R v Armstrong
[2014] NZHC 3150
•10 December 2014
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2013-092-2073 [2014] NZHC 3150
THE QUEEN
v
BYRON ARMSTRONG
Hearing: 10 December 2014 Appearances:
B R Northwood for Crown
R M Mansfield for DefendantJudgment:
10 December 2014
(ORAL) JUDGMENT OF LANG J [as to finding of insanity]
R v ARMSTRONG [2014] NZHC 3150 [10 December 2014]
[1] Mr Byron Armstrong faces a charge of murder. I have now been asked to record a finding under s 20(1) of the Criminal Procedure (Mentally Impaired Persons) Act 2003 (the Act) that Mr Armstrong is not guilty of the charge on account of his insanity.
Background
[2] The background facts giving rise to the charge are not in dispute. They are
contained in a summary of facts prepared for the purpose of today’s hearing.
[3] This records that at about 10 pm on the evening of Friday 15 February 2013, Mr Armstrong left his home carrying a large kitchen knife. He went to the address of his victim, who had been his friend since school days. Mr Armstrong approached the front door of the property, and smashed a glass panel to gain entry into the house.
[4] The victim confronted Mr Armstrong near the entrance to the address, and the two men became involved in a wrestling match. Mr Armstrong then used the kitchen knife to repeatedly stab the victim in the neck. One of the stab wounds entered the victim’s throat and went right through his neck. The victim was pronounced dead by ambulance staff, who were called to the address.
[5] After leaving the address, Mr Armstrong returned to his home. He did not alert the ambulance or other emergency services as to what had happened to his friend. He then attempted to take his own life by cutting his wrists and his stomach. He then got into his motor vehicle and drove at speed into a lamp standard before colliding with the deck of a residential property. These actions led to the charge of murder.
The law
[6] The law of insanity in New Zealand is governed by s 23 of the Crimes Act
1961, which relevantly provides as follows:
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 when labouring under natural imbecility or disease of the mind to such an extent as to render him incapable—
(a) Of understanding the nature and quality of the act or omission;
or
(b) 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 did or omitted the act, and insane delusions, though only partial, may be evidence that the offender was, at the time when he did or omitted the act, in such a condition of mind as to render him irresponsible for the act or omission.
…
[7] The starting point, encapsulated in s 23(1), is that every person who commits an offence is presumed to be sane until the contrary is proved. The onus is therefore on a defendant to establish on the balance of probabilities that he or she was insane in terms of s 23 at the time of committing an offence.
[8] Two elements need to be established. First, the defendant must prove that he or she was suffering from a disease of the mind at the time the offence was committed. Secondly, he or she must establish that the disease meant that he or she was incapable of knowing the nature and quality of the act constituting the offence at the time the offence was committed. Alternatively, the defendant must establish that he or she was incapable of knowing that the act was morally wrong having regard to the commonly accepted standards of right and wrong.
The evidence
[9] In anticipation of today’s hearing, I have been provided with detailed reports from two well regarded and experienced forensic psychiatrists. The defence instructed Dr James Cavney, a forensic psychiatrist employed at the Mason Clinic in Auckland. The Crown instructed Dr Graham Mellsop, a Professor of Psychiatry at the Auckland University.
Dr Cavney
[10] Dr Cavney has produced a report in which he opines that Mr Armstrong was legally insane at the time that he committed the act giving rise to the charge.
[11] In preparing his report Dr Cavney has had access to Mr Armstrong’s medical records. These show that Mr Armstrong first presented with mental health issues in October 2006. In December 2007, he was diagnosed as suffering from an unspecified form of psychosis or schizophrenia. He then received treatment for that condition between 2008 and 2013.
[12] Dr Cavney notes that in a statement that he made to the police, Mr Armstrong said he had developed a grievance with his friend after his friend had beaten him in an online or electronic war game. It appears that participation in games such as this were a significant feature in Mr Armstrong’s life. Mr Armstrong told the police that this became an obsession with him to the point where Mr Armstrong believed that the victim was a demon. He said that in the weeks leading up to the incident he heard his friend’s voice “from all over the place” taunting him. This followed a six month period during which Mr Armstrong had been hearing voices that had incrementally instructed him to do various things such as to smash objects. He obeyed these instructions and this led to him smashing his collection of stones and crystals, university books and books about crystals. The voices had also told Mr Armstrong to kill his tropical fish, and he had obeyed this instruction. He had also smashed a tiki necklace that he believed would turn him into something evil. He also believed that his Baptism candle was evil, and he had broken this as well.
[13] During the weeks leading up to the killing, Mr Armstrong said that he began hearing another voice telling him to kill the victim. He attempted to resist this instruction. The voices began to tell him that if he did not kill the victim he would not be a good person. Mr Armstrong decided to take advice about this and sought advice from a religious sect. It appears that this source of advice left him undecided as to what he should do, and he was then required to make his own decision.
[14] On one occasion about four weeks prior to the incident, Mr Armstrong had driven to his friend’s house armed with a knife. By that stage he felt that he had no choice but to kill his friend. On that occasion, however, he had been able to resist the commands from the voices to kill his friend. He said he did not wish to kill his friend, and had begun making plans to go to Australia because he felt that if he stayed in New Zealand he would have no option or choice but to obey the voices.
[15] On the day in question, Mr Armstrong said he felt compelled by the voices to go and kill his friend. He said that his mind told him to turn around, but his body kept on going. When he entered his friend’s house, he felt that it was both necessary and morally right for him to kill the victim in order to slay a demon. After killing his friend Mr Armstrong said he felt as though he had failed, because he had felt remorse for the victim and that this could be seen as a sign of weakness by the voices. He viewed these as having high moral authority over him. He said he had initially thought of calling an ambulance, but concluded that this was not justified for a demon. He then attempted to kill himself because he had failed the morale test by being partially remorseful “even though I still thought I had done the right thing”. Although Mr Armstrong said he believed he had been justified in slaying a demon, he said he knew the world would not understand. He also said that his family would be unfairly stigmatised for his act.
[16] Dr Cavney says there has been a striking consistency in Mr Armstrong’s symptoms since he first disclosed his condition in October 2006. These were articulated to Mental Health Services by Mr Armstrong’s family on several occasions, most notably in October 2013 just months before the incident giving rise to the charge. Common themes in Mr Armstrong’s psychosis include persecutory delusions, delusions of control, delusions of misidentification and command and derogatory auditory hallucinations. Dr Cavney says there are disturbing clues that Mr Armstrong was heading towards serious violence, although he was motivated to obfuscate his symptoms from both his family and clinicians. This was partially due to his lack of insight and desire not to have to take medication, but was also related to his struggle with profound spiritual dilemma.
[17] Dr Cavney also considers that Mr Armstrong’s version of the events leading up to the killing has essentially remained unchanged, and has been consistent over a number of assessments since the time of his arrest. He reported florid hallucinatory experiences and paranoia to detectives shortly after his arrest. He also presented as floridly psychotic to Dr Cavney in his initial assessment and thereafter when he was admitted to an acute psychiatric mental health unit.
[18] Dr Cavney says Mr Armstrong has an established diagnosis of schizophrenia, paranoid subtype. This constitutes a disease of the mind for the purpose of s 23 of the Crimes Act 1961. Dr Cavney accepts that Mr Armstrong appears to have had a high degree of premeditation to kill the victim, including the fact that he took a knife from his home on the night in question with the specific intent of killing him. For that reason he would appear to have had an awareness of the nature and quality of his proposed act on a superficial level. Dr Cavney explains this, however, in the following way:
However in Mr Armstrong’s mind at the time of the offence, I am of the view that he believed with delusional intensity … that the victim had been replaced or possessed by a demon. As noted above, this would represent a specific type of delusion (a delusion of misidentification) that is known to be correlated with acts of violence. Holding this delusion in and of itself would not necessarily prevent someone from acting in a normal or lucid way in other respects, such as driving, following the road rules etc. In my opinion, therefore, I do not think he was fully aware of the fact that he was killing a human being. Arguably he knew the nature of the act was related to killing something. However, in his mind the quality of the act reflected his delusional belief that he was killing a demon and not a human being.
[19] During oral evidence before me, Dr Cavney amplified these conclusions. He confirmed that he considers Mr Armstrong knew the nature of his act because he knew that he was killing something. However, he did not know the quality of the act because he believed he was killing a demon rather than a human being. On that basis, Dr Cavney considers the first limb of s 23 is satisfied.
[20] In terms of whether Mr Armstrong was also incapable of knowing his act was morally wrong having regard to the commonly accepted standards of right and wrong, Dr Cavney observes that this presents challenges in the present case. He says it is “difficult to know where to draw a commonly held reference point to the act of slaying a demon.” Dr Cavney favours the formulation that Mr Armstrong was
satisfied that he had done the right thing but appreciated that others would not understand. In his report he says that having reached the point where he believed the victim was a demon, Mr Armstrong would on the balance of probabilities have also felt morally justified in terminating the object of his torment. Dr Cavney therefore concludes that Mr Armstrong was incapable of appreciating that his act in killing his friend was morally wrong having regard to commonly accepted standards of right and wrong.
[21] During oral evidence today, Dr Cavney expanded this aspect of his report. He confirmed that several factors influenced him in reaching his conclusion. The first was Mr Armstrong’s compulsion to become involved in electronic war games and the type of morality that is typified in such games. Secondly, he points to the fact that Mr Armstrong sought guidance from a religious group regarding the morality of slaying a demon. When this did not provide him with definite guidance, he became influenced by the auditory hallucinations that he took to be from a higher moral being. He viewed the instructions by these voices as being instructions that were morally right having regard to the high morality of the being that planted the voices in his mind. These factors led Dr Cavney to conclude that the second limb of s 23 is also satisfied. As a result, Dr Cavney believes that Mr Armstrong was legally insane in terms of s 23 based on both limbs of the section.
Dr Mellsop
[22] Dr Mellsop has considered all of the background material that Dr Cavney took into account in giving his opinion. He has also read Dr Cavney’s report. Dr Mellsop agrees that Mr Armstrong has suffered intermittently from schizophrenia since about 2006. He says that Mr Armstrong has very obviously demonstrated a variety of auditory hallucinations, paranoid delusions, peculiar mannerisms, effective flattening and difficulties with his thinking. He has become progressively more socially isolated and, on occasions in the past, has behaved aggressively or inappropriately. Dr Mellsop concludes:
1] At the time of the assault on [the victim] on February 15th 2013, Byron Armstrong was suffering from schizophrenia, which though much less visible or florid than both before and after, was of such a degree as to be a disease of the mind. At that time he was fully aware of the nature and
quality of his actions. He also had some awareness that the Community might consider the killing of [the victim] as morally bad, but such was the severity of his schizophrenia at that time that he was unable (incapable of) to take sufficient account of that awareness and it was overwhelmed by his psychotic processes (hallucinations and thought disorder) which were instructing him to kill [the victim] and interfering with his ability to apply normal logic. This poses a challenge to how part (b) of section 23 of the Crimes Act of 1961 is to be interpreted, but in my opinion, on the balance of probabilities, Byron Armstrong was legally insane at that time.
[23] During oral evidence before me, Dr Mellsop said that he is of the view that Mr Armstrong knew the nature and quality of his act at the time that he killed his friend. He does not place the emphasis that Dr Caveny does on the impact of electronic war games or on Mr Armstrong’s statements that he believed he was slaying a demon. Dr Mellsop believes that Mr Armstrong knew both that he was killing something, and that the thing that he was killing was his friend. That is insufficient to satisfy the requirements of s 23(a).
[24] Dr Mellsop considers, however, that Mr Armstrong suffers intermittently from an inability to distinguish between what is right and wrong in terms of s 23. He places great emphasis on the disorder in Mr Armstrong’s thought processes at this time. He takes the view that, at the time that he killed his friend, Mr Armstrong did not know that what he was doing was morally wrong having regard to commonly accepted standards of right and wrong.
Decision
[25] The Court must of course make its own assessment of the issue taking into account the evidence before it. Based on the evidence of the two psychiatrists, I have no hesitation in concluding on the balance of probabilities that on 15 February
2013 Mr Armstrong was suffering from schizophrenia, which is now well recognised as a disease of the mind for the purposes of s 23.
[26] I have greater difficulty in determining whether or not he knew the nature and quality of his act. I have no doubt that he knew the nature of his act in that he was clearly aware that he was killing something. The issue is whether he believed that he was slaying a demon as Dr Cavney postulates, or whether he knew he was killing his friend as Dr Mellsop believes.
[27] Though the matter is finely balanced, I take the same view as Dr Cavney in relation to this issue. The background to the killing leads me to the conclusion that Mr Armstrong genuinely believed that he was killing a demon at the time that he stabbed his friend to death. For that reason, I take the view that he knew the nature but not the quality of his act. The first limb of s 23 is accordingly satisfied.
[28] In case I am wrong on that point, I turn to consider whether the second limb is satisfied. On this point both psychiatrists agree, albeit for slightly different reasons. Both say that the second limb is satisfied. I agree with that assessment. I accept that Mr Armstrong had some appreciation from time to time regarding the fact that it was morally wrong to kill another person. I accept Dr Mellsop’s conclusion, however, that Mr Armstrong’s thought processes on the evening of 15 February 2013 were so disordered that he had no ability to appreciate that killing his friend at that time was morally wrong having regard to commonly accepted standards of right and wrong. It follows that I have concluded, like the psychiatrists, that the second limb of s 23 is also satisfied.
[29] I therefore record a finding in terms of s 20(1) of the Criminal Procedure (Mentally Impaired Persons) Act 2003 that Mr Armstrong is not guilty of the charge of murder on account of his insanity.
Disposition
[30] Having reached this view, it is necessary to consider what consequential orders should be made. These are governed by ss 23 to 28 of the Act.
[31] The available options under s 24(2) are detention in a hospital as a special patient under the Mental Health (Compulsory Assessment and Treatment) Act 1992 or detention in a secure facility as a special care recipient under the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003.
[32] Section 24(1) of the Criminal Procedure (Mentally Impaired Persons) Act
2003 requires the Court to take into account all of the circumstances of the case, as well as the evidence of the psychiatrists in relation to the nature of the orders that may be appropriate. The Court is also required to consider whether such orders are
required in the interests of the public. In M (CA 819/2011) v R, the Court of Appeal held that in determining whether to make an order under s 24(2), the Court undertakes a judicial assessment that is wider in some respects than the medical assessments made by health assessors.1 The Court went on to observe:
[7] … It must determine whether an order under s 24(2) is necessary in the interests of the public. 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.
[8] The Court must therefore take into account both the immediate and long term risks that the offender poses, as well as the need to comprehensively manage and treat any medical and/or personality issues that he or she presents. In this way the interests of the public will be properly protected. In R v Rangi (No 2), Heath J put it this way:2
The way in which a Court should approach an assessment of what order ought to be made involves the assessment of societal safety concerns, the risk of further safety concerns arising out of the management of a medical problem and the need for the person before the Court to be treated in a manner which will enhance his or her rehabilitation and the prospects of reintegration into the community at the earliest possible time.
[33] The nature and severity of Mr Armstrong’s illness, together with the tragic consequences it has already produced, mean that a cautious approach is obviously required in the present case. The community cannot be placed at risk again until such time as the authorities are confident that Mr Armstrong’s illness has been treated to the point where he no longer presents as a risk to the community.
[34] Both psychiatrists consider that the only realistic option is for the Court to make an order requiring Mr Armstrong to be detained as a special patient. I agree. That is the only way in which the interests of both Mr Armstrong and the community can be properly protected. Such an order will require Mr Armstrong to be detained indefinitely in a hospital until such time as the Minister of Health, acting on the advice of medical professionals, is satisfied that continued detention is no longer necessary to ensure the safety of the public. No other option is realistically available
in the present case given the risk to the public that Mr Armstrong presents.
1 M (CA 819/2011) v R [2012] NZCA 142 (2012) 28 FRNZ 773 at [7].
2 R v Rangi (No 2) HC Rotorua CRI-2005-019-3496, 9 March 2006 at [57].
[35] I therefore make an order under s 24(1)(c) of the Criminal Procedure (Mentally Impaired Persons) Act 2003 Act that Mr Armstrong is to be detained in a hospital (in this case the Mason Clinic) as a special patient under the Mental Health
(Compulsory Assessment and Treatment) Act 1992.
Lang J
Solicitors:
Crown Solicitor, Auckland
Counsel:
R M Mansfield, Auckland
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