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R v Tamati [2021] NZHC 1451 (18 June 2021)

Last Updated: 28 July 2021

JUDGMENT OF PALMER J

Counsel/Solicitors

Crown Solicitor, Wellington D J Taffs, Barrister, Westport

R v TAMATI [2021] NZHC 1451 [18 June 2021]

Summary

• [1] In 2020, Mr Tristan Tamati was convicted of rape and other sexual offending. In applying for his preventive detention, the Crown seeks orders that a health assessor, the Crown and the Court have access to four psychological reports from 2006 to 2010 about Mr Tamati from when he was in prison for previous sexual offending. Mr Tamati objects on the basis that he has medical privilege in his communications to the psychologist for the 2006 report. I consider he does not, on the basis of the content of the report and Mr Tamati’s signature of a consent form. I am satisfied that he would have believed the purpose of the interview was to assist the Parole Board to consider his suitability for parole and Corrections staff to manage his sentence. I do not consider he would have believed his communications were necessary to enable the psychologist to examine, treat, act for, or care for him, for drug dependency or any other condition or behaviour that may manifest itself in criminal conduct. That is what I would have to be satisfied of, for medical privilege to exist under s 59(2) of the Evidence Act 2006. I make the orders sought, subject to Corrections checking the status of other information in the reports.

What happened?

Convictions

• [2] On 21 October 2020, after trial by jury in the Wellington District Court, Mr Tamati was found guilty and convicted of two offences of rape, two offences of unlawful sexual connection, indecently assaulting a young person, and supplying methamphetamine.

• [3] The Court ordered standard pre-sentence reports from Corrections as well as reports for the purpose of considering preventive detention under s 88 of the Sentencing Act 2002. Section 88(3) provides “[t]o avoid doubt, a health assessor’s report under subsection (1)(b) may take into account any statement of the offender or any other person concerning any conduct of the offender, whether or not that conduct constitutes an offence and whether or not the offender has been charged with, or convicted of, an offence in respect of that conduct”.
• [4] The matter was transferred to the Wellington High Court for consideration of preventive detention as a sentence. Mr Tamati has committed very serious sexual violence offences before.¹ The Crown intends to pursue preventive detention, given Mr Tamati’s history. Three s 88 reports were prepared, on 21 January, 5 February and 10 February 2021, but the report writers advised that their opinions were limited by Mr Tamati’s refusal to engage with them and their inability to access psychological reports previously prepared for the purpose of Mr Tamati’s Parole Board hearings.²

The Reports

• [5] Four psychological reports were prepared about Mr Tamati by Corrections’ psychologists for the Parole Board, in 2006, 2007, 2009, and 2010. Corrections has provided me, and Mr Taffs as counsel for Mr Tamati, with the reports by way of a confidential affidavit. Corrections has not provided the reports to the Crown Solicitor, who has not seen them.

• [6] Mr Tamati participated in the assessment for only one of the four assessments for the Parole Board Assessment Reports, in 2006. He signed a two-page consent form to be interviewed for that assessment.³ The form recorded that he acknowledged:

(a) The purpose of the report was to assist the Board to consider the suitability of parole and associated conditions.

(b) The psychological report would still be prepared if he did not consent to participate in the interview.

(c) It was explained to him that Corrections staff managing his sentence may have access to the report, “which will inform their management of my case during the period of my sentence” and would be held in the

¹ R v Tamati HC Greymouth S 1/97, 26 June 1997 at 4.

2. Psychiatric Report on Tristan Lee Tamati, 21 January 2021 at [21]; Psychological Assessment Report to the District Court, 5 February 2021 at [6]; and Psychiatric Report on Tristan Tamati, 10 February 2021 at [29].

³ Affidavit of Sophie Hunter, 9 June 2021 [Hunter Affidavit], Exhibit 1 at 2.

Department’s electronic file management system “and all those with authorised access will be able to read the report”.⁴

(d) He understood that the information from the interview may also be used by prison and psychological service staff in considering whether to make an application under s 107 of the Parole Act not to release him at his two thirds release date because of his risk of reoffending or by the Parole Board in postponing consideration for parole.

(e) He understood “the information from the assessment, and the resulting report, may be accessed at a later date by Department of Corrections staff, including for future reports to the NZPB and the Courts”.⁵

(f) He understood that if he disclosed information that indicates he “may pose a risk of serious harm to myself or others the psychologist will disclose information necessary to prevent or lessen this harm”.⁶

• [7] The 2006 report itself repeats that the purpose of the report was “to assist the New Zealand Parole Board in considering suitability of parole and associated conditions”.⁷ It states “the purpose of the assessment and the limits of confidentiality” were explained to Mr Tamati who appeared to understand them and provided written consent to be interviewed.⁸ In addition to the interview, the 2006 report states it was based on:

(a) Mr Tamati’s criminal history;

(b) the 1997 summary of facts, Corrections’ 1997 pre-sentence report, the victim impact statements, Pankhurst J’s 1997 sentencing notes;

(c) four psychological service reports provided to the Public Prisons Service in 1998, 2001, 2002, and 2005;

⁴ At 1.

⁵ At 2.

⁶ At 2.

⁷ Confidential Affidavit of Sophie Hunter, 9 June 2021 [Hunter Confidential], Exhibit A at 1.

⁸ At 1.

(d) sentence plan reports and file notes from 1997 to 2006, consultation with a sentence planner and unit staff, a Sentence Plan Review Worksheet, sentencing planning indicators, misconduct and incident reports from 1997 to 2006;

(e) reports from a 1997 anger management course, a 1998 stopping violence course, a 2001 substance abuse programme;

(f) a 1997 case management plan and a 2004 internal memorandum;

(g) an undated pre-release report to the Parole Board;

(h) consultation with Mr Tamati’s mother.

• [8] It is reasonably clear in the body of the 2006 report which sources are relied upon at particular points.

• [9] The 2007 report states that Mr Tamati expressed uncertainty about participation and wished to take legal advice but was unable to make contact with his lawyer.⁹ Accordingly he chose not to meet with the report writer. He declined to be interviewed for the 2009 and 2010 reports because nothing had changed.¹⁰ The 2010 report states that Mr Tamati provided written consent for the writer to access and use material that could be considered “protected communication[s]” under the Evidence Amendment Act 1980. A good proportion of the passages in the 2007 report are clearly based on the 2006 report, which was one of its sources and was prepared by the same writer. The 2007 report was a source for the 2009 report. The 2009 report was a source for the 2010 report which were also prepared by the same writer.

• [10] Corrections has also provided me with the current Corrections consent form which is rather different from the 2006 form. It states that:¹¹

⁹ Hunter Confidential, Exhibit B at [1].

¹⁰ Exhibit C at [2] and Exhibit D at [2].

11. Hunter Affidavit, Exhibit 2 at 2. The second sentence quoted has a footnote that cites s 59 of the Evidence Act 2006.
    • Information from psychological assessments for the NZPB and the psychological assessment report(s) cannot be used in any future reports to the Courts, unless you give consent. This includes if you go to Court to face future charges.

• If you disclose any information that indicates a serious risk of harm to yourself or others, I will need to disclose this to someone else to prevent or lessen this harm. Where possible, we will talk about this and decide who is best to inform at the time.

• [11] I have an affidavit from Dr Sophie Dickson, a Corrections psychologist.¹² Dr Dickson states that psychologists consider a Psychological Assessment for the Parole Board has two purposes: assessing the individual’s level of risk; and identifying an appropriate rehabilitation/treatment pathway to mitigate the risk.¹³ She states that, when a psychologist meets with an individual to complete an interview for a Parole Board assessment, they advise the person that the purpose of the assessment is to consider their suitability for parole and make recommendations for treatment.¹⁴ She states that a treatment pathway was developed for Mr Tamati as part of the 2006 assessment.¹⁵

Medical privilege law

• [12] Sections 14(1)(i) and 107JA(1)(h) of the Parole Act 2002 require an offender subject to standard release conditions or standard extended supervision conditions to take part in a rehabilitative and reintegrative needs assessment if directed to do so by a probation officer. And s 43 requires the Department of Corrections to provide a report from the responsible clinician concerning the offender in preparation for a parole hearing where the offender is currently detained in or on leave from a hospital. But there appears to be no statutory power for the Parole Board to order a psychological assessment or for offenders to cooperate in their production. Rather, Corrections routinely provides them and offenders usually cooperate, presumably in the interests of being granted parole.

• [13] In 2006, in Complaints Assessment Committee v Medical Practitioners Disciplinary Tribunal, the Supreme Court observed that privilege is an exception to

¹² Affidavit of Sophie Dickson, 4 June 2021 [Dickson Affidavit].

¹³ At [5].

¹⁴ At [6].

¹⁵ At [8].

the general rule that relevant and otherwise admissible evidence can be compelled to be given to a court by a witness or a party.¹⁶ “Privilege arises in respect of relationships in which the public interest in maintenance of special confidence outweighs the public interest in ensuring that the Court has all the information it needs to come to a correct decision”.¹⁷

• [14] In New Zealand, communications from patients that were necessary for their treatment by medical practitioners were made privileged and inadmissible in civil and criminal proceedings, without consent, by statute in 1885.¹⁸ The Supreme Court said “[t]he privilege is a legislative balance between the competing public interests in the administration of justice and the preservation of confidences necessary to obtain proper medical treatment”.¹⁹ This reflected the Law Commission’s expressed policy justification for medical privilege in 1994: to encourage citizens to seek medical attention and communicate candidly with health professionals; and privacy considerations.²⁰

• [15] Section 33 of the Evidence Amendment Act (No 2) 1980 applied before 1 August 2007, when s 59 of the Evidence Act 2006 came into force. Section 33(1) provided that “no medical practitioner and no clinical psychologist shall disclose in any criminal proceeding any protected communication made to him by a patient, being the defendant in the proceeding, except with the consent of the patient”. Section 33(3) defined “protected communication” to mean “a communication made to a medical practitioner or clinical psychologist by a patient who believes that the communication is necessary to enable the medical practitioner or clinical psychologist to examine, treat, or act for the patient” for drug dependency or any other condition or behaviour that manifests itself in criminal conduct. That definition was subject to an exception in s 33(3)(b) not to include “any communication made to a medical practitioner or clinical psychologist by any person who has been required by an order of a Court, or by any person having lawful authority to make such requirement, to submit himself or

16. Complaints Assessment Committee v Medical Practitioners Disciplinary Tribunal [2006] NZSC 48, [2006] 3 NZLR 577 at [13].

¹⁷ At [13].

¹⁸ At [14]. See Evidence Further Amendment Act 1885 (No 14), s 7.

¹⁹ At [17].

²⁰ Law Commission Evidence Law: Privilege (NZLC PP23, 1994) at [305]–[306].

herself to the medical practitioner or clinical psychologist for any examination, test, or other purpose”.

• [16] Applying s 33 in R v Burke, Ronald Young J commented about a lack of clarity as to whether the Parole Board reports there were prepared for the purpose of Mr Burke’s examination or treatment and whether the Board had required Mr Burke to submit to examination.²¹ He gave Mr Burke “the benefit of a modest doubt” and accepted they were privileged.²²

• [17] Now, s 59 of the Evidence Act 2006 provides for privilege in a criminal proceeding in relation to information obtained by medical practitioners or clinical psychologists. Subsection (1) provides:

(1) This section—

(a) applies to a person who consults or is examined by a medical practitioner or a clinical psychologist for drug dependency or any other condition or behaviour that may manifest itself in criminal conduct; but

(b) does not apply in the case of a person who has been required by an order of a Judge, or by other lawful authority, to submit himself or herself to the medical practitioner or clinical psychologist for any examination, test, or for any other purpose.

(1A) For the purpose of applying subsection (1)(b), there is no privilege under this section in relation to any communication or information (other than any previous medical record or other previous medical information about the person) that is made or obtained for the purpose of the examination or test or for the other purpose concerned.

(2) A person has a privilege in a criminal proceeding in respect of any communication made by the person to a medical practitioner or clinical psychologist that the person believes is necessary to enable the medical practitioner or clinical psychologist to examine, treat, or care for the person for drug dependency or any other condition or behaviour that may manifest itself in criminal conduct.

(3) A person has a privilege in a criminal proceeding in respect of information obtained by a medical practitioner or clinical psychologist as a result of consulting with or examining the person to enable the medical practitioner or clinical psychologist to examine, treat, or care for the person for drug dependency or any other condition or behaviour that may manifest itself in criminal conduct.

²¹ R v Burke HC Wellington CRI 2004-085-1315, 27 April 2005 at [30].

²² At [30].

• [18] The test of whether communications are made to examine, treat or care for the person is subjective, depending on the belief of that person.²³ In R v King, the Court of Appeal held reports from a psychologist and a psychiatrist ordered under s 88 itself were not privileged.²⁴ Section 88 imports powers from s 38(2) of the Criminal Procedure (Mentally Impaired Persons) Act 2003 to require an assessment report and to detain a person liable to a sentence of preventative detention for a psychological assessment.

Submissions

• [19] Mr La Hood, for the Crown, seeks orders releasing the four psychological reports to the s 88 assessors, for the purpose of the completion of their further reports, as well as to the Crown and the Court. He does not rely on the s 59(1)(b) exception because of the lack of evidence that the reports were ordered by the Board. And the Board appears to have no statutory power to do so. Instead, Mr La Hood submits the psychological reports prepared for the Parole Board cannot be withheld on the basis of privilege (except for certain redactions) because:

(a) The Crown accepts information in reports by a medical practitioner or clinical psychologist for the purpose of treating Mr Tamati for drug dependency or behaviour that may manifest in criminal conduct are likely to attract medical privilege. But communications made specifically for the purpose of a Parole Board assessment do not attract the benefit of privilege under ss 33 or 59. Such a communication is not made in the belief that it is necessary to enable the medical practitioner or clinical psychologist to “examine, treat, or act for” them under s 33 or “examine, treat, or care for” them under s 59.

(b) Privilege will continue to attach to the portions of a report that refer to material covered by medical privilege. That includes, for example, previous communications made in the belief they were necessary to

²³ R v Parkinson [2017] NZCA 600 at [44].

²⁴ R v King CA 162/05, 18 July 2005 at [32].

enable a medical practitioner or clinical psychologist to examine, treat, or care for them. They should be redacted from any release.

(c) But a psychologist’s clinical judgment making a risk assessment for the Parole Board that relies on unprivileged information, such as a prisoner’s criminal history, prison disciplinary record, performance in prison and response to rehabilitation, would not be covered by medical privilege. That is because a clinical judgement is not “information obtained ... as a result of” consulting with or examining a person for treatment purposes under s 59(3). Rather, it is a conclusion generated. And the conclusions would not have constituted a “protected communication” under s 33 of the previous Act. If the risk assessment does rely on privileged information then it needs to be determined whether the risk assessment is “as a result of” the privileged information. That is a matter of fact and degree. If the examination was not a substantial factor in the overall opinion reached, then the opinion is not obtained “as a result of” the examination.

(d) The last three reports do not attract privilege under s 59 because there was apparently no communication or engagement by Mr Tamati in relation to them. I would need to assess whether they include or rely on otherwise privileged communications.

(e) Section 33, not s 59 of the Act, applies to the 2006 report because that is when the consent form was signed and information imparted. The Act does not retrospectively affect or oust substantive legal rights which existed prior to its introduction.²⁵ Section 59 does not apply retrospectively to information disclosed before it came into effect. In any case, it makes no difference.

(f) Section 33(3) refers to whether the patient “believes that the communication is necessary”. There is no evidence about what

25. Fresh Direct Ltd v J M Batter and Associates (2009) PRNZ 126 (HC) at [31]–[33]; and Todd Pohokura Ltd v Shell Exploration NZ Ltd [2008] NZHC 1190; (2008) 18 PRNZ 1026 (HC) at [75].

Mr Tamati was told or understood then. The consent form signed by Mr Tamati in 2006 makes clear that the information he provided would not attract medical privilege because the essential purpose of the interview was to assess suitability for parole. The fact Mr Tamati was given a treatment pathway after the interview is not enough to give the interview a dual purpose. It is not clear it was on the basis of communications from Mr Tamati and it would have happened irrespective of his participation. The consent form recording that information could be provided to future reports to the Courts puts the issue beyond doubt. Waiving privilege in this context does not require explicit or “informed” consent.²⁶ If the information did attract privilege, the consent form means Mr Tamati has effectively waived it. The current consent form, which takes the opposite position on privilege, is surprising but irrelevant on the facts of this case.

(g) A person asserting privilege must “satisfy” the Court that it exists, which means the Court “makes up its mind”.²⁷ There is no evidential standard of proof required. That is consistent with evaluative judgments of admissibility in relation to whether a propensity exists or evidence should be excluded on the basis of unfairness. It is consistent with the requirement a judge be satisfied there is a prima facie case of dishonesty in order to disallow privilege in s 67 of the Act.

• [20] I offered the Parole Board the opportunity to make submissions about the issues in this case, but it indicated it did not wish to do so.

• [21] Mr Taffs, for Mr Tamati, accepts that no privilege can apply where Mr Tamati did not take part in an interview for a report. But, in relation to the 2006 report, he submits s 59 should be the operative provision, not s 33, because the relevant date is when privilege is asserted and consent sought – which is now. He submits it is far too strict for an “essential purpose” of treatment or care to govern privilege. Rather, he

26. Complaints Assessment Committee v Medical Practitioners Disciplinary Tribunal, above n 16, at [38].
27. R v Leitch [1998] 1 NZLR 420 (CA) at 428 citing R v White (David) [1988] NZCA 55; [1988] 1 NZLR 264 (CA) at 268.

submits that an ancillary purpose would suffice to privilege information. He submits the important point is what Mr Tamati believed and the consent form was a complex document. He also submits that “examination” in s 59 need not only be for the purpose of treatment or care. He submits, once privilege is asserted, it is up to the Crown to rebut it.

Should the reports be released?

• [22] Privilege is an exception to the rule that courts may access admissible evidence. The public interest underlying medical privilege is to encourage people to seek help for medical treatment and psychological disorders.²⁸ As the Supreme Court said in Complaints Assessment Committee v Medical Practitioners Disciplinary Tribunal, that must be balanced against the competing public interest in the administration of justice. As John Dawson stated in a helpful article, communications made by a patient under assessment to a court-appointed assessor would not usually be privileged at all because the patient is not seeking treatment but is being assessed by the Court.²⁹

• [23] The purpose of an assessment is a matter of fact, to be determined in the particular case. And, as both parties accept, it is the perspective of the holder of the privilege that matters. That reflects the policy principle of encouraging people to seek medical and psychological treatment. It is reflected in the references to what the patient “believes” in s 33(3) and s 59(2).

• [24] I accept that ss 33 and 59 require no evidential burden or standard of proof. As the House of Lords said in Blyth v Blyth, “the court either is or is not satisfied upon each point”.³⁰ This is supported by R v Leitch where the Court of Appeal stated:³¹

The need to be ‘satisfied’ calls for the exercise of judgment by the sentencing Court. It is inapt to import notions of the burden of proof and of setting a particular standard.

²⁸ R v Parkinson [2017] NZCA 600 at [34].

29. John Dawson “Medical Privilege and Court-Ordered Psychiatric Reports” (2012) 25 NZULR 239 at 253.

³⁰ Blyth v Blyth [1966] AC 643 (HL) at 676.

³¹ R v Leitch, above n 27, at 428 citing R v White (David), above n 27, at 268.

• [25] I consider that the same applies to ss 33 and 59. Section 33(3) defined protected communications. Sections 59(2) and 59(3) provide that a person has privilege in certain communications made to, and information obtained by, a medical practitioner or clinical psychologist. If a claim of privilege is made, the Court must determine whether it is satisfied that the qualifying conditions are met or not.

• [26] Here, the evidence is that, in 2006, Mr Tamati understood the purpose of the report was to assist the Parole Board to consider his suitability for parole and associated conditions. The consent form he signed indicated he understood the information may be accessed by Corrections staff in deciding not to release him under s 107 and also “for future reports to the NZPB and the Courts”. Other than the consent form, there is no evidence before me of what Mr Tamati believed to be the purpose of the interview. The development of a treatment pathway for him is consistent with the indication in the consent form that the report would inform the management of his case by Corrections staff managing his sentence. It does not indicate that Mr Tamati believed the report was for his treatment.

• [27] On the basis of the content of the 2006 report, and Mr Tamati’s signature of the consent form, I infer that Mr Tamati read the consent form and/or had it explained to him. On the basis of the evidence before me, I am satisfied that Mr Tamati would have believed the purpose of the interview was to assist the Parole Board to consider his suitability for parole and Corrections staff to manage his sentence. I do not consider he would have believed his communications were necessary to enable the psychologist to examine, treat, act for, or care for him, for drug dependency or any other condition or behaviour that may manifest itself in criminal conduct. Accordingly, I do not consider Mr Tamati has privilege in the communications made to the psychologist that are reflected in the 2006 report under s 33(3) or s 59(2).

• [28] I consider s 59(2) to be the operative provision. Both it and s 33(3) provide for the circumstances when a person has a privilege in a criminal proceeding. That suggests that the law applicable at the time of the proceeding which raises the issue is the relevant law. The relevant proceeding here is that which is currently underway, which makes s 59(2) the applicable provision. But whichever provision applies, there is no substantive difference in the result.
• [29] I note that Mr Tamati made no further communications to the psychologists who prepared the other reports so, as agreed by counsel, no further issue of privilege in communications by Mr Tamati arises.

• [30] As far as I can tell, the other sources of information drawn on by the 2006 report are not privileged. I infer that Mr Tamati engaged in the 1997 anger management course, 1998 stopping violence course and 2001 substance abuse programme for the purposes of treatment. But I have no information as to whether he communicated with a medical practitioner or clinical psychologist in relation to them. Corrections will need to check that and advise the Crown Solicitor so that a determination can be made as to whether the 2006 report, or the other reports, contain privileged communications under s 59(2) or privileged information under s 59(3). If they do, Mr Tamati would have to determine whether to consent to their disclosure. I give leave for the parties to seek any further rulings that may be necessary.

• [31] Given the conclusion I have come to, I do not need to consider whether a risk assessment made on the basis of clinical judgment is privileged or not. If I did have to decide that issue, I would agree with the Crown’s submission that the question of whether the risk assessment is made “as a result of” privileged information is a matter of fact and degree. A judgment that relies directly or substantially on privileged information would be made as a result of it.

Result

• [32] After a further check by Corrections, in light of this judgment, that the four psychological reports regarding Mr Tamati do not contain privileged communications under s 59(2) or privileged information under s 59(3) (and redaction of any such information), I order that the reports be released to the s 88 assessors, for the purpose of the completion of their further reports, as well as to the Crown and the Court. I give leave for the parties to seek any further rulings from the Court that may be necessary.

Palmer J