R v B HC Whangarei CRI-2006-088-2445

[2007] NZHC 1414

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CRI-2006-088-2445

THE QUEEN

v

B

Hearing:         10 December 2007

Appearances: Mr P J Magee and Ms A Patterson for Crown

Mr A Fairley and Mr Leader for Accused

Judgment:      10 December 2007

(ORAL) JUDGMENT OF LANG J

Solicitors:

Crown Solicitor, Whangarei

Thomson Wilson, Whangarei

R V B HC WHA CRI-2006-088-2445  10 December 2007

[1]      The Crown Solicitor at Whangarei has presented an indictment against Mr Ryan B   alleging that on or about the 19th  day of June 2006 at Towai he committed arson and murdered Arihia Faulkner.   Through his counsel today he has indicated that he wishes to enter a plea of not guilty on the grounds of insanity to both charges.

[2]      I am now required to determine an application by Mr B   under s 23(2) of the Criminal Procedure (Mentally Impaired Persons) Act 2003 for an order that he be acquitted on the grounds that he was insane at the time that he committed the act that has led to both charges.

[3]      In order to set the context for the present application it is necessary to set out briefly the factual background to the alleged offending.   This is not in dispute, and is contained in a concise summary of facts that was tendered to me by consent at the hearing today.

Factual background

[4]      In June 2006 Mr B   was living with his family at a residential address in Akarama Road, Towai.   His parents lived at that address, as did two of his siblings.   Also present at the address at that time was a 22-year-old female called Arihia Faulkner.   She was a close friend of the family, and I take it that she was very much part of Mr B  ’s extended family.

[5]      On the evening of 18 June 2006 all of the people in the house went to bed before midnight.    In the early hours of 19 June the family awoke because the fire alarm went off.    They then found that the house was on fire.    The fire had taken considerable hold.   All of the members of the family were able to vacate the address. Despite valiant attempts by Mr B  ’s father, however, Ms Faulkner was not able to be rescued and she died in the fire.

[6]      Mr B  ’s father had also been entering the house trying to locate his son Ryan.     He did not know that Ryan had departed the scene in a vehicle

belonging to his mother.    Mr Ryan B   travelled to Auckland in that vehicle and was located by the police the next day.   When he was spoken to by the police about the incident, he readily admitted that he had set fire to the house.   The inference to be drawn from the remarks that he made to the police at that time was that his intention in setting fire to the house was to kill his father on account of alleged misconduct by his father against himself and other members of the family in the past.

[7]      I interpolate to say that it is common ground that the fire was started by Ryan B  .    He poured no less than two cans of petrol around the property before setting it alight and departing from the scene.

[8]      On its face, this appears to have been a deliberate act that must have had at least some degree of planning and foresight.  The deliberateness is shown by the fact that Mr B   obtained petrol from not one, but two, sources.    He then poured the petrol at strategic points around the house, particularly in the area of his father’s bedroom.     He then departed the scene before his actions were detected, taking with him some possessions that he appeared to have gathered in advance.   He then left the district and did not return until such time as he was located by the police.

[9]      The events that occurred on 18 and 19 June need, however, to be placed in proper context.   That context can be found from the circumstances that led up to this tragic event, as well as those that followed thereafter.

The circumstances leading up to and following the events of 19 and 20 June

2006

[10]     It seems that Mr B   led a relatively normal life until late 2004, when he was involved in a serious motor vehicle accident.   This left him with a very significant head injury, and his parents began to notice some months after the motor vehicle accident that his behaviour began to change.     His behaviour became of sufficient concern to his family that they arranged for him to be placed within a mental facility for diagnosis and treatment.    He remained within that facility for

some time until he appeared to be complying with directions to take prescribed medicines that were necessary to treat his condition.    He was then discharged into the care of his family.   It appears, however, that his behaviour became increasingly bizarre during 2006.    He appeared to be withdrawn.    He would often stare into space and he also apparently would talk or respond to non-apparent stimuli.

[11]     Shortly before the incident on 18 and 19 June, he began drawing pictures on the walls of his room.   He also began to light small fires around the family property. Some of his father’s property was found in the charred remains of these fires.    At about this time, he also began to steal money and other things, principally from his family.    He began to indulge in alcohol and drink to excess.    This in turn would exacerbate his behaviour to the point where his family described it as bizarre in the extreme.

[12]     On the evening in question his family observed that he had been giggling and talking noisily.   They had to speak to him because he continued to make noise after the rest of the family had gone to bed.

[13]     By this  stage  Mr  B    had  been  diagnosed  as  suffering  from schizophrenia.     It may also be the case that his intake of cannabis and alcohol exacerbated his condition but, quite clearly, there was a diagnosed history of schizophrenia as at 18 June 2006.    He had continued to take medication after his discharge from the mental facility, and his medication had in fact been changed on at least one occasion in order to combat side effects that his parents had noticed.

[14]     After Mr B   left the address he drove to Auckland.   There his vehicle ran out of fuel on the motorway.    He abandoned it and walked for a short distance before being picked up by the police.   He gave them a false name and they delivered him to an address in South Auckland.   He then proceeded to “live rough” until he was picked up the following day by the police in connection with the present incident.

[15]     In July 2006  Mr  B    was  remanded  to  the  Mason  Clinic  in

Auckland by order of the Court.   He has remained in secure care at that clinic from

July 2006 until the present day.   Throughout this period the professional staff at the Clinic have treated him on a regular basis.   He was observed to be acutely unwell at the time that he was admitted in July 2006.    Extensive medication since that time has only marginally improved his condition.   It is quite clear that at the time of his admission to the Mason Clinic Mr B   was severely affected by his schizophrenia.

[16]     It  is  within  that  overall  context  that  the  present  application  falls  to  be considered.

The present application

[17]     Under s 20(2) of the Act the Court is required to enter a finding that a defendant is not guilty on account of his or her insanity if:

a)        The defendant indicates that he or she intends to raise the defence of insanity; and

b)The prosecution agrees that the only reasonable verdict is not guilty on account of insanity; and

c)        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.

[18]     In the present case the first two conditions are satisfied.   Mr B   has indicated, through his counsel, that he intends to raise the defence of insanity. The Crown accepts that the only reasonable verdict is the present case is one of not guilty on account of insanity.     It is therefore the third element that I must now consider.

[19]     This is an important matter because it requires the Court, independently of the attitudes taken by the Crown and the accused, to reach its own conclusion as to whether or not an accused person was insane within the meaning of s 23 of the Crimes Act 1961 at the time of the commission of the offence.   It is important that

the Court not be seen to be a mere “rubber stamp” for the views expressed by professionals or, indeed, by the Crown and the defence.     That is an important safeguard because our criminal justice system generally requires crimes such as this to be determined by a jury and not by a Judge sitting alone.   It is equally important, however, that in appropriate cases persons who intend to raise a defence of insanity be permitted to have that issue determined in an expedited form before a Judge rather than going through the ordeal of a trial by jury.

Was Mr B   insane at the time that he set fire to the house on

19 June 2006?

[20]     Section 23 of the Crimes Act 1961 provides:

(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.

[21]     In determining these issues the Court is entitled to have regard to s 23(3), which provides:

(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.

[22]     In the present case, it is clear that Mr B   was suffering from a disease of the mind, namely, schizophrenia as at 19 June 2006.   As I have said, in fact that diagnosis was made well before June 2006.   Mr B   had been receiving treatment for schizophrenia since late 2004.   Schizophrenia is a recognised disease of the mind.

[23]     The first limb upon which a finding of not guilty on the grounds of insanity can be reached is that contained in s 23(2)(a).     The onus is on the accused to demonstrate that it is more likely than not that the disease of the mind was such as to render him incapable of understanding the nature and quality of the act or omission.

[24]   In the present case I have received evidence from two distinguished psychiatrists, both of whom have been responsible for treating Mr B   for some time.   Both psychiatrists have presented detailed reports to the Court.   In the case of Dr Goodwin, the Deputy Director of the Mason Clinic, he has presented numerous reports to the Court as this matter has proceeded through earlier stages of the criminal justice process.   Dr Goodwin has also given evidence orally before me this morning to supplement his written report.

[25]     I  have  also  received  an  affidavit  from  Dr  Sandy  Simpson,  the  Clinical Director of the Mason Clinic.   He, too, has examined Mr B   and has had regard to all relevant documentary material relating to his diagnoses and treatment between 2004 and the present time.

[26]     Both  psychiatrists  consider  that  the  circumstances  in  which  Mr  Brown- Howarth came to light the fire were such that he would probably have appreciated the nature and quality of the act that he was committing.   For that reason I find that insanity is not an available defence in terms of the first limb contained in s 23(2) of the Act.

[27]     The second limb is that contained in s 23(2)(b).   Under this limb the accused must satisfy the Court that it is more likely than not that he did not know that the act in question was morally wrong, having regard to the commonly accepted standards of right and wrong.

[28]     At first glance there is some evidence to support the proposition that Mr B   may have known that what he was doing was morally wrong.   I am referring here to the evidence that suggests that Mr B   immediately left the scene of the fire in his mother’s vehicle.   That action could indicate that he was fleeing from the scene of the crime, and that he therefore had some knowledge that

what he had done was morally wrong having regard to commonly accepted standards of right and wrong.

[29]     This act must, however, be considered in context and not in isolation.     I consider that Dr Simpson neatly encapsulates the significance to be given to it in the following passage from his report dated 6 December 2007:

The question of insanity thus rests on what his motivation for these actions was.   There is an incomplete evidential picture in relation to this question as he has only given a patchy account of his actions and motivations.   I note, however, that he has a history when acutely unwell of expressing a desire to set light to a house for delusionally motivated reasons.   I also note that there are multiple reports of his holding delusional ideas about his father, noted prior to and after the alleged offence.   His statements to the police officers that his father deserved to die for maltreating others is a belief that appears to have no basis in fact, suggesting this is a motivation arising from a morbid illness  process.      Thus  there  appears  to  be  evidence  of  his  holding persecutory beliefs regarding his father, and has spoken previously of using fire in relation to other psychotic beliefs.   There is no evidence of his having animosity towards the victim.   There is no account of his having any reason to be angry at others, and no other apparent motivation for his actions other than ones related to illness process.

On this basis, it seems on the basis of reasonably medical certainty that his actions  were  motivated  by  delusions  regarding  his  father,  and  possibly others.   The precise nature of this motivation is uncertain, but his statements to the police suggest that he had homicidal intent on the basis of delusional ideation about them.   Thus whilst I believe it is likely that he was unable to know the moral wrongfulness of his actions having regard to the commonly held standards of right and wrong, I am unable to be certain of this in the absence of his giving a full account of his motivation.

I note however that Section 23(3) states that “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.”

In this case, there is clear evidence that he had ‘insane delusions’ before and after the alleged offence, and that his condition of mind can only be seen as grossly disturbed at the time of the alleged offence.     There is no other coherent explanation for his behaviour.

Taken together, I believe it is reasonable to conclude that he has a defence of insanity available to him.

[30]     Dr Goodwin agrees with this conclusion.   During evidence before me today I asked him to place Mr B  ’s actions in leaving the property within context.   In response, he said this:

Its not too uncommon for psychotically motivated people to behave in ways in which one can infer that they’re fully in control of their thoughts or actions.   In this situation Mr B   while he got in the car and drove off he didn’t appear to have any particular destination in mind, he ran out of petrol and was hitchhiking on the southern motorway.    When I’ve attempted to question him as I’ve done on many occasions around his behaviours at that time he’s really been unable to give any sort of coherent account of what he was planning when he got in the car, where he was planning to go, what he was planning to do once he left the scene.   To me that fitted quite well with the level of disorganisation we saw when we observed him in the hospital in that he would randomly begin to do things and then walk away from them he was unable to plan appropriately and to carry out any sort of complex action based on any planning.   My opinion is that him getting in the car and driving off aimlessly was really just part of his overall psychotic picture.   My suspicion is that the fire was lit on the basis of delusional beliefs although I can’t be 100 percent certain of that.    It’s certainly a reasonable inference and given that he left the scene in a disorganised way that too fits with his being psychotic.

[31]     I consider that these opinions fit neatly with the evidence that is available in relation  to  the incident  that  has  given  rise  to  the  charges.      The  only realistic explanation  for  Mr  B  ’s  actions  is  that  he  was  suffering  under delusions at the time that he lit the fires.   His state is likely to have been such that he would have been incapable of knowing that what he was doing was morally wrong, having regard to commonly accepted standards of right and wrong.

[32]     In those circumstances I have reached the conclusion that the psychiatrists are correct and that Mr B   was insane within the meaning of s 23 of the Crimes Act 1961 at the time that he lit the fire that led to Ms Faulkner’s death.    I therefore make that finding and direct that a verdict of not guilty on the grounds of insanity be entered in relation to both charges.

Disposition

[33]     This leads me to the issue of disposition.     This is often a more difficult exercise than the finding of insanity itself.     In the present case, however, both doctors are in complete agreement.   They are of the view that Mr B   remains  very  unwell  and  that  he  will  need  to  be  cared  for  within  a  secure environment for some considerable time in the future.

[34]     The only way in which that can properly be achieved is by making an order that he be detained as a special patient under s 24(2)(a) of the Act and I make an order accordingly.

Name suppression

[35]     Up until now Mr B  ’s name has been suppressed by interim order of the Court.   Mr Fairley asks that that order be continued.   He has referred me to a number of authorities in which this issue has been considered.    In some cases the Court has refused to suppress the name of the offender on the basis that it is important for the transparency of justice that the identity of an offender be known even  though he  or  she  has  been  acquitted  on  grounds  of  insanity.      Generally speaking the courts have only made a final order for suppression of name in circumstances where publication of the name may have a material impact on the rehabilitation of the offender.

[36]     During evidence this morning Dr Goodwin confirmed that in his view there would be no material prejudice to Mr B  ’s continued treatment if the order for interim suppression was to lapse.    I consider that it is important for the transparency of the criminal justice system that an offender’s name be published unless there is good reason for that not being done.   I do not consider that any such reason has been advanced in the present case and I therefore decline to make an order for final suppression of Mr B  ’s name.

[37]     The interim order for suppression of his name will accordingly lapse.

Lang J