Lawyers of teenage killer Haami Hanara say his diagnosis of fetal alcohol spectrum disorder could be the key to determining if he was fit to stand trial for the 2018 murder of Kelly Donner.
"Day by day, minute by minute, hour by hour Haami doesn't remember what has been said," Clinical neuropsychologist and FASD specialist Dr Valerie McGinn said while giving evidence at a Court of Appeal hearing in Wellington today.
"Him being a blank slate every time, leads me to believe at the age of 14 when he was two years younger, the likelihood from my opinion was that he was unfit to stand trial."
McGinn did say, however, that fitness would ultimately be determined by the court.
McGinn assessed Hanara's neurological impairment and disability when he was 16 and in the care of a youth offender facility.
Hanara is appealing against his conviction on the grounds that he was unfit for trial.
Hanara was 14 when he and four other youths went to the Flaxmere Tavern in Hawke's Bay on March 4, 2018, with the intent to burgle it.
The group attacked Donner, with Hanara stabbing him four times in the upper chest and neck, severing the homeless man's carotid artery.
He and his co-offenders continued to assault Donner, who later died from blood loss.
Hanara was found guilty of murder in the High Court at Napier that year, and in February 2019 was sentenced to life imprisonment with a non-parole period of 10 years.
His legal team believes his neurological disabilities, including FASD, should have rendered the teen unfit to stand trial.
Specialists assessed him before the trial and agreed he was mentally impaired, including an "alcohol-related neuro-development disorder", attention deficit hyperactivity disorder (ADHD) and intellectual disability.
Clinical psychologist Dr Duncan Thomson yesterday was reluctant to agree that Hanara definitely had FASD, though agreed he met the "diagnostic criteria" for it.
Giving evidence yesterday, he said none of the consequences of FASD were unique to it. They were consequences also seen in children who were traumatised, poorly educated, and grew up with neglect.
He did not have the confidence to say FASD was the single cause of Hanara's difficulties.
The court heard today that Hanara had severe language and memory problems, couldn't read or write, and had the vocabulary of a 7-year-old.
Three doctors gave evidence and spoke about Hanara's disabilities.
McGinn said that Hanara, who as a 14-year-old was developmentally 8, was unfit to stand trial.
"His capacity at the best of times to think through consequences would be very poor and at the worst of times negligible," she said.
McGinn said FASD causes low tolerance to stress, and as complexity increases, the ability to respond in stressful situations decreases.
Psychiatrist Dr Craig Immelman, who assessed Hanara in 2021 when he was charged for escaping custody in 2020, found he was unfit to instruct a lawyer or construct a defence.
His findings led to police dropping the charge.
Links between Hanara's fitness then, and his fitness during the murder trial three years prior, were made by one of his lawyers, Kingi Snelgar, who said a High Court murder trial was far more complicated than a lesser charge of escaping custody.
The impacts of FASD were discussed at length during the hearing, in particular its impacts on Hanara and his diagnosed intellectual disabilities.
Immelman said, in his view, it was "incontrovertible" the science behind FASD was settled, and Hanara's diagnosis was clear.
Snelgar asked Immelman if FASD impacted decision-making, particularly under pressure, and consider the consequences of their actions.
Immelman said when assessing Hanara last year, whakapapa and background were a large focus, and cultural considerations are often overlooked at the assessor's peril.
"There is a deficit of health assessors but even more so in Māori and Pasifika health assessors which I find frankly shameful."
Immelman said brain damage caused by FASD on the frontal lobe can impact brain functions such as sequencing, planning and consequences.
Hanara's apprehension and evidence during the four-day trial also came into question and Communication Assistant and Speech and Language therapist Dr Julia Wright said the process is inherently complex and demanding.
She said it was common that there was a lack in confidence for young people to express their needs and the context of a trial can be draining and complex.
The hearing will continue tomorrow.