R v TOFILAU [2019] NZHC 2145

R v TOFILAU [2019] NZHC 2145 [29 August 2019]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2018-004-11745[2019] NZHC 2145THE QUEENvSOLOMONA TOFILAUHearing: 29 August 2019Counsel: E J Smith for CrownL O Smith (on instructions from A S Bloem) for DefendantJudgment: 29 August 2019JUDGMENT OF BREWER JSolicitors:Meredith Connell (Auckland) for CrownBloem & Associates (Albany) for DefendantIntroduction[1] Mr Tofilau is charged that on 27 December 2018 at Auckland he attempted tomurder Michael Norris. He is remanded in custody on that charge.Background[2] The summary of facts says Mr Norris and Mr Tofilau were known to each other.They had lived in the same street. By Mr Tofilau's account, he had for some timeharboured resentment towards Mr Norris who he perceived to be a negative influenceon the neighbourhood.[3] At about 9:30 am on Thursday, 27 December 2018, Mr Tofilau was at his homeaddress. He saw Mr Norris in the street and decided to confront him. He took withhim a machete. Mr Tofilau accosted Mr Norris and, without warning or provocation,swung the machete at Mr Norris's head. At the last moment Mr Norris managed toraise his arm to protect himself. The machete blow caused a deep wound toMr Norris's left forearm. Mr Tofilau continued to attack with the machete andMr Norris suffered a less significant cut to the left side of his neck before a bystanderintervened and disarmed Mr Tofilau. The police attended shortly afterwards, andMr Tofilau was arrested.[4] Mr Tofilau told the police he intended to kill Mr Norris by cutting his head offand said that Mr Norris was lucky not to have been killed and lucky to have raised hisarm in a defensive way. Mr Tofilau said he thought Mr Norris had stolen his televisionset.Fitness to stand trial[5] The issue for me now is whether Mr Tofilau is fit to stand trial.[6] Preliminary procedures have been carried out in accordance with the CriminalProcedure (Mentally Impaired Persons) Act 2003 ("the Act").[7] A defendant is unfit to stand trial if they are unable, due to mental impairment,to conduct a defence or to instruct counsel to do so. This includes a defendant who,due to mental impairment, is unable to plead, to adequately understand the nature orpurpose or possible consequences of the proceedings, or to communicate adequatelywith counsel for the purposes of conducting a defence. The submission on behalf ofMr Tofilau is that he is within this definition. The Crown accepts that this is the case.[8] Reports were obtained as required from two health assessors. Both are highlyexperienced.[9] The first report is from Dr Goodwin, a consultant psychiatrist, dated 5 February2019. The second report is from Dr Easden, a registered senior clinical psychologist,and is dated 3 April 2019.[10] I convened the first part of this hearing on 15 August 2019. I was reluctant torely on those two reports because of what they said about Mr Tofilau and becauseneither health assessor had seen the DVD interview of Mr Tofilau with the policeimmediately following his arrest.[11] The points that concerned me were that, first, Dr Goodwin interviewedMr Tofilau without the benefit of an interpreter. Mr Tofilau is of Samoan origin andcame to New Zealand when he was young. According to Dr Easden, he is neitherfluent in Samoan nor English. He needs an interpreter to best understand what he isbeing asked and to best respond to what he has been asked.[12] So far as Dr Easden's report was concerned, I noted that because of theselinguistic difficulties Dr Easden was unable to administer a neuropsychological test toassess the level of Mr Tofilau's competence. Dr Easden did have, for part of hisinterview, the benefit of an interpreter, but it seemed to me a communication assistantmight have been beneficial.[13] I directed further reports. I requested that the further assessments be made withthe assistance of an interpreter and a communication assistant. I directed the healthassessors be provided with the DVD police interview with Mr Tofilau and thetranscript recording it. I adjourned the fitness hearing to today.[14] I now have updated reports from the two health assessors. Dr Goodwin'sreport is dated 26 August 2019 and Dr Easden's report is dated 27 August 2019. Anaddendum from Dr Easden dated 28 August 2019 is also to hand.[15] Both health assessors remain of the view that Mr Tofilau is unfit to stand trial.The position of Crown and defence remains unchanged. Of course, it is still a matterfor me and so I now go through the statutory procedure.[16] First, on the evidence of the two health assessors I am satisfied on the balanceof probabilities that Mr Tofilau is mentally impaired. I record that finding. It is quiteclear that Mr Tofilau suffers from significant cognitive impairment. That was apparentfrom the police DVD interview and was confirmed by both health assessors in theirfirst reports.[17] I am now required to give each party an opportunity to be heard and to presentevidence as to whether Mr Tofilau is unfit to stand trial. Both parties have submittedMr Tofilau is unfit to stand trial. Neither requires evidence to be presented and arecontent to rely on the written reports of the health assessors. I record that at theprevious hearing into this matter I called Dr Easden to give evidence and both partieshad the opportunity to ask him questions.[18] At this point I have to make the decision as to whether Mr Tofilau is unfit tostand trial. I have decided he is unfit to stand trial and because Crown and defence areagreed on that finding, I will not go in detail through the health assessors' reports. Iwill say broadly why I have reached the same conclusion as the Crown and defence.[19] There is no doubt, as I have said, that Mr Tofilau suffers from a significantmental impairment. He does not have a significant intellectual disability, however. Iam satisfied that he understands the Court process sufficiently that he would be ableto enter a plea. I am also satisfied that he adequately understands the nature or purposeand possible consequences of the proceedings. I do not say his understanding isperfect, but the requirement is for adequacy. From the various answers he has giventhe health assessors when they have asked him about the situation he finds himself in,I am satisfied he knows he is in jeopardy of being convicted of the charge of attemptedmurder. I am satisfied he understands that attempted murder requires an intention tokill. I am satisfied he understands the consequences of a conviction would becontinued criminal incarceration. However, I am also satisfied on the balance ofprobabilities that Mr Tofilau is unable to communicate adequately with counsel for thepurposes of conducting a defence.[20] It seems Mr Tofilau suffers from a species of dementia and the latest reports ofthe health assessors point to the likelihood of both a disease base and a base ofhistorical injury that might account for the observed cognitive impairment. There arefurther medical assessments ongoing to try to clarify that diagnostic picture but thatdoes not bear upon the inquiry I have to make today.[21] Mr Tofilau is unable to orient himself in time and space. He cannot stick to thepoint. With huge difficulty he can be brought to a point, but his answers are variable.With the assistance of a communication assistant and with patient probing by thosewho know how to do it, there are flashes of understanding and comprehension whichbear on the trial issues. But those flashes are scarce, and it appears to Dr Easden thatMr Tofilau's condition has deteriorated appreciably even in the gap between hisreports.[22] I am satisfied Mr Tofilau could not adequately instruct his counsel. Hecertainly could not adequately be called to give evidence on his own behalf. Inreaching this decision I have had regard to the unfortunate reality that many defendantsin criminal trials have mental impairments. There is no definition of 'mentalimpairment' because the phrase is related directly to the ability of a defendant toconduct a defence or to instruct counsel to do so. The threshold is a high one due tothe requirement that the effect of mental impairment render a defendant unable toparticipate in the proceeding. As I have said, many defendants who have mentalimpairments nevertheless are fit to stand trial. In my view Mr Tofilau's mentalimpairment takes him across the threshold and makes him unfit to stand trial becausehe simply could not interact adequately with counsel or otherwise take part in the trialprocesses.[23] I record a finding that Mr Tofilau is unfit to stand trial.[24] The next stage of this procedure is that I must inquire into Mr Tofilau'sinvolvement in the offence with which he is charged. Again, both the Crown and thedefence are agreed that the evidence against Mr Tofilau is sufficient to establish thathe caused the act that forms the basis of the attempted murder charge. I agree. Therecan be no question of that. There are eye witness reports of the use by Mr Tofilau ofthe machete. He himself told the police of his intention to kill his victim and gavedetail of that. He expressed the view his victim was lucky to survive. There is nochallenge to the admissibility of that evidence.[25] I record my finding that I am satisfied on the balance of probabilities – andindeed beyond – that the evidence against Mr Tofilau is sufficient to establish that hecaused the act that forms the basis of the charge of attempted murder.[26] With those findings made and recorded, I must now deal with what is tobecome of Mr Tofilau. When a person is found unfit to stand trial the Court must orderthat inquiries be made to determine the most suitable method of dealing with theperson under s 24 or s 25 of the Act. For the purposes of those inquiries the Courtmust either make it a condition of a grant of bail that the person go to an approvedplace for the purpose of the inquiries or remand the person to a hospital or a securefacility. The inquiries must be completed as quickly as practicable and in any eventwithin 30 days after the date of the order under which the inquiries are made.[27] Therefore, I now order that inquiries be made to determine the most suitablemethod of dealing with Mr Tofilau under s 24 or s 25 of the Criminal Procedure(Mentally Impaired Persons) Act 2003. For the purposes of those inquiries I remandMr Tofilau further to the Mason Clinic. I note Dr Easden, in his addendum to hisreport, advises a secure inpatient bed at the Mason Clinic remains available for thispurpose. Insofar as that direction requires an order for detention under s 44(1) of theAct, I make the order accordingly.[28] Mr Tofilau will need to be brought back to Court for the disposition hearing.The case will be called again at 9:00 am on 26 September 2019. If disposition reportshave been obtained by that date, then I would expect a memorandum from counseladvising the Court whether agreement is still in existence as to the disposition.________________________________Brewer J