When comparing cases it is also necessary to bear in mind that thelegislation has changed over the years. In some cases s 104 did not applybecause the offending predated the Sentencing Act. In others the offence wascommitted before s 103 was amended in 2004 to specify that the purposes of103 Robertson v R, above n 100 (footnotes omitted).denunciation, deterrence, accountability and community protection mayjustify a minimum period longer than 10 years. (Before amendment s 103simply directed judges to consider the circumstances of the offence.) Since2010 the legislation has contemplated that the same purposes may require thatthe sentence be served without parole. In addition to these statutory changes,sentencing levels evolve with collective experience.[189] The court begins by comparing the instant case with cases that attract thestatutory minimum period of 10 years. This case features a number of seriousaggravating factors: Mr Tully murdered two victims and attempted to murder a third;Mr Tully set out to kill all three victims (and possibly another) and planned his escapeto allow him to avoid detection; the victims were public servants acting in the courseof their duty and attacked for that reason; the murders were cold-bloodedexecution-style killings; and there was an element of victim vulnerability. The firstthree of these factors qualify Mr Tully for a minimum period of not less than 17 yearsunder s 104 of the Sentencing Act.104[190] It is correct that this case lacks a number of the aggravating features that haveled courts to impose long minimum periods in other cases. The murders were notcommitted in the course of another crime, nor were the victims killed to avoiddetection.105 The murders were callous but they were not marked by the exceptionalcruelty seen in some cases.106 They did not involve entry to a private home.107[191] However, as this Court observed in Howse:108 The primary focus of the sentencing Court should be to compare theculpability of the case in hand with the culpability inherent in cases which arewithin the range of offending which attracts the statutory norm of ten years.The primary question is how much more than the statutory norm the instantoffending requires in order to achieve the necessary additional punishment,denunciation and deterrence.[192] The aggravating factors of Mr Tully's offending clearly do engage, to a veryhigh degree, all of the section 103 purposes of accountability, denunciation anddeterrence. In the view of the majority the organised and calculated manner of the104 The third factor qualifies under s 104(1)(i), having regard to subs (1)(f).105 See R v Bell; R v Burton; R v Reid; and R v Samoa, above n 100.106 See R v Bell HC Auckland T.020505, 13 February 2003 at [25]; and R v Ogle at [63]; andRobertson v R at [82], above n 100.107 See R v Dixon at [27(b)]; R v Konia at [7]; R v Reihana at [25]; and R v Ying, above n 100.108 R v Howse, above n 100, at [61].killings and the attempted murder of the third victim confirm Mr Tully's culpabilityand more than offsets the fact that they were not committed in the course of anothercrime. Again, as this Court observed in Howse, it is entirely reasonable to regard thenumber of victims as relevant to overall culpability as the greater the number ofvictims the more people will usually be traumatised and affected by the offending.109Further, Mr Tully's planning extended to avoiding detection. For these reasons themajority agree that Mander J's starting point of 27 years was correct.[193] Miller J concurs in the reasoning of the majority but would adopt a 25-yearstarting point by reference to other cases. In Bell, for example, the murders werecommitted in the course of a crime and to avoid detection, and the killings wereespecially brutal.110 A 30-year minimum period was imposed on appeal, (although itis accepted that the case predated the 2004 amendments to the Sentencing Act, whichmight have resulted in a higher minimum period). In Howse, which also predated theamendments, the murders were highly callous and they were evidently committedbecause the victims had complained of sexual offending by the defendant.111The minimum period was reduced to 25 years on appeal. There are a number ofsingle-victim cases in which long minimum periods were imposed,112 but in thosecases the offender's history of the circumstances of the offending pointed to a veryhigh risk of reoffending.[194] We agree with the Judge that there is an imperative need for communityprotection.113 It is a function of personal circumstances in Mr Tully's case, so we treatit as a personal aggravating factor. His sense of entitlement is likely to bring him intoconflict with others and he is capable of being very dangerous. Because thesecharacteristics are primarily the product of a personality disorder, there is no reasonfor optimism about rehabilitation. Mr Tully's intractable sense of grievance, which isevident in his every dealing with the Court, may well preclude treatment.109 R v Howse, above n 100, at [62].110 R v Bell, above n 100.111 R v Howse, above n 100.112 R v Reid; R v McLaughlin; R v McKenzie; R v Burton; Robertson v R; and R v Dixon, above n 100.113 Sentencing Act, s 103(2)(d).[195] The life sentence means that Mr Tully may be detained for life, and he will notbe released unless and until the Parole Board considers that his reoffending risk hasbeen reduced to an acceptable level. Nonetheless, s 103 recognises that communityprotection may justify a longer minimum period, and a court must be prepared to makeits own assessment when the circumstances require it and the evidence and sentencingmaterials permit.114 There are a number of cases in which the need for communityprotection has contributed to a very long minimum period.115[196] In none of those cases would the offender be at such an advanced age at theend of the minimum period as Mr Tully will be. Nevertheless, the majority considerthat Mr Tully's risk is likely to endure, having regard to his mental condition andnarcissistic personality, so that while they would not increase the starting point forsuch risk in the circumstances, the possibility that it may abate with age does notwarrant a reduction. Miller J considers it a reasonable possibility that advanced agemay sufficiently mitigate the risk that Mr Tully presently presents, and for that reasonwould not uplift a starting point of 25 years for reasons of community protection.[197] We agree with the Judge that Mr Tully does not experience remorse. The onlypossible mitigating factor is his mental health. It is a factor that may mitigateculpability or make a prison sentence harder to endure. As noted, Mander J made noallowance for Mr Tully's mental health. The Judge described the delusional skindisorder as a "preoccupation".116 With the benefit of Dr Dean's evidence, we thinkthat it is properly characterised as a mental illness.[198] We also accept that but for that illness Mr Tully might not have approachedWINZ or become as insistent as he did on receiving what he thought were hisentitlements. Nonetheless, it was his narcissistic sense of entitlement rather than hisdelusional skin disorder that explained his animus toward WINZ. His planned,organised and purposeful behaviour, which extended to disguising himself and makinghis escape, strongly indicates that he well understood what he was doing. We agreewith the findings of fact made by Mander J and quoted at [176] above. We add that in114 Robertson v R, above n 100, at [84].115 See R v Bell; Robertson v R; R v McLaughlin; R v Burton; R v Reid; and R v Dixon, above n 100.116 Sentencing notes, above n 1, at [20] and [33].our opinion Mr Tully is an intelligent man who behaved strategically throughout histrial, and this appeal, exploiting his health complaints to escape accountability for hisactions.[199] As noted above at [75], Mr Tully underwent genetic testing for 47,XYYSyndrome. The results showed "no evidence of numerical or structural chromosomeabnormalities" and "no evidence of an additional Y chromosome". There is thereforeno basis for a diagnosis of the Syndrome. We declined Mr Tully's requests for furthertesting for other conditions he believes he may have.[200] In these circumstances, we are not prepared to accept that Mr Tully's mentalconditions mitigate his culpability. On the contrary, they contribute to the long-termnature of the risk that he presents to others. And while we recognise that his delusionalskin disorder causes him distress, we do not accept that imprisonment will make itsignificantly harder to bear.Sentence appeal result[201] The sentence appeal is dismissed.Solicitors:Crown Law Office, Wellington for Respondent