IN THE SUPREME COURT OF TONGA

R

v

Taufa

Supreme Court, Nuku'alofa
McElrea J
CR 226/2003

21-24 September 2004; 1 October 2004 

Criminal law – grievous bodily harm – defence of insanity -failed 

The prisoner attacked three people with a machete -his wife, his mother-in-law and a young man who was a complete stranger to him. He inflicted very serious wounds on the two women. He was originally charged with attempted murder of the two women and in the alternative grievous bodily harm in respect of those victims, as well as bodily harm relating to the young man. The Crown accepted that the prisoner did not intend to kill the two women and therefore it offered no evidence on the charges of attempted murder. The trial proceeded in respect of the two charges of grievous bodily harm and one of bodily harm. The defence raised was one of insanity and in particular it was said that the accused did not know that what he was doing was wrong because he suffered from "intermittent explosive disorder", which caused his emotions to overwhelm his ability to understand that what he was doing was wrong. The illness could be controlled with the drug Prozac. The prison officers responsible for obtaining the medication failed to do so and as a result the prisoner was not on the medication at the time of the offence. 

Held: 

1. The onus of proof was on the accused to establish a defence of insanity on the balance of probabilities. This meant that unless the Court could say it was more likely than not that the accused was insane, the defence must fail. This required something more than 50% in terms of the balance between the two sides of the argument. 

2. The Court accepted that the accused suffered from a disease of the mind but was not satisfied that at the time of the attacks he was insane. 

3. The defence of insanity failed. The constituent elements of the charges as defined in the Criminal Offences Act were proved beyond reasonable doubt, and the accused was accordingly found Guilty on the two counts of causing grievous harm and one count of causing bodily harm. The evidence called concerning the accused's mental state would be relevant at the time of sentencing. 

Cases considered:
Graham v R (Court of Appeal, CA 391/96, 27 February 1997, judgment of the Court delivered by Heron J)
Murcott v Police (High Court, Wellington, AP102/03, 18 June 2003, Goddard J) 

Statute considered:
Criminal Offences Act (Cap 18) 

Counsel for prosecution: Mr Kefu 
Counsel for the accused: Mr Niu 

Judgment

Central Issue 

The central issue in this case is whether the accused has established a defence of insanity based on "intermittent explosive disorder", a disorder of the mind affecting impulse control, which he is said to have suffered from at the time that he attacked three people with a machete. 

Basic facts 

There is no dispute as to the basic facts of this case. On the day in question, 23 February 2002, the accused escaped from the Hu'atolitoli Prison near the victims' place of residence and attacked all three of them with a machete, causing grievous harm to his wife and mother-in-law, and bodily harm to the third victim. The defence raised is one of insanity and in particular it is said for the defence that the accused did not know that what he was doing was wrong because he suffered from intermittent explosive disorder, which caused his emotions to overwhelm his ability to understand that what he was doing was wrong. 

Although the accused has some previous convictions for violence, he had not previously attacked any of these three persons.

The charges 

After the Crown had offered no evidence on charges of attempted murder, there were three remaining charges, one concerning each victim. 

In respect of the first victim (the accused's mother-in-law) Kalatiola Tukuafu, there is one charge of grievous harm, the particulars of which are that the accused on or about 23 February 2002, wilfully and without lawful justification caused grievous bodily harm to Kalatiola Tukuafu's head, back, hands, right foot and other parts of her body. 

A similar charge was laid in respect of the second victim, the accused's wife Mapa Taufa. Here the particulars allege that he wilfully and without lawful justification caused grievous bodily harm to her face, head, neck, back, hands and other parts of her body. 

Lastly there is a count relating to a third victim, the particulars of which are that on the same date the accused wilfully and without lawful justification caused bodily harm to Sani Feivivini. 

Legal definitions 

I turn now to the legal definitions applicable. First, s 106 of the Criminal Offences Act creates the offence of committing grievous harm. It provides that every person who wilfully and without lawful justification causes grievous harm to any person in any manner or by any means whatsoever shall be liable to imprisonment for any period not exceeding 10 years. Grievous harm is defined to mean various things including (a) any harm endangering life, and (b) any severe wound. There is no doubt in this case that the injuries inflicted on the two women victims were grievous harm within one or both of those paragraphs. Either of them could have bled to death had early help not been provided, and certainly they suffered severe wounds. 

Bodily harm is defined in s 107 to include any wound which is not severe. The third victim did suffer a wound as a result of the attack on him. It was not severe and there is no argument that the definition applies. As I say, the question really turns on the defence of insanity. 

The law of insanity in the Kingdom of Tonga is similar to that in many other countries. Under the s17 of the Criminal Offences Act a person is not responsible at law for what would otherwise be an offence if he is proved to have been insane 

"in that he was suffering from such a state of mental disease as to deprive him – 

(a) of capacity to understand the physical nature and quality of such act or omission; or 

(b) of capacity to understand that such act or omission was wrong."

It is the second of these limbs on which this case turns.

A fuller account of the facts 

The accused was serving a term of imprisonment of five years for robbery. The sentence was imposed in the year 2000. He was in prison at the Hu'atolitoli Prison which was almost adjacent to the petrol station where the three victims lived. It is a disturbing feature of this case that the accused seems to have been able to escape from that prison with relative ease and very often. It may well be of that if there had been proper security at the prison that the lives of these three people would not have been put at risk. 

Nevertheless, although he said that on some occasions he was given permission to leave, on this particular day he did not seek permission but rather left during the time after the cells have been opened for prisoners to prepare for morning worship. 

The accused had for some months heard persistent rumours that his wife was having an affair with another man. He had confronted her with this information but she had repeatedly denied it and this denial was apparently supported by her mother, with whom she was living. Her mother is Kalatiola Tukuafu, the first victim, and she was in charge of the petrol station. 

On the morning in question the accused left the prison very early to visit his wife. He took with him another prisoner's machete which appears to have been very sharp. He says he took it with him to help him break out from the compound, and that he used it to get through some barbed wire at the back of the block in which he was living. I am prepared to accept that evidence from him. He walked to the petrol station and leant through a louvre window at the back to wake up his wife and get her to let him in. He was carrying a backpack which he left at the back door, with the machete on top of it. 

Whilst inside, a discussion ensued between himself and his wife and also at times involving her mother. There was a separate discussion between the accused and his mother-in-law in which he asked why she caused so much trouble in the marriage. It is clear there was a level of resentment by him against her. The wife's evidence of the discussion between the other two included references to a divorce. It reached the point where eventually there were accusations between the two women following an astute question by the accused as to who had invited this other man to the house. At this point the mother-in-law said the daughter had done so, and this led to an exchange between the two women in which it became clear that the wife had indeed had an affair, and that the accused had been lied to. 

The accused's evidence is that at this point he was unable to speak and left the premises, walking at the direction of the prison. There is no evidence of his picking up the backpack and the knife at that point. Before he had gone far he was called back by his mother-in-law and then by his wife, to talk about matters. Indeed his mother-in-law suggested that they should make a "fresh start". 

The discussion between the accused and his wife resumed at what was referred to as "bedroom two" in the trial. The accused was standing in the doorway and could see through a louvre window into "room one". He there saw his mother-in-law apparently running off. His wife's account of the conversation at this point suggests that he said to his wife that he was going to get the mother-in-law to come and join the discussions. That is perhaps why he called out to her to stop, or to ask her where she was going. She did not stop and indeed he says she continued to run, and he ran after her. It appears she went out the back door already referred to, and was heading for a neighbour's property. 

The accused followed and I will refer to his own evidence now to indicate his account of what happened. He said he could not describe the feelings he had at that time, but he said "I came and stood at the back door and recalled my bag was outside. 

And I recall the knife was on top of the bag. So I took the knife and followed her." 

He went on in his evidence to say that he caught up with Kalatiola and hit her from behind, he believes on the head. He could not recall the number of times he hit her. She fell into a room in 'Elisapeta's house whence she had run. It was a dark room and he was surprised to find another person shouting out to him, this being 'Elisapeta. At that point he stopped striking Kalatiola and he walked back to the road. 

Kalatiola did not give evidence as she was apparently not available to do so.

The account by the second victim, the accused's wife, I will refer to also as given by her in the witness box. She referred at some length to the discussion which she had with the accused after he came into the house. There appears to have been a detailed discussion why she had not been visiting him, and questions such as, Was she sleeping with a police officer, and had she been to a certain police officer's home? Her account of the discussion immediately before the accused chased after her mother is that he said he needed to speak to her mother as she had said to her daughter to keep telling lies to the accused. At that point the wife said that he responded, "Stay here, I'll go and get her." 

The witness said that the next thing she heard was some banging on the door, meaning the outside or back door to room one, and she knew then he had left the house. She locked herself in the inner part of the house and tried to call the police. It was at this point that the accused demanded that the young man Sani who was sleeping on the floor in room one, should open the hallway door to the inner part of the house, but Sani was unable to do so. He was fearful of the accused's attitude and tried to run out the back door already referred to. He was chased by the accused who grabbed him by the collar and it appears that it was in that action of grabbing hold of him, perhaps while holding the knife, that he cut Sani's shoulder. 

The accused then kicked in the door to the hallway that gave entry to where his wife was phoning the police. Her evidence was that he came in with the knife and started to hit her. She said she was crying and shocked and that he kept saying, Why was I lying, and why had I not told him the truth? In other words, there is evidence there that while the injuries were being inflicted, he was still trying to extract answers to questions. (This is relevant later to the question of insanity.) 

The wife gave evidence that he was trying to cut her neck, and indeed she suffered a considerable number of cuts to her neck from the machete. She said that she saw a look in his eyes that she had never seen before, and when asked in cross-examination as to what that look was, she said it was "just pure anger". She contrasted this with other times that he would be angry but normally he would say he was sorry, or would smile or would cry, but this time there was no change. 

She managed to get outside and I gathered that the attack continued out there. She said she felt the world blackening but he kept pulling her hair and she fell. She said he kept repeating, "Tell me the truth and stop lying to me." 

The attack ended when the wife realised that their son was crying and she said, "Listen to our son crying", and the accused "stopped for a moment, and did listen to him crying, and softened up and dropped the knife and said sorry to me. It was like he awakened when heard the cry, and that it was the only reason he stopped. He then came and hugged me and kissed me on my head and then he left."

Injuries sustained 

The medical evidence was not disputed as to the injuries received. These were helpfully summarized by Mr Niu in his submissions. By his count, which I think is correct, there were five cuts on the first victim Kalatiola Tukuafu, those being to her left hand and little finger, the right side of her neck and right cheek, her right shoulder blade and two on the back of her head. There were nine cuts to his wife's body -three on her hands, one on her forehead, one on the back of her head, and four around the back of her neck. 

Mr Niu did not go into the number of cuts to the third victim but my study of the evidence suggests there was only one cut and it does not appear to have been a deep cut.

Evidence as to insanity 

The expert evidence came from Dr Mapa Puloka. He is a well respected psychiatrist with ample qualifications. Unfortunately he is the only psychiatrist in the Kingdom of Tonga, so unless a psychiatrist is brought from another country the Court is unable to hear psychiatric evidence from both sides of the argument. 

Dr Puloka said that he first saw the accused on 14 February 2002, which was a mere nine days before this incident. At that stage the accused was complaining that he could not control his temper and it had become a problem. Secondly he was complaining of having what was translated as having "a frequent startled response". Thirdly, inability to sleep. Fourthly the accused felt that the wind usually affected his way of thinking. Fifthly, he complained of localized tremor of the eyelid. He complained that his problems had become more serious in prison because he had no marijuana to smoke. 

At that stage Dr Puloka diagnosed his illness as cannabis dependency and prescribed Prozac which has the effect of decreasing depression and anxiety. He added that it also controls a disorder of impulse control. 

Since then Dr Puloka has seen the accused on numerous occasions, having seen him at different times in 2002, 2003 and 2004. "I know now the nature of his illness, to a degree", he said. He went on to say that he suffered from a condition known as intermittent explosive disorder. He said that this illness is known to be associated with previous organic problems, such as head injury or an episode of unconsciousness, or febrile convulsions. He said that the accused did not have any of those three factors but had suffered a similar trauma during childhood when at the age of nine or 10 months a bottle of boiling water was accidentally poured over his head – I imagine the child himself tipped over a thermos flask, or whatever it might be called here. The child was not given medical attention immediately and the burn became infected. He was taken to a surgery ward and given a general anaesthetic. Some skin had to be removed because it was infected and he was hospitalized for five days. 

The doctor's account of his patient's history includes a history of "bad temper". He gave examples which included an instance where his brother rebuked him in front of some friends and he responded inappropriately by throwing something at the brother and then smashing his brother's car. The witness said that it was disproportion to what his brother had done. In another incident he was angry with his sister-in-law  when she spoke to him about some domestic matter, and he threw a drawer at her. There was one incident of his parents reprimanding him and he was very angry and tried to commit suicide with an electric chord. 

It was the opinion of Dr Puloka that these incidents of apparent bad temper and inappropriate conduct were indeed a manifestation of the condition known as intermittent explosive disorder. He stressed that the initial trauma had occurred when the accused's brain was still developing and was very vulnerable, and that that incident was the cause of this illness and had been there since early childhood. 

He explained that one of the things known about the brain is the different levels of serotonin and that there is often a low level of serotonin associated with intermittent explosive disorder. Unfortunately levels of serotonin cannot be tested for in Tonga. He added that Prozac is used to raise or elevate the level of serotonin in the brain and the accused feels better when he takes Prozac. It also causes a reduction in the incidence of intermittent explosive disorder. 

Dr Puloka's conclusion was that the accused has a psychiatric disorder of this type which has an organic basis due to the low level of serotonin. He explained that this is a recognized mental disorder and falls within the so-called "impulse-control disorders, not elsewhere classified" in DSM-IV (Diagnostic and Statistical Manual of Mental Disorders, 4th edition). My enquiries indicate that according to p609 of that manual, intermittent explosive disorder is characterized by "discreet episodes of failure to resist aggressive impulses resulting in serious assaults or destruction of property". The degree of aggressiveness is "grossly out of proportion to any provocation or precipitating psychological stressor". 

Intermittent explosive disorder and insanity 

Turning then to the effect of that illness in terms of the definition of insanity, it was the opinion of Dr Puloka that the accused would have known what he was doing at the time, i.e. that he was slashing people with a machete, but he would not have known that what he was doing was wrong. In his opinion the accused was in a very emotional situation, and as a result of the illness such emotion "overwhelmed his judgment to know whether it was right or wrong". He added that therefore the accused was not in control of the situation whatever he did. 

When asked what the accused would have been thinking during that time, he said he could not answer that question but repeated that the emotions would have overwhelmed the accused's judgment. 

At the end of his evidence-in-chief the witness added that he knew "more than 50% of what had happened but he did not know all the facts". He said that the patient's history was incomplete, and he had not provided a report for the Court because he had not been subpoenaed by the defence as a witness. He therefore attended on a voluntary basis. 

I suggested to the witness that before he was cross-examined he should at least read the accused's account of the matter as recorded by the police in his interview with the police shortly afterwards. He did that over the period of an adjournment and before cross-examination commenced. During cross-examination the witness appeared to change his opinion. He said previously he had considered it 70 to 80% likely that the accused was unable to know that what he was doing was wrong, but now he felt it was about "50/50" that the emotions overwhelmed the understanding. 

In re-examination he was asked whether the very severe nature of the injuries inflicted and the repeated nature of them suggested that it was more likely than not the emotions had overwhelmed the accused's judgement or the ability to know right and wrong, but the witness did not appear to accept that proposition as following in that manner. He indicated, I think, that it all depended on the finer detail of the evidence. At one point he thought that the fact that the accused had reflected on the presence of the knife before he picked up -and was aware of it being there and that he picked it up consciously -was something that tended to suggest the exercising of a power of judgement at that moment.

Defence submissions

Mr Niu first submitted that the Court should accept that the accused had not taken the knife with him in order to attack his wife. I accept that submission and will proceed on the basis that the accused took the knife with him for the purpose which he stated in evidence (namely to break through the wire fence at the prison), even though he had given a different explanation at the time to the police. 

There was a very helpful account of the facts of the matter from Mr Niu, leading him to the point where he emphasised the severity of the injuries inflicted on the two women, and submitted that a man in his "right mind" would not take this murderous action. I raised with counsel the question whether a man in a jealous rage might not have exactly the same problem (of his emotions overwhelming his knowledge of right and wrong) without being insane, and whether there might be a floodgates problem if this defence was successful. Mr Niu submitted that the floodgate to hold back the flood waters is the requirement that there be a disease of a mind, and it is only in the relatively unusual case where expert evidence can establish a disease of the mind that such a defence can operate. I accept that for this reason there is no "floodgates" problem. There may still however be a problem in drawing the line. 

Mr Niu went on to submit that although the psychiatrist in cross-examination felt it was a 50/50 question as to whether there was knowledge of right and wrong on the part of the accused, nevertheless there was evidence which would be sufficient for a jury to accept the defence of insanity. 

Mr Niu helpfully referred me to passages out of two of the leading English texts, Archbold's Criminal Practice, and Smith and Hogan Criminal Law. Those passages are to the same effect and can be summarised by taking one passage out of Smith and Hogan 9th edition (1999) at page 205: 

The law does not recognise irresistible impulse even as a symptom from which a jury might deduce insanity within the meaning of the Rules. If, however, medical evidence were tendered in a particular case that the uncontrollable impulse, to which the accused in that case had allegedly been subject, was a symptom that he did not know his act was wrong, it would be open to the jury to act on that evidence. 

Those propositions are taken from the decision in Attorney General for South Australia v Brown [1960] 1 All ER 734 (PC).

As to whether the accused was on Prozac at the time of this incident, Mr Niu persuaded me on the evidence that the prescription which had been given to his client on 14 February 2002 had been lost by the prison officers, so that when the doctor saw the accused next (which was after this incident) he had to provide a new prescription. I accept on balance that the accused was not on Prozac at the time of this incident.

Submissions for the Crown 

Mr Kefu's submissions started with his accepting on behalf of the Crown that the accused had a disease of the mind. I believe that was a responsible concession, and in any event I do accept Dr Puloka's evidence to that effect. There was no evidence to contradict it, and Dr Puloka is a well respected psychiatrist. 

Nevertheless Mr Kefu submitted that on the balance of probabilities the accused was aware of what he was doing and knew that it was wrong. The first part of that -being aware of what he was doing -is not disputed by Mr Niu, and indeed the psychiatrist was of that opinion. As to the second part -that the accused knew that what he was doing was wrong -Mr Kefu put forward three arguments in support. 

First, he pointed out that the condition as described by Dr Puloka involved sudden outbursts of violence when irritated or wronged. But in this case (Mr Kefu said) the accused did not snap at the moment when he discovered he had been lied to about his wife having an affair. Instead of snapping -reacting in a violent way at that point -he "coolly walked out", as counsel put it, and was obviously in control of himself and his emotions. Even when he was called back to talk about it further, he managed to "keep his cool" until his mother-in-law started to run away when he called her back. 

Secondly, the accused had enough clarity of mind to know that there was a knife on the ground and to pick it up before pursuing the first victim, and also to take it with him when he kicked in the door to confront the second victim. 

Thirdly, as to the severity of the wounds, Mr Kefu submitted that this was an issue for sentencing rather than itself showing an overwhelming of judgement. He added that the issues must be decided at the time of the commencement of the attack. He accepted that the accused may well have lost control and lost the ability to judge once blood started to flow, and that his emotions may have risen to take over his capacity to know right and wrong; but he submitted that the judgement of the Court must be addressed to the moment of the first blow and not to those that followed. I accept that proposition. 

Finally, counsel on both sides agreed that the onus of proof is on the accused to establish a defence of insanity on the balance of probabilities. This means that unless the Court can say it is more likely than not that the accused was insane, the defence must fail. This requires something more than 50% in terms of the balance between the two sides of the argument.

Previous legal cases of intermittent explosive disorder 

Against all that background I can now refer to the few cases I have been able to discover where intermittent explosive disorder has been discussed in the context of criminal offending. I have not so far found any case where this disorder has been accepted as the basis for a finding of insanity. However, there are two cases which Research Counsel in New Zealand has supplied where this disorder has been accepted as relevant in mitigation of sentence; in neither case does it seem to have been relied upon as a defence. These are Murcott v Police (High Court, Wellington, AP102/03, 18 June 2003, Goddard J) and Graham v R (Court of Appeal, CA 391/96, 27 February 1997, judgment of the Court delivered by Heron J). 

I have also been supplied with the records of some American cases but although in some cases the disorder was raised as a defence, it has not (so far as I can see) been accepted as a defence on the facts of those cases. Nor have I found any case where it has been held that the disorder could not give rise to insanity. Indeed, in view of the general position concerning loss of control, as dealt with in Smith and Hogan, I would not expect to find such cases. It must always depend on the facts of the particular case. 

Conclusions on the evidence 

I accept (as does the Crown) that the accused suffered from a disease of the mind, namely intermittent explosive disorder. I am not however satisfied that at the time of these attacks he was insane. My reasons for this conclusion are as follows. 

1. Even Dr Puloka was not able to go above a 50% likelihood of the emotions overwhelming the understanding of right and wrong in this case -once the witness had read the accused's statements to the police. It may in future cases be wise if, before being called to give evidence, a psychiatrist is provided by counsel with the depositions from the preliminary hearing. (The ideal of course would be for the witness to sit in court and hear the prosecution evidence given at trial, but where resources are very limited that may not be a practical suggestion.) 

2. I am not satisfied on the evidence that the accused's emotions did in fact overwhelm his understanding. I may be in a better position than Dr Puloka to make that judgement, having heard all the evidence given here. In particular I stress the evidence of the wife that during the time she was being attacked with the machete the accused was demanding answers from her to his questions. That indicates to me that his mind was engaged in a rational process and that his powers of judgement had not entirely left him. 

3. Mr Kefu's submission about the delayed response from the accused -his initial response being to walk away -also points to the same result. This was not a sudden or immediate response at the moment he discovered he had been lied to about his wife's affair, but something that occurred after he had had time (and the good sense) to walk away from the discussion. 

Even if there had not been this problem of a delay, I would still have had difficulty with the defence case. It must happen often that enraged people act violently when their emotions overwhelm their judgement, without their having any disease of the mind. If those people are found Guilty of a serious crime, while others whose judgement is overwhelmed because of a disease of the mind are to be held Not Guilty, it is hard to see why there should be different outcomes when in both cases the defendant is not able to know at the time that what he is doing is wrong. Further, there is a problem of diagnosis. If the mentally ill one is in a rage induced in a perfectly logical way, how would you know if the violence was due to the illness or not? 

This issue does not however need to be decided in the present case; but it may partly explain why I have not so far been able to find a case where the defence of insanity has succeeded on the basis of intermittent explosive disorder. 

Result 

For those various reasons, then, I find that the defence of insanity must fail. I find further that the constituent elements of the charges as defined in the Criminal Offences Act have been proved beyond reasonable doubt, and the accused is accordingly now found Guilty on the two counts of causing grievous harm and one count of causing bodily harm. 

I should add, though, that the evidence which has been called concerning the accused's mental state will be very relevant at the time of sentencing, so that evidence has certainly not been a wasted effort.