IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE CRI-2008-090-009921 [2018] NZHC 1808 THE QUEEN v BOUSHRA RAHMAN Hearing: 20 July 2018 Counsel: E Woolley for the Crown D Niven and P Winter (off-site) for the Defendant Judgment: 20 July 2018 DISPOSITION JUDGMENT OF WOOLFORD J Solicitors / Counsel: Crown Solicitor, Auckland D Niven, Auckland R v RAHMAN [2018] NZHC 1808 [20 July 2018] Introduction Ms Rahman has been charged with the murder of her sister. She is, however, [1] unfit to stand trial. I must now determine the most suitable method of dealing with her under ss 24 and 25 of the Criminal Procedure (Mentally Impaired Persons) Act 2003. A brief history of events [2] Ms Rahman was charged with her sister’s murder on 13 October 2008. On 25 May 2010, she was found unfit to stand trial. On 29 June 2010, an order was made detaining her as a special patient under the Mental Health (Compulsory Assessment and Treatment) Act 1992. [3] The Director of Area Mental Health Services directed that Ms Rahman’s status be changed to special care recipient, under the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003, in January 2012. She was transferred from the Mason Clinic in Auckland to the Haumietiketike Unit in Porirua. [4] On 3 September 2015, the Attorney-General directed that Ms Rahman be brought before the appropriate court as a certificate had been given under the Intellectual Disability (Compulsory Care and Rehabilitation) Act that she was no longer unfit to stand trial. [5] Following some delay, on 16 May 2016, she was found fit to stand trial in the District Court. She was committed for trial in the High Court at Auckland. But, on 8 May 2018, I found Ms Rahman unfit to stand trial, once again.1 My judgment of that date outlines Ms Rahman’s illnesses and disabilities, and several reports, in detail. I do not repeat that information here. 1 R v R [2018] NZHC 978. The law [6] When a person has been found unfit to stand trial, the Court must conduct a disposition hearing.2 The purpose of that hearing is to determine the most appropriate way of dealing with the defendant under ss 24 and 25 of the Criminal Procedure (Mentally Impaired Persons) Act. [7] First, the Court must determine whether it is necessary to make one of the orders listed in s 24(2). There are two options in that sub-section: (a) An order that the defendant be detained in a hospital as a special patient under the Mental Health (Compulsory Assessment and Treatment) Act. (b) An order that the defendant be detained in a secure facility as a special care recipient under the Intellectual Disability (Compulsory Care and Rehabilitation) Act. [8] The Court must consider all the circumstances of the case in determining the appropriate order.3 It must also consider the evidence of one or more health assessors as to whether the detention of the defendant in accordance with one of the orders specified in s 24(2) is necessary. [9] Having considered that information, the Court must make one of those orders if it is satisfied that the making of the order is necessary in the interests of the public or any person or class of person who may be affected by the Court’s decision. The standard of necessity sets a high threshold.4 Mere expediency or desirability is not sufficient. But the order does not have to be essential either. Necessity falls between these concepts.5 [10] 2 3 4 5 6 The Court of Appeal described the public interest in this inquiry as follows:6 M (CA819/2011) v R [2012] NZCA 142 at [4]. Criminal Procedure (Mentally Impaired Persons) Act 2003, s 24(1)(a). M (CA819/2011) v R [2012] NZCA 142 at [17]. M (CA819/2011) v R [2012] NZCA 142 at [17]. M (CA819/2011) v R [2012] NZCA 142 at [7]. The interests of the public in this context are twofold. First, there is the need to be protected from further offending by the offender. The longer term public interest, and one that the offender obviously shares, is to ensure that the offender is managed and treated in a manner best calculated to achieve the ultimate goals of rehabilitation and reintegration into the community. [11] The Court must take into account both the immediate and long term risks the offender poses, as well as the need to comprehensively manage and treat any medical and/or personality issues that he or she presents.7 [12] Second, if the Court concludes it is not necessary to make an order under s 24, it must make an alternative form of order under s 25. Section 25 contains less restrictive options. The experts [13] [14] Two experts have examined Ms Rahman with a view to disposition: (a) Dr James Gardiner, a forensic psychiatrist. (b) Dr Ian Goodwin, a specialist psychiatrist. The psychiatrists agree Ms Rahman has an intellectual disability, in terms of the Intellectual Disability (Compulsory Care and Rehabilitation) Act, and is mentally disordered, in terms of the Mental Health (Compulsory Assessment and Treatment) Act. [15] Dr Gardiner does not recommend any specific order, but outlines the advantages and disadvantages of each. He considers orders that Ms Rahman be detained as a special patient, special care recipient, patient or care recipient could be appropriate. And he describes the patient option as the least appropriate. [16] Dr Goodwin considers an order under s 24(2) is necessary and, on balance, recommends Ms Rahman be detained as a special patient. He considers this option is 7 M (CA819/2011) v R [2012] NZCA 142 at [8]. most appropriate in light of her complex treatment needs, as well as the need to ensure both patient and public safety. Is an order under s 24(2) necessary? [17] I am satisfied it is necessary to make an order under s 24(2) that Ms Rahman be detained as a special patient because of five broad reasons. The parties agree this is the appropriate course. [18] First, Ms Rahman poses a risk to others. I have found on the balance of probabilities that the evidence against Ms Rahman is sufficient to establish that she caused the act or omission that forms the basis of murder. She has also attempted to assault, and actually assaulted, staff and her peers on several occasions. In fact, she is currently in a wheelchair because of an injury sustained in an attempted assault. [19] Second, Ms Rahman poses a risk to herself. There are dozens of incidents of self-harm yearly. Ms Rahman’s actions in this regard include head-banging, cutting, swallowing plastic, pouring hot liquid on herself, inserting objects into wounds and more. Dr Gardiner notes since her remand in the Mason Clinic from 2015, the staff have been trialling different management plans, with the less restrictive plans generally resulting in fewer incidents. [20] Ms Rahman does not see herself as posing a significant risk to herself or others. This, however, is clearly at odds with her continuing altercations with staff and selfharming behaviour. [21] Third, given the risks posed by Ms Rahman, I consider she will be best managed in a secure hospital environment, with regular supervision. As explained, the risks are extensive. [22] Fourth, Ms Rahman’s combination of issues is particularly complex – she is both intellectually disabled and mentally disordered. Treating her properly will be difficult. To further complicate things, she suffers from side effects from antipsychotic medication. [23] Dr Gardiner explains that special patient status will allow those treating Ms Rahman to focus on both the mental illness and psychological aspects of her risk, allowing the development of strategies to help her. He considers that to date, particularly with respect to her mental health, the complexity and interplay of her symptoms with her behaviour has not been well understood. Dr Goodwin agrees there needs to be considerable coordination between the treatment providers. [24] As a special patient, a combined treatment model can be pursued between the local forensic mental health services and the local forensic intellectual disability services. She will also be reviewed at regular intervals. Her status can again be changed to special care recipient, if appropriate. This option provides flexibility in this regard. [25] Fifth, given all the circumstances, the Attorney-General, the Minister of Health, the Director of Mental Health, or the Director of Area Mental Health Services, as appropriate, should be involved in decisions regarding Ms Rahman’s status, leave and eventual release. Those decisions should not be left to the clinicians that treat her. The additional oversight special patient status provides is necessary given the complex issues in this case. [26] Dr Gardiner expresses concern Ms Rahman will now essentially be subjected to a renewed 10-year maximum period as a special patient. That appears to be the position – there is no method for reducing the maximum period to take into account the time she has spent as a special patient or special care recipient already. But I note the period is a maximum. Those responsible for Ms Rahman’s care will maintain flexibility and there is scope for Ms Rahman’s status to change before the expiry of that period, if appropriate.8 This has happened previously – Ms Rahman’s status was changed from special patient to special care recipient in 2012. Given Ms Rahman’s complex needs, the risks she poses and the flexibility required, I consider an order that Ms Rahman be detained as a special patient appropriate, notwithstanding that, in total, 8 Criminal Procedure (Mentally Impaired Persons) Act 2003, s 31 and Mental Health (Compulsory Assessment and Treatment) Act 1992, s 47A. it is probable she will spend more than 10 years as a special patient or special care recipient.9 Suppression? Ms Rahman was granted interim name suppression by Judge L Tremewan on [27] 12 December 2016 because of fair trial reasons. I now need to consider whether suppression should be permanent. Section 200 of the Criminal Procedure Act 2011 deals with suppression of a [28] defendant’s identity. Specifically, s 200(2) provides the Court may only make such an order if it is satisfied that publication would be likely to cause at least one of the listed consequences. The relevant grounds are if publication would be likely to cause extreme hardship to the person charged or endanger the safety of any person. The starting point, however, will be the principle of open justice. I asked counsel for submissions on the potential risk to Ms Rahman if her name [29] was published, including the likely effect of publication on the risk of self-harm. The Crown submits this question largely depends on the views of the medical [30] experts, but notes on the basis of the reports to date, there does not appear to be any suggestion Ms Rahman’s treatment would be compromised by the publication of her name. [31] Counsel for Ms Rahman consulted experts on this point. The clinician responsible for her long term care is on leave, but the clinician responsible for Ms Rahman in his absence said, in the short term, staff at the Mason Clinic would be able to supervise her access to media and manage her risk to self and others. As to the long term, the doctor said if Ms Rahman is confronted with her name in the media she could become emotionally dysregulated, which could increase her risk to herself and others. The doctor said: She has a very low tolerance to frustration with prominent anger, and can be unpredictable and impulsive. This is due to a combination of her Borderline 9 Contrast R v Stone [2018] NZHC 1340. Personality Disorder and Intellectual Disability. These are enduring and unlikely to change significantly over time. [32] Defence counsel further contacted Dr Goodwin, who also considers the Mason Clinic could manage the risk in the short term. On the question of medium to long term risk, Dr Goodwin said: The medium to long term risks are consistent regardless of name suppression and can be triggered by all sorts of interactions, so I would find it difficult to say that loss of name suppression would necessarily increase risk in the medium to long term. [33] In those circumstances, I decline to order permanent name suppression. While Ms Rahman is clearly at risk of continuing harm, I am not satisfied the effect of publication is sufficient to override the principle of open justice. Both doctors consulted on this point agree the short term risks can be managed. As regards the medium to long term risks, I find the views expressed by Dr Goodwin decisive. He said the risks were consistent regardless of name suppression, and said he “would find it difficult to conclude that loss of name suppression would necessarily increase the risk”. Media applications [34] Mr Edward Gay (Radio New Zealand) and Mr Sam Hurley (New Zealand Herald) have applied for access to documents in this proceeding. Mr Gay seeks access to my judgment on Ms Rahman’s fitness to stand trial, a District Court judgment of Judge L Tremewan and expert reports relating to fitness to stand trial. Mr Hurley seeks access to “the permanent Court file”, including access to “the summary of facts, any affidavits, any Judge’s minutes, any memorandum and any Judge’s orders and judgments”. [35] The applications fall to be determined under the Senior Courts (Access to Court Documents) Rules 2017. They are made on the grounds that there is public interest in this matter and access is necessary to ensure fair and accurate reporting. [36] Every person has general rights of access to certain documents in a criminal proceeding.10 But as there has been no trial, the judgments, orders and minutes to which access is requested are not accessible as of right. 11 The remainder of the documents requested are generally not accessible as of right either. The requests, therefore, need to be considered under rr 12 and 13 of the Senior Courts (Access to Court Documents) Rules. Rule 12 sets out factors to be considered in determining requests for access. None of these factors have primacy; there is no hierarchy of considerations.12 But as there has not been a substantive hearing, the protection of confidentiality and privacy interests and the orderly and fair administration of justice may require that access to documents be limited.13 [37] I grant Mr Gay and Mr Hurley access to my judgment of 8 May 2018 finding Ms Rahman unfit to stand trial with one caveat. Ms Rahman’s instructions to counsel as recorded in paragraphs [36] and [40] are not to be published. Such instructions are privileged. I decline the remainder of the applications for two reasons. [38] First, the reports on the court file and other documents contain extensive personal information about Ms Rahman. There are many expert reports, close to 30, and some of these are very detailed. Ms Rahman’s privacy in this regard should be respected. Especially given there has not been a trial. [39] Second, in light of Ms Rahman’s privacy interests, I consider the principle of open justice is satisfied by the access granted to my judgment of 8 May 2018. My judgment contains information about the charge and the prosecution history, including previous hearings as well as detailed extracts from the expert reports.14 That, in my view, should be sufficient to ensure fair and accurate reporting. 10 11 12 13 14 Senior Courts (Access to Court Documents) Rules 2017, r 8(3). Senior Courts (Access to Court Documents) Rules 2017, r 8(4)(a). Greymouth Petroleum Holdings Ltd v Empresa Nacional del Petróleo [2017] NZCA 490, [2017] NZAR 1617 at [21]. Senior Courts (Access to Court Documents) Rules 2017, r 13(a). Chapman v P (2009) 20 PRNZ 330 (HC) at [32]. Order [40] Accordingly, I now formally make an order under s 24(2)(a) of the Criminal Procedure (Mentally Impaired Persons) Act 2003 that Ms Rahman is to be detained as a special patient under the Mental Health (Compulsory Assessment and Treatment) Act 1992. [41] I reserve leave to Mr Niven to file a further memorandum if he wishes to do so on the issue of a stay of the outstanding charge. _________________________ Woolford J