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Police v Poloite [2021] WSSC 50 (20 October 2021)

SUPREME COURT OF SAMOA
Police v Poloite [2021] WSSC 50

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN

P O L I C E
Prosecution

A N D

AMOSA POLOITE male of Leulumoega Tuai and Nofoalii.
Defendant

Counsel:
F Ioane for prosecution
K Koria for defendant

Hearing: 12 October 2021

Reserved Judgment: 20 October 2021

RESERVED JUDGMENT OF PERESE CJ

1. On the evening of 17 October 2015, Pepe Toma Tomasi, a 23-year-old man, died of fatal injuries caused by stab wounds allegedly inflicted by the defendant. Police have charged the defendant with Mr Tomasi’s murder.
2. In December 2014, almost a year earlier, the defendant then aged 17 years old travelled to New Zealand under the Samoan Government Medical Scheme to have heart surgery. He had been diagnosed with Rheumatic heart disease.
3. Since his return to Samoa, the defendant has been psychiatrically assessed as suffering from mental impairments; today he makes an application under the Criminal Procedure Act 2016 (“the Act”) in which he seeks the making of the following orders;
   
   • (a) That he is mentally impaired for the purposes of s.76 of the Act;
   • (b) That he is therefore unfit to stand trial in this case;
   • (c) For a Community Treatment Order pursuant to Part IV of the Mental Health Act 2007;
   • (d) Any other the Court considers necessary.
4. The defendant’s father, Poloite Talaave, filed an affidavit in support of the application, dated 8 February 2021. Mr Talaave asserts that although his son’s aortic valve replacement and mitral valve repair surgery was successful, he noticed changes in his son’s behaviour when he returned to Samoa. His evidence provides:
   • “3 .... Whereas he had always been a happy, cheerful child who had enjoyed being in the company of others, he began to become withdrawn and reclusive. The most noticeable change was his inability to control his anger and the shortness of his temper, sometimes resulting in violent outbursts.
5. The success of the surgical procedures is confirmed by one of the physicians who monitored the defendant after his return; the defendant was described as doing very well post-operatively.^[3]
6. Mr Talaave’s affidavit also places before the court a psychiatric assessment, which was carried out by Dr Ian Parkin, consultant psychiatrist, in February/March 2016, and a one-page follow up report by Dr George Tuitama, Head of Mental Health Services, dated 22 January 2021. Dr Tuitama’s one pager is provided as an “updated psychiatric report” with respect to the defendant’s fitness to plea.
7. The respondent opposes the application; they submit the applicant has not provided sufficient evidence in support of his application; that neither of the medical reports satisfy the requirements of s.76 of the Act because neither explain in any sufficient or cogent way how the suggested mental impairments of deteriorating cognitive function or anger outbursts demonstrate the defendant is unfit to plead, and the ways in which these impairments cause the applicant to not understand the nature, purposes or possible consequences of the proceedings to the extent necessary to conduct a defence or instruct counsel for that purpose.

What do the Doctors reports say?

8. I note that the medical evidence in support of the application is very limited. The applicant relies on a psychiatric report which is frankly dated, and the update provided by Dr Tuitama is just one-page long. Dr Parkin’s 2016 report opines:
   • It is my opinion, on the balance of probabilities, that Amosa suffers two conditions. The first is of cognitive deterioration subsequent to his cardiac surgery which has left him with difficulty in controlling anger. The second is post-traumatic stress disorder related to his operation which also renders him less capable in dealing with anger.
   • Neither of these take away his capacity to form mens rea but they do both diminish his capacity to control his actions and to fully consider their consequences. This would interfere with his ability for premeditation.

9. Dr Tuitama’s one-page update suggests the defendant has improved on his anger outbursts and issues over the past 2 years. He has developed coping mechanisms...His mood and affect have improved, and he managed to converse well and was very cooperative. However, Dr Tuitama says that the defendant’s cognitive functions however have deteriorated since last seen in 2016. According to Dr Tuitama the defendant had difficulty with simple calculations, problem solving and recalling recent events. Dr Tuitama said:
   • It is my opinion from the history given by family and psychiatric assessment that Amosa suffers from permanent mental impairment. This would interfere with his ability to plea and stand trial.
10. Regrettably, Dr Tuitama does not place before the Court any more basis for his opinion than it was formed from the history given by the family, whatever that may have been, and the psychiatric assessment, again, whatever that may have been. Further and critically, Dr Tuitama does not address how the permanent mental impairment satisfies the requirements of the definition of what it means to be unfit to stand trial contained in s.73 of the Act. The Court is required to analyse and assess the expert opinion; it is impermissible for the Court to simply defer and rubber stamp an expert’s conclusion.

The law

11. I begin by acknowledging the observations of His Honour Justice Sir David Baragwanath whom at various times has sat, often as President, on our Court of Appeal. In a 2006 decision concerned with the issue of fitness to stand trial, the Learned Judge held:^[4]
    • The doctrine of fitness to plead has always been a confused area of law in New Zealand and elsewhere. That is because of what may be expressed as a trilemma. First, that society must be protected from antisocial conduct and a major means of doing so is the criminal law, so the threshold for criminal competence has been kept low. Second, that the developing recognition of the entitlement of every person to be treated with dignity requires that individual autonomy to make and be answerable for decisions be respected as far as practicable. Findings of lack of autonomy and fitness to plead are not lightly made. Thirdly, that the same right to dignity requires that both criminal liability and liability to face trial be in ratio to competence to make relevant decisions, so the test of fitness must not be too high.

(emphasis added)

12. Sir David’s synopsis of the principle policy challenges is a useful guide to be kept in mind when trying to resolve the inherent tensions in the Act.
13. In order to determine whether a person is fit to stand trial, the Act sets out the following 2 step procedure:
    • 76. Determining whether defendant is fit to stand trial - (1) The Court must have on record an opinion from 2 medical practitioners or 1 medical practitioner and 1 specialist nurse that the defendant is mentally impaired or has an intellectual disability before subsection (2) applies.
      • (2) If the Court is satisfied on the evidence given under subsection (1) that the defendant is mentally impaired, the Court must record a finding to that effect, and:
        • (a) give each party an opportunity to be heard and to present evidence as to whether the defendant is unfit to stand trial; and
        • (b) find whether or not the defendant is unfit to stand trial; and
        • (c) record the finding made under paragraph (b).
      • (3) The standard of proof required for a finding under subsection (2) is the balance of probabilities.
      • (4) If the Court records a finding under subsection (2) that the defendant is fit to stand trial, the Court must commence or continue the hearing or trial, or commit the defendant for trial, as the case may require.
14. The first stage in the inquiry is to determine whether a person has a mental impairment. If the answer to that question is in the affirmative, then the second part of the inquiry is for the parties to be heard as to whether the mental impairment means the person meets the definition of someone who is unfit to stand trial, as defined in s.73:
    • “unfit to stand trial”, for a defendant:
    • (a) means a defendant who is unable, due to mental impairment or intellectual disability, to conduct a defence, or to instruct a lawyer to do so; and
    • (b) includes a defendant who, due to mental impairment, is unable –
      
      • (i) to plead; and
      • (ii) to understand the nature, purposes or possible consequences of the proceedings to the extent necessary to conduct a defence or instruct a lawyer for that purpose.
15. Clearly, the term “mental impairment” is critical to both limbs of the inquiry. There is no statutory definition for what is meant by the term and that signals Parliament’s intention to leave it to the Courts to develop the meaning of the term on a case by case basis. I have not been able to locate any discussion on the meaning of the term, save to note two decisions in which mental impairment has been used in mitigation in sentencing: Police v Tiatia;^[5] Police v Chong Nee,^[6] and a third where the phrase was used in a civil dispute to connote its absence meant the court could give effect to a signed deed: Seabee Ah Yeung v Moe Jay To.^[7]
16. Assistance, however, can be gained from the New Zealand Court of Appeal in Tully v Police which observed as follows:^[8]
    • The Judge recorded that he must decide whether Mr Tully was mentally impaired; and if so, whether due to such impairment he was unable to conduct a defence or instruct counsel. With respect to mental impairment, the Judge followed the judgment of this Court in SR v R, in which it was held that mental impairment is not defined in the CPMIP and the term is not confined to mental disorder or intellectual disability or insanity; rather, it is referable to a mental state or a condition that impairs fitness to stand trial, making the defendant unable to participate adequately. Participation includes but is not limited to pleading, understanding the nature, purpose or possible consequence of the proceeding, and communicating adequately with counsel to conduct a defence. The assessment must be made in context, against the task expected of the defendant.
17. It is also worth setting out in full the following discussion:
    • [109] The inquiry into a defendant’s fitness to stand trial is not confined to functional competence: that is, the basic capacity to understand what is happening and to assist counsel. Multiple authorities indicate that it extends to decisional competence; the capacity for rational decision-making in the context of the particular trial. The Court explained in Nonu that the defendant must be able to participate effectively in the trial. This requires an assessment of the defendant’s intellectual capacity to carry out relevant trial functions. These functions are not confined to the statutory list of capacities in s 4 of the CPMIP: capacity to plead, to adequately understand the nature or purpose or possible consequences of the proceedings, or to communicate adequately with counsel for the purposes of conducting a defence. The inquiry must be addressed to the context of the particular defendant’s trial, which may be simple or complex. The Court emphasised that “[t]he ultimate assessment of a defendant’s ability to effectively participate in his or her trial is a judicial decision informed by expert evidence”.
      • [110] It remains the case that the autonomy of a competent defendant must be respected; for that reason, the inquiry is into their capacity to make rational decisions, not whether the decisions they make will be in their best interests.

(emphasis added)
DISCUSSION

18. Returning to the issues in this case, I consider the term mental impairment is used in the Act in the expansive sense which the Court in Tully referred – that it is not a term which is confined to mental disorder, intellectual disability or insanity or some similar prognosis, but that it refers to a mental state or condition generally, which might be considered an impairment to a person’s capacity to participate adequately by way of making rational decisions.
19. The Court accepts Dr Parkin’s opinion that the applicant suffers two relevant mental impairments – cognitive deterioration, and post-traumatic stress disorder, both arising from his heart surgery. Both mental impairments appear to result in the applicant’s inability to deal with or control his anger.
20. However, the Act and the authorities provide that there must be a nexus between the impairment and a finding of a defendant’s inability to plead or to understand the nature of the proceedings. The court in Tully observed that the focus is on whether the defendant has the capacity to form rational decisions, not whether the decisions they make will be in their best interests.
21. The defendant faces the charge of Murder. If found guilty he faces the mandatory sentence imprisonment for life.
22. The psychiatric evidence before the Court does not demonstrate how the impairments materially diminish the defendant’s capacity to make rational decisions in relation to this most serious of charges. It is not enough, indeed improper, for the expert witness to place itself in the position of the Court and simply declare an unfitness to stand trial – that declaration is a matter for the Court. The expert’s role is to provide evidence as to why someone’s capacity might be diminished by the impairments. All that is before the Court is that the defendant struggles to control his temper. This evidence does not mean the defendant is unable to form rational decisions at all, or, at least, when he is in control of his temper.

Community Treatment Order

23. One of the orders which the applicant sought from the Court is the making of a Community Treatment Order under the Mental Health Act 2007. Respectfully, such an order can only be made by a health care professional; it should have already been made at an earlier time, if it was warranted.

ORDERS

24. The Court makes the following orders:
    • (e) The applicant’s application that the Court makes an order that he is unfit to stand trial is dismissed.
    • (f) I direct the Registrar that this matter be placed on the mentions list so that it can be prepared for a trial.
    • (g) Costs are reserved

CHIEF JUSTICE