R v Taumata

[2023] NZHC 360

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE

CRI-2019-092-8912

[2023] NZHC 360

THE KING

v

RANAPERA TAUMATA

Hearing:

21 July 2022 and 3 February 2023

Counsel:

S Manning for Crown

R Mansfield KC for Defendant

Judgment:

1 March 2023

JUDGMENT OF ELLIS J

[1]                 Mr Taumata is charged with  murdering  his  partner, Taylor-Jade  Hira,  on 15 August 2019. He also faces two lesser charges of assaulting Ms Hira with intent to injure her on that day. His trial has now been adjourned several times. Because the case has previously come close to trial, the Crown’s evidence is in a relatively advanced state of readiness and the likely issues at trial are clear.

[2]                 Through no fault of anyone’s, however, an issue about Mr Taumata’s fitness to stand trial has only quite recently been raised. The process under the Criminal Procedure (Mentally Impaired Persons) Act 2003 (CPMIP Act) was begun.

[3]                 Reports from health assessors, and then a joint report, were ordered and received. On 22 July 2022 there was a fitness hearing in accordance with s 8A of the

R v TAUMATA [2023] NZHC 360 [1 March 2023]

CPMIP Act. The health assessors attended and were available for questioning. The (interim) outcome was recorded by me in a minute the next day. I said:

[2]  As a result of that hearing it seems that-provided he continues to take his anti-psychotic medication-Mr Taumata’s fitness is likely to turn on whether he can receive appropriate communication assistance before and during his trial. As  stated  in  the  joint  report  of  the  three  health  assessors  dated  27 May 2022:

Although Mr Taumata’s cognitive deficits will not, in our opinion, prevent him from entering a plea, understanding the nature and purpose of proceedings and communicating with counsel for conducting a defence, his ability to take meaningfully part in trial proceedings will be dependent on the Court’s willingness to tolerate an extraordinary accommodation of Mr Taumata’s needs in this regard.

[3]  For that reason it is agreed that it would be helpful for the Court to receive a report from a Communication Assistant detailing what help Mr Taumata requires and whether that help can be provided in a jury trial setting, before determining the question of fitness. I therefore adjourned the fitness hearing so that could occur.

[4]       An interim communication assistance report was  received  in  late  November 2022 and the hearing resumed on 3 February 2023. One of the report’s authors attended the hearing and answered questions.

[5]       As a result of that hearing, I have formed the view that, provided appropriate communication assistance is carefully planned and provided, Mr Taumata is fit to stand trial. I give my reasons below.

Relevant law

[6]       Section 4 of the CPMIP Act provides that a defendant who is “unfit to stand trial”:

(a)means a defendant who is unable, due to mental impairment, to conduct a defence or to instruct counsel to do so; and

(b)includes a defendant who, due to mental impairment, is unable—

(i)to plead:

(ii)to adequately understand the nature or purpose or possible consequences of the proceedings:

(iii)to communicate adequately with counsel for the purposes of conducting a defence.

[7]       The Court of Appeal very recently revisited the approach to the fitness question in R v Hanara.1 The Court restated that the three core principles underlying the fitness inquiry are:2

(a)protecting the defendant’s right to a fair trial and to present a defence;

(b)promoting the integrity and legitimacy of the justice system by only holding defendants accountable if they understand why they are being prosecuted; and

(c)enhancing society’s interest in having a reliable criminal justice system by not trying those who, through lack of fitness, are unable to advance an available defence.

[8]       The Court confirmed that the “effective participation” test is integral to assessing fitness to stand trial and that this test aligns with the minimum standards of criminal procedure affirmed in s 25 of the New Zealand Bill of Rights Act.3 The need for rational understanding was also confirmed: a defendant must have the mental capacity to “carry out essential trial functions unaffected by irrational or delusional thoughts”.4 That said, rational capacity is not to be conflated with an assessment of whether defendants are able to make decisions that are in their best interests; that does not form part of the relevant evaluation.5

[9]       The Court confirmed that the Presser criteria remain useful when assessing fitness to stand trial.6 Those criteria were articulated in that case as follows:7

[The accused] needs … to be able to understand what it is that he is charged with. He needs to be able to plead to the charge and to exercise his right of challenge. He needs to understand generally the nature of the proceeding,

1      R v Hanara [2022] NZCA 608.

2      R v Hanara, above n 1, at [107]; citing Nonu v R [2017] NZCA 170 at [26].

3      R v Hanara, above n 1, at [114]-[115].

4 At [116].

5 At [116].

6 At [118].

7      R v Presser [1958] VR 45 (SC) at 48.

namely, that it is an inquiry as to whether he did what he is charged with. He needs to be able to follow the course of the proceedings so as to understand what is going on in court in a general sense, though he need not, of course, understand the purpose of all the various court formalities. He needs to be able to understand … the substantial effect of any evidence that may be given against him; and he needs to be able to make his defence or answer to the charge. Where he has counsel he needs to be able to do this through his counsel by giving any necessary instructions and by letting his counsel know what his version of the facts is and, if necessary, telling the court what it is. He need not, of course, be conversant with court procedure and he need not have the mental capacity to make an able defence; but he must … have sufficient capacity to be able to decide what defence he will rely upon and to make his defence and his version of the facts known to the court and to his counsel, if any.

[10]     The Court of Appeal also held that an assessment of whether a defendant is fit to stand trial may involve considerations beyond a medical assessment of a mental impairment. Such considerations are contextual and may include the complexity of the trial, whether the defendant will need to give evidence and whether any communication assistance will be available.8

Mr Taumata’s trial

[11]     As just noted, the Court in Hanara made it clear that fitness may be context or case specific. In other words, a defendant may be fit to stand trial where the matters at issue are relatively simple, but not so where they are more complex. It is therefore necessary to begin by saying something about the nature of the Crown case against Mr Taumata and the likely issues at his trial. As noted earlier, the history of these proceedings and the stage they are at mean that these can be assessed relatively readily.

The Crown case

[12]     The Crown alleges that Mr Taumata intentionally inflicted injuries on Ms Hira that he knew were likely to cause death and was reckless as to whether death ensued.

[13]     On the night the fatal injuries were inflicted on Ms  Hira  (the  night  of  14/15 August 2019) she was with Mr Taumata at his family home in Hastings. They had been together for around 18 months. The Crown says the relationship had deteriorated and Mr Taumata had become controlling and violent; leave has been

8      R v Hanara, above n 1, at [120].

granted to the Crown to lead evidence from Ms Hira’s friends and family members and friends about this.9

[14]     The assaults said to have caused Ms Hira’s death largely occurred when she was alone with Mr Taumata in a sleep-out at the back of the property. The property had CCTV cameras at the front and back of the house. CCTV footage taken from the cameras provides a clear timeline of events and shows some of the assaults. But the principal assaults occurred inside the sleepout and are therefore not shown on the CCTV.

[15]     At around 12.30 am Mr Taumata and Ms Hira left the property to drive to McDonalds, returning around 20 minutes later. Mr Taumata can apparently be seen kicking out at Ms Hira as she is standing beside the car. As they are walking through the gate, he kicks her, causing her to fall to the ground and spill the food she was carrying. Mr Taumata then kicks her again, while she is on the ground.

[16]     The pair then go into the sleepout. At around 12.55 am, Mr Taumata pulls  Ms Hira out of the sleep-out by her hair and throws her to the ground. She waits outside and is let back in at around 12.57 am.

[17]     At 1.14 am, the footage shows Mr Taumata again dragging Ms Hira out of the sleepout by her hair and tossing her onto the ground. She is unconscious and does not move. Mr Taumata can then be seen moving in and out of the sleep-out, throwing items of clothing and bedding around outside. At 1.16 am he appears to inflict a further assault on Ms Hira as she lies unconscious on the ground. He then drags her by her hair back into the sleepout.

[18]     At 1.24 am Mr Taumata is seen leaving the sleepout and going into the house. The evidence will be that he then woke up members of his family, telling them something was wrong. They then go into the sleepout where they find Ms Hira, unconscious and take her to Hawkes Bay hospital.

9      The proposed evidence is a mix of Ms Hira’s (hearsay) statements to them, and their own observations of the relationship.

[19]     Mr Taumata left the hospital quickly after placing Ms Hira on a bed in the emergency department. He returned to his house briefly before again leaving. He was located in Auckland on 23 August 2019 and arrested and charged.

[20]     On her arrival at hospital Ms Hira had severe traumatic brain injury; she never regained consciousness. She was transferred to Wellington Hospital, where she died on 18 August, after her life support was turned off. The trauma to her head caused several different brain injuries which, in combination, were fatal. The autopsy confirmed the presence of a subdural haematoma and associated oedema of the brain. She had also suffered significant blunt force trauma to multiple areas of [her] body including the head, chest, back and limbs. She had newly fractured ribs and vertebrae fractures. There were multiple bruises of different colours all over her body.

The main issue at trial

[21]     As I understand it, there will be no dispute that Mr Taumata inflicted the injuries that led to Ms Hira’s death. The defence will therefore  focus  on whether  Mr Taumata had the necessary murderous (reckless) intent. As is often the case, the Crown will invite the jury to infer that intent largely from the nature and extent of Ms Hira’s injuries and the duration of the assaults that night. No doubt what can be seen occurring on the CCTV footage will also be in the relevant mix.

[22]     Mr Taumata has, on several occasions, confirmed his position that he is not guilty of murder because he did not intend to kill Ms Hira. He has told Police and others that this is evidenced by the fact that he took her to the hospital.

Witnesses

[23]     Twenty-one witnesses are to be called by the Crown. Only the first six are ‘civilian’ witnesses. Witnesses seven, eight, fifteen to seventeen are medical. The ESR witnesses are eighteen and nineteen. The remainder are Police officers. Most of the evidence is well settled and can be expected to be given in the terms of the formal statements filed (and edited).

The s 38 reports

[24]     Reports ordered under s 38 of the CPMIP Act were initially received from  Dr Jeremy Skipworth and Dr Ian Goodwin. They were uncertain whether Mr Taumata suffered from any form of mental impairment and recommended he be assessed by a clinical psychologist, and that he be transferred to a secure facility in-patient setting for assessment purposes.

[25]     The Court accordingly directed that a further s 38 report be prepared by a clinical psychologist and that this report be made available to the health assessors so they could update their reports in light of its content. Mr Jim van Rensburg was appointed to prepare that report.

[26]     Mr van Rensburg conducted psychometric testing on Mr Taumata. The results of that testing caused him to conclude Mr Taumata had cognitive deficits:

17.Mr Taumata obtained a full-scale IQ score of 67 with a 95% confidence interval between 64 and 72. The score places him in the lowest one percent (percentile rank) of the population and essentially on the cusp between the borderline and extremely low intellectual categories.

18.He had a percentile ranking of 2 for the composite scores of the Verbal Comprehension subtests, and a similar ranking for the composite scores of the Processing Speed subtests. He performed better on the Perceptual Reasoning and Working Memory subscales, where he had a percentile ranking of 6 on both.

19.These results would indicate that he is on the cusp of being considered as suffering from an Intellectual Disability, where a cut-off score of 70 is one of the criteria laid down in Section7(3) of the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003, although the 95% confidence level (64-72) extends beyond the 70-mark. To determine whether he meets the other criteria for intellectual disability stated in Section 7, the enquiry had to be broadened.

[27]After conducting that broader enquiry, Mr van Rensburg concluded:

36. From the above it is in my view apparent that Mr Taumata likely meets the criteria for Intellectual Disability as meant by the IDCCR Act, 2003, although that should be confirmed by an IDCCR health assessor.

Joint health assessors’ report

[28]     Dr Skipworth  and  Dr  Goodwin  then  updated  their  reports  in  light  of  Mr van Rensburg’s findings. There remained a variance between them as to the nature and extent of any mental impairment, and as to whether Mr Taumata was likely to be fit to stand trial.

[29]     The Court then directed that the three report writers confer and prepare a joint report. In that report (dated 27 May 2022) they recorded their agreement that:

3.1.Any concern about Mr Taumata’s fitness to stand trial is limited to cognitive deficits and not symptoms of mental illness;

3.2.In terms of Mr Taumata’s cognitive deficits, the findings of the psychometric testing as reported by Mr Van Rensburg were noted and accepted;

3.3.The psychometric findings and related enquiries about Mr Taumata’s developmental years, provided clinical evidence indicating a cognitive impairment, primarily in the area of slow information processing in real time, and particularly in the context of significant verbal content;

3.4.The cognitive impairment referred to above,  will  not  …  render  Mr Taumata incapable of instructing his counsel for the purpose of submitting a plea and potentially mounting a defence;

3.5.However, should a plea be entered that results in trial proceedings, Mr Taumata will require extensive assistance to cope with the rigour and pace of evidence and other court proceedings;

3.6.Given his cognitive deficits, Mr Taumata will benefit from having a communication assistant to help him with processing information;

3.7.Apart from his slow processing speed, Mr Taumata will have problems in  terms  of  maintaining  concentration  beyond  30  to  40 minutes of proceedings. He is also likely to become fatigued after a similar period of listening to proceedings and may need longer breaks. He will therefore need frequent and extensive breaks as and when indicated by him, or noticed by his counsel, the communication assistant or the presiding judge;

3.8 Although Mr Taumata’s cognitive deficits will not, in our opinion, prevent him from entering a plea, understanding the nature and purpose of proceedings and communicating with counsel for conducting a defence, his ability to take meaningfully part in trial proceedings will be dependent on the Court’s willingness to tolerate an extraordinary accommodation of Mr Taumata’s needs in this regard.

[30]     As I have said, the three health assessors attended Court and were cross-examined in July 2022, with the outcome I recorded in the minute set out earlier in this judgment.

Interim Communication Assistance Report

[31]     The Communication Assistance report (dated 24 November 2022) was prepared by two undoubted experts in that field, Ms Wright and Ms Kedge. It is relevant that although they did not (at that stage) have access to the s 38 reports when preparing their report, their findings are generally consistent with the views expressed by the health assessors. The report writers identified that Mr Taumata was likely to require assistance in the following areas:

(a)hearing (in the auditory sense);

(b)attention and concentration;

(c)listening and understanding;

(d)language and communication;

(e)reading; and

(f)mental health.

[32]     The writers made a number of quite detailed suggestions for assistance in respect of each of these areas which I will refer to later in this judgment where necessary. Perhaps the most notable, however, is the suggestion that Mr Taumata be permitted to take part in his trial from a separate room in the Court building by video link. He would be able to see and hear what is going on in the courtroom but would not himself be seen (except in the event that he chose to give evidence).

[33]     I observe that although this practice is usually reserved for defendants who are disruptive, there seems no reason why it could not be adapted for Mr Taumata’s

purposes, subject to an appropriate explanation being given to the jury.10 I did not understand counsel to disagree with that.

Mental impairment?

[34]     As noted earlier, there  was something of a difference of opinion between    Dr Skipworth and Dr Goodwin as to whether Mr Taumata suffers from a “mental impairment” in terms of the s 4 definition.11 They nonetheless have both accepted  Mr van Rensburg’s findings of cognitive impairment.

[35]     The term “mental impairment” is deliberately not defined in the CPMIP Act. It is undoubtedly different (and potentially broader) than the clinical term “mental disorder” as defined in s 2 of the Mental Health (Compulsory Assessment and Treatment) Act 2003. It has been accepted as including intellectual disability. More significantly, for present purposes, the Court of Appeal has endorsed earlier analyses by Fogarty and Dobson JJ in this Court that there is, in the s 4 definition of a defendant who is “unfit to stand trial”, a (rather circular) link between “mental impairment” and decisional competence in the context of a criminal trial.12 In other words, if a defendant has a cognitive impairment that significantly impedes the necessary competence then it might reasonably be concluded that they are suffering from a relevant “mental impairment”.

[36]     In the present case there can  be  no  doubt—and  it  is  not  disputed—that Mr Taumata does suffer from significant cognitive deficits and difficulties. These were identified by Mr van Rensburg and have really been confirmed by the CA report. Whether or not they meet the statutory definition of “intellectual disability” does not

10 Dr Goodwin’s additional evidence also emphasised the desirability of a quiet separate space. He was of the view that Mr Taumata would struggle to filter out the distractions in the courtroom and agreed that the presence of a communication assistant in the room would be helpful for him in terms of being able to repeat and explain things to him.

11  In his updated report, Dr Skipworth  expressed the view that the Court was “likely to accept that  Mr Taumata’s cognitive impairments, which meet clinical criteria for intellectual disability, constitute a mental impairment” whereas in Dr Goodwin’s updated report he says whether or not Mr Taumata is suffering from a “mental disorder” depends on whether his psychosis is being effectively treated (as it is presently) and that, in his opinion, Mr Taumata did not clinically present as intellectually disabled.

12 SR v R [2011] NZCA 409, [2011] 3 NZLR 638 (CA) at [157] – [160].

matter.   The crucial question is whether they are such that he cannot effectively participate in his trial. If they are, then they will qualify as a mental impairment.

[37]So, it is to the question of effective participation I now turn.

Could Mr Taumata effectively participate in his trial?

[38]     I propose to make the necessary assessment by reference under the following headings:13

(a)entry of plea and understanding of court processes;

(b)processing and responding to the Crown case before and at trial;

(c)making a decision whether to give evidence;

(d)the ability to give evidence and be cross-examined if necessary;

(e)the ability to communicate adequately with counsel for the purposes of conducting a defence.

[39]     In all cases I will take into account (where relevant) the potential assistance Mr Taumata would receive from a communication assistant (CA).

Plea and processes

[40]     Dr Skipworth said that while Mr Taumata’s language was simple when discussing his position in relation to the charges, it could safely be concluded from Mr Taumata’s consistent expression of his position that it was reflective of rational thought and decision-making. Dr Skipworth also agreed Mr Taumata could adequately communicate his position on the issues and charges (to his  lawyer). He described  Mr Taumata’s decision-making around plea as informed and competent.

13     These headings are based on those adopted by Mr Blaschke in his submissions and, in my view, fairly reflect what the Court in Hanara saw as meant by effective participation in a trial.

[41]     Dr Goodwin observed that Mr Taumata was able spontaneously to name the charges he was facing and demonstrated a good awareness of the potential pleas available to him, and their potential consequences. He recorded that Mr Taumata was able spontaneously to enter into some discussion around potential plea “bargains” and a potential lessening of charges. Mr Taumata has also evidenced an understanding of the core processes involved in a criminal trial and the roles of the various participants.

[42]     Mr van Rensberg agreed a plea decision by Mr Taumata “could be managed in a controlled process with a communications assistant”.

[43]     I am satisfied that Mr Taumata is (and has previously been) able to enter an informed plea to the charges he faces and has an adequate understanding of the relevant processes.

Processing and responding to the Crown case before and during trial

[44]     The advanced state of trial preparation and the relative simplicity of the key matters in issue are, in my view, advantageous (in the sense of favouring fitness/competence) in this context. The limited number of witnesses—and in particular witnesses of fact—is similarly helpful.

[45]     Mr van Rensburg noted that Mr Taumata’s ability to process visual material is greater than his ability to process purely verbal material. In that respect the centrality of the CCTV evidence to the Crown case has already been noted and is also helpful. Mr van Rensburg specifically agreed Mr Taumata would be able to understand and process that evidence.

[46]      In terms of processing and understanding written and verbal material it seems plain that a CA can be of significant help to Mr Taumata both before and during trial.14 Ways of presenting such material to Mr Taumata to enhance his ability to process, interpret and assess it have been identified by the CAs and can be implemented.

14 For example, Dr Skipworth was of the view that with “considerable accommodation” and a  “careful process” on a basic level, Mr Taumata could “achieve the necessary understanding of the relevant evidence”.

Provided this assistance is available, regular breaks are taken15 and Mr Taumata is able to observe and listen to the trial from a relatively distraction-free and stress-free environment (namely a separate room) I am satisfied that Mr Taumata will be able to focus, follow the evidence and participate effectively in his trial.

Can Mr Taumata make a rational decision about giving evidence?

[47]     It should perhaps be observed at the outset that the likelihood of Mr Taumata giving evidence seems low. That is because he has consistently maintained he has little to know recall of the relevant events, apart from taking Ms Hira to hospital. Methamphetamine use on the evening in question appears to be a factor in this.

[48]     That said, however, Mr Blaschke did not go so far as to suggest that this was a case (contemplated as possible in Hanara) where it could definitively be said that  Mr Taumata would not (or did not need to) give evidence. It therefore remains necessary to consider the question of his capacity to make the necessary election.

[49]     Mr van Rensburg noted that Mr Taumata was firm he did not wish to give evidence and said that this position was, itself, the result of rational decision making, Mr van Rensburg nonetheless also said that Mr Taumata had told him that he would “sit there and listen to what they say”. When asked whether Mr Taumata might rigidly stick to his original position in the face of contrary advice, Mr van Rensburg opined that, on receipt of advice he trusted, he would be capable of taking it to change his position.

[50]     The remainder of the expert evidence endorsed Mr van Rensburg’s view. It was to the effect that Mr Taumata is capable of rationally deciding whether to give evidence or not, even though the actual giving of evidence would be difficult for him.

[51]I am therefore satisfied that he could make an informed election.

15     Regular breaks will be useful both as a way of avoiding Mr Taumata becoming fatigued, and overloaded but also as opportunities for the CA to explain or simplify matters for him.

Could Mr Taumata give evidence and be cross-examined fairly?

[52]     In the event that Mr Taumata did elect to give evidence, there can be little doubt that he would need help to do so. Dr Goodwin suggested that his language skills would be sufficient for him to communicate what he wanted to say, but in basic terms. While he agreed cross-examination would be challenging, with certain accommodations and adjustments, he thought Mr Taumata would be able to cope. Mr van Rensburg agreed there would just be challenges but that these could be met.

[53]     As to the necessary accommodations and adjustments, the communication assistance report made two specific recommendations:

If Mr Taumata were to give evidence, questions would need to be short, and constructed from simple language (both in terms of grammar and vocabulary), and be specific to ensure he is able to comprehend and respond. A set of specific recommendations for managing the communication demands of cross-examination would be prepared by the CAs, should this situation arise.

The CA may be able to assist Counsel with obtaining a brief of evidence and legal instructions but this may depend on the complexity of the evidence and the extent to which he needs to be able to convey information with specificity and detail.

[54]     The preparation of questions in advance with a CA’s assistance has now become a relatively routine practice with complainants in sexual violence trials and so should not present undue difficulty here.

[55]     As well, the identified risk of Mr Taumata becoming frustrated and withdrawn while giving his evidence is likely to be mitigated by enabling him to do so from a separate room, free of stress and distractions and with the CA present.16 The value of regular breaks has already been noted and would also assist in safeguarding his concentration and energy.

[56]     As matters presently stand, I am satisfied that—provided the recommended accommodations are made—Mr Taumata could, if necessary, give evidence and be fairly cross-examined.

16     The view of Dr Skipworth, for example, was that if such accommodations could be made by the Court, then “they would substantially be able to mitigate the identified cognitive impairments”.

Conclusion: Mr Taumata is not unfit to stand trial

[57]     In my view all the communication assistance suggestions seem achievable and can be directed and facilitated by the Court. As matters stand, I am satisfied that if they are implemented, Mr Taumata will be able to participate effectively in his trial. The extent to which the proposed communication assistance does in fact provide the level of assistance required can of course be monitored before and during the trial and (if necessary) the question of fitness can be revisited by the trial judge.

Next steps

[58]     As noted earlier, Mr Taumata’s trial is scheduled to begin in June 2023. There will likely need to be a ground rules hearing with the trial Judge. The file should be referred to her and I direct counsel to liaise with the Registry about a date for that.

Rebecca Ellis J

Solicitors:

Crown Solicitor, Napier