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Kaisau v State [2015] FJHC 712; HAM071.2014S and 101.2015S (2 October 2015)

IN THE HIGH COURT OF FIJI
AT SUVA
MISCELLANEOUS JURISDICTION
CRIMINAL MISCELLANEOUS CASE NO. HAM 071 OF 2014S AND 101 OF 2015S

BETWEEN

APETE VAKANANUMI KAISAU
APPLICANT

AND

THE STATE
RESPONDENT

AND

ATTORNEY GENERAL OF FIJI
AMICUS CURIAE

Counsels: Mr. S. Sharma and Ms. T. Kean for Applicant
Mr. M. Delaney for the State
Mr. N. Chand, Ms. M. Faktaufon, Ms. R. Sami and Ms. S. Taukei for Attorney General

Hearings: 21, 22 and 29 September, 2015
Ruling: 2 October, 2015

RULING ON AN APPLICATION FOR A DISCHARGE AND/OR LEAVE UNDER SECTION 108(4) OF THE CRIMINAL PROCEDURE DECREE 2009

1. This ruling will deal with two related applications in Miscellaneous Case No. HAM 071 of 2014S and Miscellaneous Case No. HAM 101 of 2015S, involving the same applicant. In HAM 071 of 2014S, the applicant is asking the court to discharge the Presidential Order dated 5 November 2003, issued pursuant to Section 150 of the Criminal Procedure Code (Chapter 21), confining the applicant to St Giles Hospital, until His Excellency makes further orders in the matter. In HAM 101 of 2015S, the applicant is asking the court to grant him leave from St Giles Hospital, in terms that are just and equitable, having regard to the surrounding circumstances. It would appear that in both applications, the applicant relied on Section 123(1) of the Mental Health Decree 2010, and the inherent jurisdiction of the High Court of Fiji as the authority for their intended relief. However, before we consider the jurisdictional issue concerning the applications, a brief history of the case would be appropriate.
   
2. On 4 August 2003, in a criminal trial before Her Ladyship Madam Justice N. Shameem at the Suva High Court of Fiji, the following information was put to the applicant, in the presence of his counsel:
   

FIRST COUNT
Statement of Offence

MURDER Contrary to Section 199 and 200 of the Penal Code Act, Cap 17.

Particulars of Offence

APETE BAULEKA VAKANANUMI KAISAU, on the 1st day of July, 2001 at Suva in the Central Division, murdered GREGORY GENE SCRIVENER.

SECOND COUNT
Statement of Offence

MURDER Contrary to Section 199 and 200 of the Penal Code Act, Cap. 17.

Particulars of Offence

APETE BAULEKA VAKANANUMI KAISAU, on the 1st day of July, 2001 at Suva in the Central Division, murdered JOHN MAURICE SWIFTE GRANVILLE SCOTT.

3. The applicant (accused) pleaded not guilty to the two counts. Most of the material facts were not disputed by the parties, and were submitted as "Agreed Facts" pursuant to the then Section 192A of the Criminal Procedure Code (Chapter 21). In particular, the "actus rea" of murder was not disputed. It was agreed that the applicant (accused) repeatedly struck the two victims with a caneknife, at the material time, causing massive injuries to their head, neck and body, leading to their deaths. Doctor S. Narayan (PW1), the then Superintendent of St Giles Hospital, was the only Prosecution witness.
   
4. The court found a case to answer against the accused. The options open to him were read to him. He chose to remain silent. He called Professor Paul E. Mullen (DW1) as his only witness. Mr. Mullen was the Professor of Forensic Psychiatry at Monash University. The parties later made their closing submissions. The court delivered its summing up on 6 August 2003. The three assessors retired to deliberate. They later returned with a "not guilty by reason of insanity" verdict after a one hour 5 minutes deliberation.
   
5. Her Ladyship Madam Justice Shameem then delivered the following judgment:
   

"...The assessors have given their unanimous opinions that the accused person is not guilty by reason of insanity in respect of both counts on the Information. Their opinions are entirely consistent with the compelling evidence of the two psychiatrists in this case and I have no hesitation in agreeing with them.

This was a case which gripped the attention not only of the entire nation, but of the international community. Both deceased men were well-known in the Fiji community and Mr. John Maurice Scott was particularly well-known and respected as Executive Director of the Fiji Red Cross. The savagery of the attack on them which led to their deaths, caused great shock to the community. With this trial, it is now apparent that the accused killed both men whilst suffering from a mental illness called schizophrenia and that the killings were motivated by delusions that he was acting on the instructions of God.

I accept that the accused, who undoubtedly caused the deaths of John Maurice Scott and Gregory Gene Scrivener, did so whilst insane. I therefore order, pursuant to Section 150 of the Criminal Procedure Code that Apete Kaisau be held in the custody of the St Giles Hospital until such time as His Excellency the President orders his confinement in a place of safe custody. A report of this case and its findings will be sent to His Excellency forthwith together with a copy of my summing up and judgment..."

6. On 5 November 2003, His Excellency the President of the Republic of Fiji, issued the following Committal Order:
   

THE REPUBLIC OF THE FIJI ISLANDS
COMMITTAL ORDER
(Section 150 CPC)

To the Presiding Judge, Fiji High Court, and to whom this present shall come.

WHEREAS:

1. Mr. Apete Bauleka Vakananumi Kaisau is charged before the High Court with the following offence:
   

: Murder of Gregory Gene Scrivener

: Murder of John Maurice Scott

2. A trial was conducted in the Suva High Court from the 4 to 6 of August, 2003 and I have been advised that the High Court found Apete Bauleka Vakananumi Kaisau Not Guilty of Murder by reason of Insanity: and
   
3. I have been further advised that for the purpose of his care or treatment and for the protection of society, it is necessary to confine him to a mental hospital.
   

These are to command you in my name and in the exercise of the power vested in me under Section 150 of the Criminal Procedure Code, Laws of Fiji to issue a warrant to confine the said Apete Bauleka Vakananumi Kaisau to St Giles Hospital until I make further order in this matter.

Dated 5th day of November, 2003.

[Josefa Iloilovatu Uluivuda]

PRESIDENT

REPUBLIC OF THE FIJI ISLANDS

7. The applicant had been held in the St Giles Hospital from 5 November 2003 to the present day, as a result of the above authority. So, in a sense, he had been in custody at St Giles Hospital for approximately 11 years 10 months and 26 days. He was cared for and under the supervision of the Medical Superintendent of the St Giles Hospital under the provisions of the Mental Treatment Act (Chapter 113). Five months after the above Presidential Committal Order, the applicant, as a result of his father's application, was granted 4 days outside leave by the Minister of Health on 1 April 2004. He had been granted numerous leave since then. Those leaves were purportedly granted on the authority of the Minister of Health, pursuant to Section 36(3) of the Mental Treatment Act (Chapter 113).
   
8. The Mental Health Decree 2010 came into force on 1 July 2011. By virtue of Section 121(1) of the Decree, the Mental Treatment Act (chapter 113) was repealed. The Mental Health Decree 2010 now governs the law on how to approach mental health issues in this country. It was against those background that the present applications were made.
   
9. In Miscellaneous Case No. HAM 71 of 2014S, the applicant applies for the following orders:
   

"...1. The Committal Order made by His Excellency the President on 5th day of November, 2003 confining the Applicant at the St Giles Hospital be discharged;

2. Any other orders the Honourable Court deems just in the circumstances of this application..."

10. In Miscellaneous Case No. HAM 101 of 2015S, the applicant applies for the following orders:
    

"...1. THAT the Applicant be granted temporary leave of absence and be released from St Giles Hospital into the care of his father Mr. Isireli Kaisau;

2. THAT the Applicant be allowed leave of absence every second week of the month and on public holidays for the remainder of the year or any other date assigned by the Medical Superintendant.

3. THAT the Applicant be picked and dropped at St Giles Hospital by his father Mr. Isireli Kaisau or some other family member.

4. THAT the Applicant be ordered to reside at Lot 2 Waitaqairua Settlement, Colo-i-Suva, during his leave of absence.

5. THAT the Court be at liberty to impose any further conditions which the High Court deems just and equitable in the circumstances of the Applicant..."

11. Affidavits in support for the above applications were tendered by the applicant himself, his father and Doctor Peni Biukoto, as Medical Superintendent of St. Giles Hospital. The original trial record in Suva High Court Criminal Case No. HAC 018 of 2002S were also relied upon. All the parties submitted very helpful written submissions. I also considered the parties' verbal submissions. The applicant's St. Giles Hospital records were also relied upon. I have read and carefully considered the above.
    
12. The first question is: Does the court have jurisdiction to entertain these applications? According to the applicant and the Director of Public Prosecution, the court has jurisdiction to hear this application by virtue of Section 123(1) and (2) of the Mental Health Decree 2010, which reads as follows:
    

"...123 – (1) Any person admitted to the psychiatric hospital on a Presidential Order under the Mental Treatment Act (Cap. 113) shall seek a review to the court.

(2) Schedule 3 has effect..."

Schedule 3 of the Mental Health Decree 2010 reads as follows:

Existing Presidential Orders

"...Those patients who have been admitted to the Mental Health Hospital under a Presidential Order can have the Order discharged by applying to the High Court..."

13. At this point, we must pause and note that the current Presidential Committal Order dated 5 November 2003 was issued pursuant to Section 150 of the Criminal Procedure Code (Chapter 21). The Criminal Procedure Code had been repealed and replaced by the Criminal Procedure Decree 2009, and the Decree came into force on 1 February 2010. Section 105 of the Criminal Procedure Decree 2009 replaced Section 150 of the Criminal Procedure Code (Chapter 21). The two sections were somewhat similar, but for the Decree requiring compliance with current Mental Health laws.
    
14. Section 122 of the Mental Health Decree 2010 amended Section 105 of the Criminal Procedure Decree 2009 from 1 July 2011, when the Mental Health Decree came into force. The amendment basically gave the High Court the committal powers of His Excellency the President, including His Excellency's review powers, as previously found in Section 150 of the repealed Criminal Procedure Code (Chapter 21) and the pre – 1 July 2011 Section 105 of the Criminal Procedure Decree 2009.
    
15. The new Section 105 of the Criminal Procedure Decree 2009 reads as follows:
    

"...105 –(1) The court shall make a special finding that an accused person is not guilty of an offence by reason of insanity if

(a) any act or omission is charged against any person as an offence; and

(b) it is given in evidence on the trial of the person for that offence that he or she was insane so as not to be responsible for the actions at the time when the act was done or the omission was made, and

(c) it appears to the court that the accused person did the act or made the omission charged but was insane at the time when it was done or made.

(2) When a special finding is made under sub section (1) the court shall order that the accused is –

(a) to be confined in a mental hospital, prison, a declared mental health facility or other suitable place for safe custody; and

(b) to be dealt with in accordance with any law dealing with mental health..."

16. The power to review a committal order issued by the High Court under Section 105 of the Criminal Procedure Decree 2009, is somewhat "hidden" in Sections 108(3) and (4) of the Decree, which reads as follows:
    

"...108 – (3) A person ordered to be detained [under sections 104 or 105] during the [court's] pleasure shall be liable to be detained in such place and under such conditions as the [court] may, from time to time, by order direct, and whilst so detained shall be deemed to be in lawful custody.

(4) The [court] may, at any time of [its] own motion, or after receiving a report from any person or persons empowered under any applicable law, order that a person detained as provided in this section be discharged or otherwise dealt with –

(a) subject to such conditions as to the person remaining under supervision in any place or by any person; and

(b) such other conditions for ensuring the welfare of the said person and the public –

as the [court] shall think fit..."

17. Note that when the High Court is exercising its committal powers under Section 105 of the Criminal Procedure Decree 2009, and its review powers under Section 108(4) of the Decree, it must take note of and comply with Section 109(1) and (2) of the Criminal Procedure Decree 2009, which reads as follows:
    

Application of mental health laws

"...109 – (1) Any power exercisable under this Part and any procedure provided for under this Part shall be exercisable in accordance with the provisions of any law dealing with mental health.

(2) A law dealing with mental health may make additional provision in relation to the powers of courts when dealing with persons found to be of unsound mind, and for the procedures to deal with such persons..."

18. Reading the above Sections together, I would answer the question posed in paragraph 12 hereof as follows. Yes, the High Court has jurisdiction to hear the present applications, as mandated by Section 123(1) and (2) of the Mental Health Decree 2010, and the amendments to Section 105(1) and (2), and 108(3) and (4) of the Criminal Procedure Decree 2009. As far as the inherent powers of the High Court in this matter, I will leave that for later cases to decide.
    
19. What now? Should the High Court discharge the Presidential Committal Order dated 5 November 2003, confining the applicant to St Giles Hospital, at his pleasure? To answer this question, it would appear prudent to understand the difference between what is meant when one is found not guilty of murder and when one is given the special verdict of not guilty of murder by reason of insanity. Murder, as a crime, is the intentional killing of a person by another person. The "actus rea" of the offence is "the act of killing a person" (physical element). The "mens rea" of the offence is the "intention to kill" (mental element). If you bring the facts of Mr. Kaisau's case to the above definition, he repeatedly struck the two victims with a cane knife, causing serious head, neck and body injuries, which led to their deaths. This was the "actus rea" of the murder charge, which was not disputed by Mr. Kaisau. In other words, Mr. Kaisau admitted he killed the two victims by striking them with a cane knife. On the mental element of the offence of murder, he was found to be insane at the material time, thus the special verdict of not guilty by reason of insanity was entered for him. This result is vastly different from a not guilty verdict that arose out of a finding that: (1) he did not strike the two victims to death with a cane knife, and (2) he had no intention of killing the two victims. Such not guilty verdict would mean he did not kill the two victims. He did not strike them to death with a cane knife. Such not guilty verdict would mean he did not actually commit the crime of murder, and thereby is not guilty of the same. Not guilty by reason of insanity is a "special" verdict. He admitted killing the two victims with a cane knife. But he argued he must be excused because he was insane at the time. Therein lies the difference between the two verdicts.
    
20. In Queen v Akshay Anand Chand [2012] NZHC 2745, High Court of New Zealand, Auckland, Justice Winkelmann made the following comments in a murder case:
    

"...The intentional killing of another is charged as murder. Mr. Chand was charged with murder in respect of the killing of Christie. However, it is a defence to the charge of murder that the person was legally insane, as defined in section 23 of the Crimes Act 1961, at the time that he or she committed the acts which constitute the offence. I comment that although this is called the defence of insanity, it is not a defence in the sense that it is some sort of legal construct that permits the guilty to go free. Rather, it is a recognition by the law that a person may, because of mental illness, be so disordered in their thinking that at the time they act, they lack the capacity to be held responsible for the crime they commit. On the law as it has developed, that is not a low threshold to meet..." I agree entirely with Justice Winkelmann's comment.

21. Furthermore, an application to discharge a Presidential or Court Committal Order under the repealed Criminal Procedure Code (Chapter 21) and/or the Criminal Procedure Decree 2009, is a very serious matter. This is especially so when it involved a double killing of two members of society. In the normal course of the criminal justice system, had Mr. Kaisau being found guilty of murdering Mr. Scrivener and Mr. Scott, he would be given the mandatory life imprisonment, with a non-parole period of 24 years: see State v Seremaia Naidole Momo, Criminal Case No. HAC 086 of 2011S, High Court, Suva, a double murder case. The court must consider and balance the competing interest of making sure that Mr. Kaisau is cared and treated properly at St Giles Hospital and ensuring the public safety. Every discharge application to the court must address the above competing interests.
    
22. Two questions will be asked in every discharge and/or review applications. First, has the applicant being properly cared for and treated at St Giles Hospital? Second, if so, is it safe to release him to the community? The answers to the above questions will have to be presented professionally. Experts in mental health and society generally will have to give evidence to assist the court balance the competing interests of the applicant and society generally. As far as his care and treatment at St Giles Hospital are concerned, the court would like to know his care and treatment programmes. What medications were given to him, and its effect? Was counselling provided to the applicant? If so, what were the results? As far as the safety of the public is concerned, the court would like to know, whether or not he had recovered mentally to such an extent that it is safe to release him to the community? On this issue, we would like to know what is his present attitude to the unlawful killing of people? On a double murder charge, the answer to the above question is absolutely essential. When Mr. Kaisau was assessed to be insane at the time of killing the two victims, two experts gave evidence, that is, Doctor S. Narayan, the then Medical Superintendent of St Giles Hospital and Professor Paul Mullen of Forensic Psychiatry at Monash University. For a discharge and/or review application, such expert evidence are also crucial to a successful application.
    
23. In this case, the evidence presented was that Mr. Kaisau had been cared for and treated at St Giles Hospital since the Presidential Committal Order of 5 November 2003. I commend the Medical Superintendent and his staff for the work they have put into Mr. Kaisau since 5 November 2003.
    
24. However, the details of his care and treatment at St Giles Hospital since 5 November 2003 had not been properly spelt out to the court. The details of the medications used, and their purpose and effect had not been professionally given to the court. The court had to ask questions to find out the answers to the above issues. In a discharge and/or review application, all these informations must be properly arranged and presented to assist the court make a decision. If they are not done, the court cannot confidently make a decision.
    
25. Furthermore, the effect of the numerous leave he had taken since 2004 was not professionally assessed and presented. His attitude to the killing of people had not been professionally identified and presented. It was absolutely essential for the court to assess the above before it makes a decision. The safety of the public was in issue. It was essential for us to form a view, despite his position at the time of the murder, that it was safe to release him into the community because he was now mentally well. As such, he must now form the view that it is wrong to kill people to resolve a problem. It was also advisable that such informations must be presented to the court professionally and by more than one professional.
    
26. For the above reasons, the present two applications before the court are declined. The 5 November 2003 Presidential Committal Order remains. My orders of 8 July 2014 remains. This case will be reviewed in 12 months time and hopefully the necessary informations will be professionally presented to the court at the time. The review is to be activated on three days notice by the applicant to the court, the respondent and the Attorney General as amicus curiae. I order so accordingly.
    

Salesi Temo
JUDGE

Solicitor for Applicant : Legal Aid Commission, Suva.
Solicitor for Respondent : Office of the Director of Public Prosecution, Suva.
Solicitor for Amicus Curiae : Office of the Solicitor General, Suva.