Court considers lifting name suppression for double-killer twice ruled insane

Photo: RNZ

By Sam Sherwood of RNZ

The Court of Appeal is considering whether a man who has twice been found insane after killing two people more than 20 years apart can be named.

RNZ earlier revealed the man, who was made a special patient under the Mental Health Act after his first killing, was recently found not guilty of murder by reason of insanity for a second time after killing someone he believed was possessed.

The revelations of a second killing prompted the chief victims advisor to call for a royal commission of inquiry into forensic mental health facilities.

RNZ is unable to publish details regarding either killings due to an appeal against name suppression. That appeal was heard in the Court of Appeal on Thursday before president Justice French, Justice Campbell and Justice Collins.

The court reserved its decision, which the justices said would likely take "several weeks".

The man and the victim's family earlier lost a bid for name suppression in the High Court. In declining suppression, Justice Karen Grau said while the decision had been "very difficult", public interest must prevail.

"There is rightly a high degree of public interest in learning of the circumstances in which a person who has been released into the community under the supervision of mental health services has gone on to kill again," she said.

The man appealed the ruling to the Court of Appeal. The Crown and RNZ opposed the man's appeal.

Failure to consider tikanga alleged

The man's lawyer Jamie Waugh said the appeal was brought on the ground that the High Court failed to appropriately consider aspects of tikanga that were raised in the victim impact statements.

He submitted that in doing so, the High Court had incorrectly assessed the nature and extent of hardship that would be suffered by the victim's whānau and incorrectly refused name suppression.

Evidence was provided by a tikanga expert who submitted that a suppression order should remain until such a time as the man was to be released.

Waugh argued the court should uphold the appeal and either permanently suppress both the man and victim's names and any identifying details, or order continued interim name suppression until such a time as the man was to be released.

He submitted any legitimate public interest could be met through "careful reporting", despite suppression orders being in place - which he said had already occurred, and referenced several RNZ articles.

From a tikanga perspective publication would be more appropriate if and when he was released, he said.

Waugh asked what was being achieved through publication of the names at this stage.

"What are we actually achieving through publication at this point? We know the risk to this whānau… it seems to me there is very little to be gained via justice through publication and lots to be lost by this whānau."

Tikanga doesn't outweigh open justice - Crown

Speaking in relation to tikanga on behalf of the Crown, Natalie Coates said the expert's evidence confirming publication could cause hardship had already been accepted by Justice Grau. The new evidence did not shift the balance away from open justice, she said.

There were several reasons for this, Coates said the evidence before the High Court did speak to the impact on the whānau which Justice Grau grappled with in ruling against name suppression.

Coates also said there was no evidence that tikanga supported permanent suppression or secrecy.

She said tikanga was "an ingredient in the analysis, but not a controlling one".

"Tikanga doesn't justify a departure from open justice."

Deputy Solicitor-General Madeleine Laracy said the Crown submitted RNZ had shown "great interest" in the case and its audience was national.

She said there was no information reported to link the man's two killings.

"That is where we say the public interest in this is acute," she said.

"The public interest in this case is in understanding the detail of those prior failures and seeing them in the context of what is happening here."

Laracy said there was an inquiry ongoing by Health New Zealand and there would be an inquest. The autonomy of "other fact-finding processes" was important.

She said due to the suppression orders the whānau of the first victim could not be told what had happened, which she argued was "quite a restriction for the court to sanction".

Laracy accepted that linking both cases would result in reporting of details from both homicides which were "brutal and awful".

The Crown said the appeal should be dismissed.

Robert Stewart KC on behalf of RNZ said Justice Grau had considered the hardship for the whānau in her consideration of the victim impact statements.

Stewart KC said permanent suppression would make it "extremely difficult" not only for the media to report on any inquiries, but also for those inquiries to feel they can explore things in a way that the public can understand what they have done and why they have done it.

"We are looking at the wider public interest and wider circumstances of the events, what caused them, and what is going to happen as a result in terms of further inquiries that are obviously going to take place and the concern the judge had was; how are those matters going to be properly reported if there is going to be suppression of the appellant and the victim in this case?"

He said Justice Grau got it right when she said all those levels of hardship did not outweigh the importance and the interests in the presumption of openness, open reporting and people's right to freedom of expression.

The second killing

To be released into the community after being designated a special patient, requires the sign off of the minister of health, the attorney-general and the director of mental health. The man was released more than a decade ago, and later had his status changed to being a patient under the Mental Health Act.

At the time of his second killing he was subject to a community treatment order.

In her ruling, Justice Grau said that in the weeks leading up to the second killing, the man's mental health was "rapidly declining". He was admitted to a mental health facility following an

altercation with a relative.

About a week later he was released. He had issues with a relationship that he was in and was using cannabis.

Court documents reveal the second killing occurred when he stabbed a person to death.

He later told an associate he had killed the victim. Asked why, he said the victim was "possessed".

"I had to do it."

The police later found the victim dead.

When the man was later found by police and told he was under arrest for murder, he said: "Yes, I know."

In ruling the man was insane for a second time, the judge said there was no question that he was responsible for the killing.

Two health assessors' reports had been ordered to address his fitness to stand trial, and whether he had a possible defence of insanity. Both report writers assessed him as being fit to stand trial and as having an available defence of insanity.

Justice Grau said he was "mentally impaired" and suffered from a longstanding diagnosis.

The Crown agreed the only reasonable verdict was that of an "act proven but not criminally responsible on account of insanity".

In her judgment, the judge addressed the victim impact statement. There was "shock, disbelief, and grief" in relation to the victim's death.

The offending was described as a "cruel and heartless act".

"The whānau feels that the mental health system has failed."

The judge said the criminal charge "could not unpick what has happened in the system and what could and should have done, but it is hoped that answers will come, both for the whānau and for the wider community".

The defendant was described as a "caring person when he was well". But, at the time of the killing he was "clearly unwell".

The man's former partner earlier told RNZ there was a "massive" failure by the mental health system, both in protecting him, but also the wider community.

"It failed him, it failed everybody twice."

RNZ earlier obtained a copy of a letter from the man's father to the presiding judge.

The man's father alleged that on the day he killed for a second time, he was supposed to be drug tested.

"He turned up for the appointment but was not tested because the staff member said that he was acting cagey and she didn't want to make him feel like he was being picked on.

"This is a so-called health professional who observed unusual behaviour from a person with severe mental health issues and they didn't do anything about it. She didn't test him and basically allowed him to leave. A few hours later [he killed again]."

The man said his son told him he had to go have a drug test "so he was expecting it, but nothing came of it".

The man's second killing "could and should have been prevented", the father says.

"How can someone who has previously killed another person be able to remain free when the warning signs are right there for all to see?"

Review underway

Chief Victims Advisor Ruth Money earlier told RNZ the case was "my worst fear", adding she felt "physically sick" when she read about the man's second killing.

"It's pretty hard to see how this could be any worse."

Money wanted an "urgent review" for any patient who has had their status changed.

"Clearly something is seriously wrong with how these people have chosen to re-classify their status," she said.

"It's getting to the point where we need a royal commission to find out what's happening in these facilities."

In an earlier statement to RNZ, the director of mental health Dr John Crawshaw said they were limited in what they could say regarding the case as there was ongoing legal action and name suppression in place.

Crawshaw confirmed there were specific processes set out under the Criminal Procedure Act and the Mental Health Act that must be followed when the status of a special patient was reviewed or changed.

"The thresholds for decision making under the act are long standing. These processes are always followed."

When a patient was moved from special patient status they were frequently subject to continued compulsory treatment orders, Crawshaw said.

A Health New Zealand spokesperson said an external review of the care the patient received leading up to their offending was in progress.