IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY CRI [2016] NZHC 2730 THE QUEEN TEVITA MAFI FILO

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1 NOTE: PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS OR IDENTIFYING PARTICULARS, OF COMPLAINANTS PROHIBITED BY S 203 OF THE CRIMINAL PROCEDURE ACT ORDER SUPPRESSING THE NAMES, ADDRESSES, IMAGES AND OTHER IDENTIFYING DETAILS OF THE VICTIMS, THE DECEASED'S CHILDREN. IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY CRI [2016] NZHC 2730 THE QUEEN v TEVITA MAFI FILO Hearing: 15 November 2016 Appearances: B H Dickey and N R Webby for Crown L Freyer for Defendant Judgment: 15 November 2016 ORAL JUDGMENT OF GILBERT J Solicitors: Meredith Connell, Auckland Public Defence Service, Auckland R v FILO [2016] NZHC 2730 [15 November 2016]

2 Introduction [1] Tevita Filo is charged with the murder of Joanne Pert, a complete stranger, by stabbing her in the throat with a knife while she was jogging along Shore Road, Remuera on the morning of 7 January [2] Mr Filo is also charged with indecently assaulting a female doctor at Auckland Hospital later that same morning by grabbing her buttock. He is further charged that a short time later he indecently assaulted another woman who was waiting at a bus stop on College Hill, Ponsonby, by putting his hand up her skirt and touching her on the outside of her underwear. These two victims were also not known to Mr Filo. [3] Mr Filo then drove to the Auckland Central Police Station and reported what he had done. He arrived there at approximately that morning. [4] Mr Filo is currently detained under the Mental Health (Compulsory Assessment and Treatment) Act 1992 by the Regional Forensic Psychiatric Service at the Mason Clinic in Auckland having been diagnosed as suffering from schizophrenia. Mr Filo, who has been found fit to stand trial, has pleaded not guilty to these charges by reason of insanity. 1 [5] The questions for the Court to determine today are: Has it been proved beyond reasonable doubt that Mr Filo committed these acts? (b) If so, was Mr Filo insane in terms of s 23 of the Crimes Act 1961 at the time? (c) If Mr Filo is not guilty of these offences on account of his insanity, should he be detained in a hospital as a special patient under the Criminal Procedure (Mentally Impaired Persons) Act 2003? 1 R v Filo [2016] NZHC 2158.

3 [6] The Crown and the defence agree that the answer to each of these questions is yes. However, the Court must come to its own conclusion based on its assessment of all of the evidence. Has it been proved beyond reasonable doubt that Mr Filo committed the acts giving rise to the charges? [7] There is no doubt that Mr Filo tragically killed Ms Pert in a sudden and completely unprovoked attack by stabbing her once in the throat at approximately 9.45 in the morning of 7 January Mr Filo told the police a few hours later that he had done this and he handed them the knife that he had used. Dr Joanna Glengarry, a forensic pathologist, confirms that Ms Pert died at the scene from the stab wound to her neck. [8] There is also no doubt that Mr Filo indecently assaulted the doctor. She states that she and a colleague were doing a ward round at approximately 10.30am. As they walked down a corridor they passed a man fitting Mr Filo s description who was walking the other way. Two or three seconds later, she felt someone grab her on the lower part of her right buttock. She turned and saw that it was the same man. She confronted him about what had happened but he just stared back at her. The doctor says that he didn t look right, he looked out of it and mentally unstable. She says that she felt unsafe and was concerned for the safety of others in the hospital so she immediately called security. However, the man disappeared down the stairwell while she was talking to security on her cellphone. Mr Filo also admitted his involvement in this incident when he spoke to the police a few hours later. [9] The third female victim says that at am on 7 January 2016, she was standing at a bus stop on College Hill waiting for a bus to take her into the city for a midday appointment. She was sending a text when she noticed a car with a sole male occupant slow right down in front of the bus stop. She carried on texting. Very soon after, she looked up to see whether the bus was coming and saw the man who had been driving the car standing right in front of her. He leaned down as if to pick something up off the ground and then put his hand up her skirt and touched her on the outside of her underwear. She dropped her phone and started hitting him and

4 telling him to get away from her. She says that the man appeared to be spaced out, as if he was on drugs and seemed a bit odd. [10] This incident was witnessed by a man who was also waiting at the bus stop. He told the victim to call the police while he gave chase down the road but the assailant sped off in his car before he could catch up with him. The victim and this witness were able to give a good description of the man to the police along with a description of his car and its registration number. This is the car Mr Filo was driving when he turned himself in to the Auckland Central Police Station at approximately that morning. Mr Filo also confirmed his involvement in this assault when he spoke to the police in his video interview. [11] I have given only a very brief summary of the evidence. However, having reviewed all of the evidence, none of which is challenged, I am satisfied beyond reasonable doubt that Mr Filo committed the acts that form the basis of all three charges. Was Mr Filo insane in terms of s 23 of the Crimes Act at the time? [12] Section 23 of the Crimes Act reads: 23 Insanity (1) Every one shall be presumed to be sane at the time of doing or omitting any act until the contrary is proved. (2) No person shall be convicted of an offence by reason of an act done or omitted by him or her when labouring under natural imbecility or disease of the mind to such an extent as to render him or her incapable (b) Of understanding the nature and quality of the act or omission; or Of knowing that the act or omission was morally wrong, having regard to the commonly accepted standards of right and wrong. (3) Insanity before or after the time when he or she did or omitted the act, and insane delusions, though only partial, may be evidence that the offender was, at the time when he or she did or omitted the act, in such a condition of mind as to render him or her irresponsible for the act or omission.

5 [13] Section 20 of the Criminal Procedure (Mentally Impaired Persons) Act 2003 details the circumstances in which a judge must record a finding that a defendant is not guilty on account of insanity: 20 Finding of insanity (2) Before or at a trial, the Judge must record a finding that the defendant is not guilty on account of his or her insanity if (b) (c) the defendant indicates that he or she intends to raise the defence of insanity; and the prosecution agrees that the only reasonable verdict is not guilty on account of insanity; and the Judge is satisfied, on the basis of expert evidence, that the defendant was insane within the meaning of s 23 of the Crimes Act 1961 at the time of the commission of the offence. [14] As noted, Mr Filo has pleaded not guilty by reason of insanity. The Crown agrees, based on the evidence, that the only reasonable verdict on each of the charges is not guilty on account of insanity. The first two criteria are therefore satisfied and I now turn to consider the third criterion, namely whether, based on the expert evidence, Mr Filo was insane within the meaning of s 23 of the Crimes Act at the relevant times. [15] I have had the benefit of detailed reports from two highly qualified and experienced psychiatrists, Dr Mhairi Duff and Professor Graham Mellsop, both of whom consider that Mr Filo was suffering at the relevant time from a disease of the mind as that term is used in s 23 of the Crimes Act to such an extent that he was incapable of knowing that his acts were morally wrong. [16] Dr Duff has worked as a consultant psychiatrist for the past 15 years. She has specialist expertise in the area of forensic psychiatry and psychiatry of intellectual disabilities. Dr Duff carefully reviewed all of the evidence available from a variety of sources, including Mr Filo s interview at the police station which was recorded on video. Dr Duff also interviewed Mr Filo on four occasions, the first of these interviews being conducted on 31 January 2016 and the most recent on 2 October 2016.

6 [17] Dr Duff notes that Mr Filo, who is now aged 25, has been on renal dialysis since the age of 15 when he developed post streptococcal renal disease. He has end stage renal failure and requires dialysis three times a week. She states that Mr Filo has reported experiencing auditory hallucinations for a number of years. Despite receiving treatment at the Mason Clinic with antipsychotic medication, Dr Duff reports that Mr Filo s underlying delusional beliefs remain largely unchanged. [18] On his admission to the Mason Clinic on 13 January 2016, Mr Filo was assessed as suffering from thought disorder. He was observed to be responding to voices no one else could hear which were apparently giving him instructions on what to do or say. He also reported visual hallucinations and hallucinatory experiences of being touched. He described a complex delusional belief system that incorporated the nursing staff and said that these voices controlled everything in the world. [19] Mr Filo later explained to Dr Duff his firmly entrenched belief that the world is a virtual reality, like a video game, and that everyone in this world is computer generated and under the control of people in another world, the real world. He believes that he is the king of the real world and his mother is the queen who organises the controllers and is behind the voices he hears. He believes that he has been sent to this world to achieve unknown missions or goals. Mr Filo reported his belief that by committing a crime he would end the game. [20] Dr Duff reports that during this discussion, Mr Filo appeared callous and indifferent to his victims and often smiled. She explains that this is because Mr Filo does not believe that his victims are real people; instead, like all other players in the virtual world, he believes they are computer-generated. [21] Dr Duff says that extensive psychological tests were carried out to determine whether Mr Filo was fabricating his symptoms but no evidence was found that he was malingering. The results were consistent with someone presenting with schizophrenia and possibly atypical symptoms associated with his medical condition. [22] It appears that the antipsychotic medication Mr Filo has been receiving has assisted in that the voices are not now as loud, frequent or intrusive and no longer make commands. However, Mr Filo apparently believes that the improvement in his symptoms is due to the current impasse in the game, rather than the medication.

7 Mr Filo says that he continues to explore options for returning to the real world but does not yet know what missions or goals he needs to complete to achieve this. [23] Dr Duff says that it is evident from viewing Mr Filo s interview with the police shortly after the offences were committed that he was mentally ill at that time. She gave numerous examples of statements Mr Filo made during this interview that are consistent with him suffering from schizophrenia. [24] Dr Duff concludes that Mr Filo was suffering from a severe and enduring psychotic mental illness as a result of which he was incapable of knowing the nature and quality of his actions on the morning of 7 January Mr Filo believed that his victims were not autonomous, live human beings existing in real time in the real world. Dr Duff also considers that Mr Filo did not understand that his actions were morally wrong. [25] Professor Mellsop has 45 years experience in the field of psychiatry. He was engaged by the Crown to provide a further independent assessment of whether Mr Filo was insane at the time the offences were committed. Professor Mellsop confirms that Mr Filo appears to have developed schizophrenia several years ago and this has resulted in his former pleasant personality being displaced by asocial and antisocial behaviour. Professor Mellsop also noted that for the past five years Mr Filo has experienced auditory hallucinations, predominantly the voice of his mother although she often changes her voice in an effort to deceive him. Professor Mellsop reports Mr Filo s belief that a machine controls his virtual world and is responsible for these voices. [26] Professor Mellsop states that Mr Filo exhibited many of the classical signs of schizophrenia with particularly prominent auditory hallucinations, thought disorder, lack of appropriate affect and complete immersion in a complex delusional belief system. Professor Mellsop considers that the voices or hallucinations were directly relevant to the assault on Ms Pert because of Mr Filo s view that his actions were being commanded from outside. They were indirectly relevant by distressing him so much that he was trying to escape them or silence them. Professor Mellsop adds that Mr Filo s delusional beliefs and affective state allowed him to totally disregard the needs, rights and feelings of others.

8 [27] Professor Mellsop concludes that Mr Filo was suffering from a disease of the mind at the relevant time to such an extent that he was not capable of knowing right from wrong according to commonly accepted standards in the community. [28] I am satisfied, on the basis of the unchallenged expert evidence of Dr Duff and Professor Mellsop, that Mr Filo was insane within the meaning of s 23 of the Crimes Act at the time he committed the offences on the morning of 7 January I find that at that time Mr Filo was suffering from schizophrenia, a disease of the mind, to such an extent as to render him incapable of knowing that his acts were morally wrong having regard to the commonly accepted standards of right and wrong. Accordingly, I find Mr Filo not guilty on account of his insanity on each of the three charges. Should Mr Filo be detained in a hospital as a special patient under the Act? [29] Having acquitted Mr Filo on account of his insanity, the Court must determine the most suitable method of dealing with him under s 24 or s 25 of the Criminal Procedure (Mentally Impaired Persons) Act. Section 25 only applies if the Court is not satisfied that it is necessary to make an order for Mr Filo s indefinite detention as a special patient or a special care recipient under s 24(2) of the Act. Section 24 provides: 24 Detention of defendant found unfit to stand trial or insane as special patient or special care recipient (1) When the court has sufficient information on the condition of a defendant acquitted on account of his or her insanity, the court must (b) (c) consider all the circumstances of the case; and consider the evidence of 1 or more health assessors as to whether the detention of the defendant in accordance with one of the orders specified in subsection (2) is necessary; and make one of the orders referred to in paragraph (b) 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. (2) The orders referred to in subsection (1) are that the defendant be detained in a hospital as a special patient under the Mental Health (Compulsory Assessment and Treatment) Act 1992; or

9 (b) in a secure facility as a special care recipient under the Intellectual Disability (Compulsory Care and Rehabilitation) Act (3) Before the court makes an order specified in subsection (2), the court must have received evidence, under subsection (1)(b), about the defendant from at least 1 health assessor who is a psychiatrist. [30] It is clear from the evidence I have summarised that it is necessary to make an order for Mr Filo s detention in accordance with one or other of the orders specified in s 24(2). This is because, despite the treatment and medication Mr Filo has been receiving since January 2016, he continues to suffer from ongoing delusions and schizophrenia and would pose a high level of risk to the community if he were not detained indefinitely in a secure environment. Dr Duff s clear view is that such an order is necessary and I agree with this assessment. [31] There is no disagreement with Dr Duff s recommendation that Mr Filo should be detained in a hospital as a special patient so that he can obtain the treatment, supervision and support he needs. I accept that recommendation. This means that Mr Filo will be detained as a special patient in a secure mental health facility indefinitely. He will not be released unless the Minister of Health, acting on appropriate medical advice, is satisfied that continued detention is no longer necessary to protect the public. Result [32] I find Mr Filo not guilty on account of his insanity on each of the three charges. [33] I make an order that Mr Filo be detained in a hospital as a special patient pursuant to s 24(2) of the Criminal Procedure (Mentally Impaired Persons) Act M A Gilbert J

NOTE: PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 139 OF THE CRIMINAL JUSTICE ACT 1985.

NOTE: PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 139 OF THE CRIMINAL JUSTICE ACT 1985. IN THE COURT OF APPEAL OF NEW ZEALAND CA82/2014 [2014] NZCA 304 BETWEEN AND TOESE