R v Boyle
[2021] NZHC 1276
•1 June 2021
IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY
I TE KŌTI MATUA O AOTEAROA WAIHŌPAI ROHE
CRI-2019-025-002088
[2021] NZHC 1276
THE QUEEN v
JOSEPH KEVIN BOYLE
Hearing: 31 May 2021 and 1 June 2021 Appearances:
R Donnelly for the Crown
J M Ablett-Kerr QC and N M Laws for the Defendant
Judgment:
1 June 2021
ORAL JUDGMENT OF NATION J
[1] Joseph Kevin Boyle is charged that on 8 December 2019 he murdered James Aaron Clark. The defence and the prosecution have asked the Court to record a finding under s 20(1) of the Criminal Procedure (Mentally Impaired Persons) Act 2003 that Mr Boyle is not guilty of the charge on account of his insanity.
[2] After a hearing on 28 April 2021, Mander J, in a judgment of 6 May 2021, held Mr Boyle is fit to stand trial.
[3] For the Court to return a verdict of not guilty by reason of insanity, the Court must first be satisfied that the defendant carried out the acts necessary for the crime of murder to be committed, in this case, that Mr Boyle killed his step-brother, James Clark.
R v BOYLE [2021] NZHC 1276 [1 June 2021]
[4] The prosecution evidence was put before the Court through a number of witness statements. The defence did not require any of the witnesses to be available for cross-examination. The evidence from the witnesses was not challenged in any way.
[5] Mr Donnelly for the Crown helpfully highlighted relevant aspects of that evidence.
[6] On 8 December 2019, Mr Boyle was 30 years of age. He was sharing his home with his step-brother James Clark who was aged 19 and his brother Jamie Boyle. James Clark sent a Facebook message to a friend at 8.31 pm. At 8.39 pm, Mr Boyle made a 111 call to the Police. They asked him what was going on at the address. Mr Boyle said “he’s cut himself”. He told the Police to come and help, that it was serious, and that someone was on the ground bleeding.
[7] When the Police arrived at the house, they said “Police, come out”. Mr Boyle came out of the house. A Police officer described him as having “really wide eyes and looked as though he was looking straight through us. He appeared really calm.” Mr Boyle told the Police that the person was dead and he knew this because his head was off. Mr Boyle told the Police there was a hammer and knife in the house and the only person in the house was his step-brother James Clark. After Mr Boyle had been given his Bill of Rights advice, a constable placed handcuffs on Mr Boyle’s wrists. The constable asked Mr Boyle if he was alright. Mr Boyle replied “yeah I’m good thanks” in a really perky tone that the constable thought was really weird. Mr Boyle had blood on his shoes and on his pants. The constable described Mr Boyle’s demeanour throughout as very calm and unemotional.
[8] Police officers checked through the rooms in the house and places outside. In one of the bedrooms they saw the body of the person later identified as James Clark. There was a lot of blood on the ground and his head looked to be detached from his body. Lying on the carpet beside the head was a club hammer and a knife. It was a white handled butchers knife, commonly used in the meat industry.
[9] ESR and Police examination of the scene identified significant blood spatter in the bedroom consistent with a severed artery. There were blood stains in the bathroom. Luminol testing revealed evidence of blood shoe impressions consistent with someone having walked between the bedroom and bathroom areas, towards the front sliding doors of the house and back to the bedroom or bathroom area. There was no evidence of someone with blood on their shoes having been outside the house. Blood in swabs taken from Mr Boyle’s hands, shoes and pants was identified as having come from James Clark.
[10] The forensic pathologist who carried out the post-mortem examination on 11 December 2019 confirmed that James Clark had died through multiple blunt and sharp force injuries, primarily to the head and neck. The pathologist considered the injuries were consistent with their having been caused by weapons found at the scene. James Clark was decapitated after death.
[11] There was no evidence that anyone other than Mr Boyle was in the house at the time James Clark was killed.
[12] The evidence thus establishes that Mr Boyle killed James Clark by bashing him about the head with the hammer-like object and by cutting him about the neck. Having killed him, Mr Boyle cut off the deceased’s head.
[13] 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 or her when labouring under natural imbecility or disease of the mind to such an extent as to render him or her 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 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.
(4) The fact that by virtue of this section any person has not been or is not liable to be convicted of an offence shall not affect the question whether any other person who is alleged to be a party to that offence is guilty of that offence.
[14] Because he is presumed to be sane, Mr Boyle has the onus of establishing, on the balance of probabilities, that he was insane in terms of s 23 at the time he killed his step-brother.
[15] Mr Boyle has to establish two elements. First, that he was suffering from a disease of the mind at the time the offence was committed. Second, he must establish that the disease meant he was incapable of knowing the nature and quality of what he was doing when he killed his step-brother. Alternatively, he must establish he was incapable of knowing what he did was morally wrong having regard to the commonly accepted standards of right and wrong.
[16] Section 20(2) of the Criminal Procedure (Mentally Impaired Persons) Act states:
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—
(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 section 23 of the Crimes Act 1961 at the time of the commission of the offence.
[17] Here, Mr Boyle, through his counsel, has raised the defence of insanity. The prosecution agrees that the only reasonable verdict is not guilty by reason of insanity. For that to be the verdict, I must however be satisfied, on the basis of expert evidence,
that Mr Boyle was insane, within the meaning of s 23 of the Crimes Act, at the time the offence with committed.
[18] Mr Boyle relies on evidence in reports from a psychiatrist and a psychologist who were asked by the Court to provide expert evidence to assist the Court to determine, first, whether Mr Boyle was unfit to stand trial and, second, whether he was insane within the meaning of s 23. The Court also has evidence from another psychiatrist who had been asked by the Crown to provide further expert evidence.
[19] Mr Ghazi Metoui is an experienced consultant forensic psychologist who has assisted the Court with expert evidence over many years. He first met with Mr Boyle on 13 and 15 January 2020. In each of those interviews, Mr Boyle was in waist restraints and was escorted by five custody officers. The meetings lasted no more than two minutes due to Mr Boyle attempting to bite one officer in the first interview and lunging out of his chair towards Mr Metoui in the second interview. Mr Metoui’s report to the Court of 23 March 2020 was based on the extensive information he obtained from Mr Boyle’s mental health file with the Southern District Health Board, a number of previous psychiatric assessments, discussions with the psychiatrists who had been responsible for treating Mr Boyle when he was in the Otago Correctional Facility and the Mason Clinic, discussions with Corrections’ officers where Mr Boyle had been remanded in custody, and discussions with Mr Boyle’s father.
[20] Mr Boyle has had contact with specialist mental health services since 2010 when he was 21. His primary diagnosis from 2012 has been of a bipolar disorder. In 2012, Mr Boyle had presented with grandiose delusions of particular sorts that he had acted upon. During depressive or manic episodes, sufferers can experience psychosis, but this is resolved when their mood disturbance settles, typically achieved through appropriate mood stabilising medication. With Mr Boyle, this was Lithium. Mr Boyle had remained stable until July 2015 when he had a further manic and psychotic relapse. He responded well to Lithium treatment and was discharged from inpatient care after three weeks.
[21] In late November 2016, he presented again with mood elevation. In December 2016 he was readmitted into psychiatric inpatient care after his father had contacted
health services advising that Mr Boyle was “paranoid”. Mr Boyle agreed to hospitalisation. On admission, he was considered “hypomanic” [sic]. He was again treated with Lithium and anti-psychotic treatment Olanzapine. He responded well and was discharged after six days.
[22] In January 2017, he was assessed for a Court ordered report regarding insanity, he had paranoid concerns including fears that his father was intent on killing him. In 2017, he faced various criminal charges. He was found to have an insanity defence on the basis of acute mania at the time together with co-morbid psychosis, suffering from paranoid and grandiose delusions, experiencing hallucinations of a command nature and associated disorganised behaviour.
[23] Mr Boyle was mentally settled for much of 2017 and 2018 but was not engaging with his treatment team.
[24] He was psychiatrically reviewed in March 2019 and was found to be mentally well.
[25] In October 2019, Mr Boyle’s father contacted his treatment team, concerned that Mr Boyle was not keeping to his Lithium medication regime, that they had been arguing and Mr Boyle was under stress after some of his dogs were euthanised for attacking a sheep.
[26] In an assessment of 26 November 2019, his consultant psychiatrist had not observed Mr Boyle to be suffering from an elevated mood or psychotic symptoms.
[27] Mr Boyle’s father told Mr Metoui he had concerns about Mr Boyle’s mental state in the month leading up to 8 December 2019. He was not acting with his father as he normally did. On one occasion, his father and step-mother saw Mr Boyle go into the back of their car and seemingly check the backseat area. They did not discuss this with him but, after Mr Boyle left, they investigated what he might have been looking at and found nothing of note. His father also described him being irritable and prone to arguments and going from being normal to having rages. His father described these as being very out of character as he was usually amiable by nature.
[28] There was also evidence that, in the week before 8 December 2019, Mr Boyle had smashed up the TV in his house which he had purchased for several thousand dollars and smashed all the crockery that had previously been given to him by his father.
[29] Mr Boyle’s father reported that, in the month before 8 December 2019, he made some 40 phone calls to mental health providers asking that Mr Boyle be clinically reviewed. The father stated Mr Boyle was always guarded about his mental health difficulties and was reluctant to talk about it owing to the considerable embarrassment and shame he felt.
[30] Mr Metoui reported that, when Mr Boyle was remanded to the Otago Correctional Facility in December 2019 he did not present with overt signs of psychiatric unwellness, either in terms of mania or psychosis, he was pleasant and polite in his interactions with staff and said he was adhering to his Lithium treatment.
[31] Mr Boyle assaulted his lawyer on 10 December 2019. There were multiple attempted assaults of custody officers. These were reported to have occurred very unpredictably, without any known cause or trigger. On 22 December 2019, Mr Boyle severely injured his right eye by gouging it using his finger and possibly a pencil. He engaged in a series of unusual behaviours in custody. He was regularly interviewed by a psychiatrist but his engagement was superficial. Because of his continued attempts at violence and uncertainty about his underlying mental state, he was transferred to Paremoremo Prison in February 2020.
[32] There, Mr Boyle had been seen responding to auditory hallucinations and had spoken of hearing voices that had been of a command nature. That led his treating psychiatrists to revise their diagnosis from bipolar disorder to schizoaffective disorder.
[33] Schizoaffective disorder is a functional psychotic illness. It involves both discrete manic episodes and discrete depressive episodes but the psychosis prevails, even in the absence of episodes of depression and mania. The illness typically requires treatment with anti-psychotic medication, especially during acute onset and relapse phase of the illness.
[34] On 23 March 2020, Mr Metoui opined that Mr Boyle had a very complex presentation. He could not rule out an underlying psychotic process. He considered Mr Boyle was likely to be well versed and adept at concealing signs and symptoms of illness. He considered Mr Boyle was more likely than not to be suffering from an underlying psychotic illness. On 23 March 2020, Mr Metoui concluded that Mr Boyle was then unfit to stand trial but would become fit to stand trial as he continued to receive treatment. Mr Metoui had not been able to make an assessment on the insanity issue at that stage but considered, as Mr Boyle’s mental state improved with treatment, the issue of insanity could be properly and robustly assessed.
[35] Mr Boyle became a patient at the Mason Clinic secure psychiatric facility in May 2020.
[36] Mr Metoui provided a further report to the Court of 18 November 2020. For that report, he had been able to interview Mr Boyle at the Mason Clinic on 2 November 2020 for 3.5 hours.
[37] Mr Metoui reported that, whilst in Paremoremo Prison, there were times when Mr Boyle engaged in bizarre behaviours. At the time of Mr Metoui’s report, Mr Boyle had been in the Mason Clinic for six months. His consultant psychiatrist and responsible clinician there said Mr Boyle had reported hearing voices since becoming unwell in 2012. He identified one of the voices as “Sparky”, who was not nice and told him what to do, although Mr Boyle would not elaborate on what those commands were. He had however stated that the voices in his head had played a part in why Mr Boyle damaged his eye.
[38] Mr Boyle had talked to Mr Metoui about events leading up to 8 December 2019. He said that, approximately two months before, his dogs were euthanised by the Council after he lost them while hunting. Mr Boyle had felt “terrible” about this and began to experience an increase in the frequency and intensity of multiple voices. Mr Boyle reported that “Sparky” talked about his family in a threatening manner and was threatening to take Mr Boyle’s family out. Over this time, Mr Boyle thought someone would “kill his father”. Mr Boyle also began to develop preoccupations about the welfare of race horses his father was training. Approximately two weeks
before 8 December 2019, he “saw worms” coming out of the crockery his father had given him, so he smashed all the crockery. On the same day, he saw a train coming out of the television then a grey rabbit exited the screen. This led to him smashing the television. He told Mr Metoui he was feeling constantly terrified, but the voices had told him not to disclose his concerns to anyone. Mr Boyle acknowledged meeting his community psychiatrist in late November 2019 but had not disclosed or revealed any signs or symptoms of unwellness.
[39] Mr Boyle had told Mr Metoui that he liked James Clark, had a good relationship with him and was happy to help James when he needed somewhere to live in the days before 8 December 2019. Mr Metoui talked to Mr Boyle of the day James was killed. Mr Boyle said he had cooked them both a feed. Then he lay on the couch and had a sleep. When he woke up, he went to see if James wanted a cup of tea and saw him decapitated. He denied murdering or harming James in any way. Mr Boyle denied that he was instructed by voices to cause harm to James or any other family member, denied having any grievances with James and denied any homicidal thoughts towards James. He however said he had been told by Sparky to assault his lawyer and that he had also taken his left eye out because Sparky had said either “take my eye out or my dad”.
[40] Mr Boyle reported that, once he had begun taking Olanzapine in Paremoremo Prison, his health was much better. He was no longer experiencing “voices”. Mr Boyle accepted that he suffered from schizophrenia.
[41] Mr Metoui also reported that Mr Boyle’s brother, Jamie, had reported Mr Boyle’s mental health deteriorating approximately two months before 8 December 2019 and very much following his dogs being euthanised. He mentioned Mr Boyle talking to himself and “talking with the voices” and that Mr Boyle had broken the television and crockery a couple of weeks before 8 December 2019. Jamie had not seen any sign of difficulties or tensions between Mr Boyle and his step-brother before 8 December 2019.
[42] Mr Metoui said he agrees with the clinical view that Mr Boyle suffers from a functional psychotic illness, either in the form of schizophrenia or, at the very least,
schizoaffective disorder. Mr Metoui concurred with the clinical formulation that Mr Boyle had suffered from chronic auditory hallucinations for the past approximate 10 years and this had been a feature of his internal experience for many years, albeit one that he was highly adept and practiced at concealing.
[43] Mr Metoui considered that Mr Boyle suffered the onset of an acute psychotic relapse around two months before 8 December 2019, that the precipitating event appeared to be the incident of his dogs being euthanised. As the underlying psychotic nature of Mr Boyle’s illness was not recognised by his specialist mental health treatment providers at the time, he was not taking any anti-psychotic medication and therefore his vulnerability to acute psychotic relapses was not treated. His Lithium medication was able to maintain his mood within normal limits but Mr Boyle remained actively psychotic until he began anti-psychotic treatment following his transfer to Paremoremo Prison in February 2020.
[44] Mr Metoui thus considered Mr Boyle was suffering a “disease of the mind” when he killed his step-brother in the context of auditory hallucinations commanding him to harm others. Mr Metoui considered “there was a clear nexus between Mr Boyle’s acute psychosis” and his killing his step-brother and also the assault on his lawyer. Mr Metoui did not think this rendered Mr Boyle incapable of understanding the nature and quality of his acts but considered that, at the time he offended, Mr Boyle did not know the acts were morally wrong to the commonly accepted standards of right and wrong. Mr Metoui considered Mr Boyle’s denials of the offending were probably best understood in terms of defence mechanisms at self-preservation over the magnitude, trauma, guilt and shame associated with all that had occurred. It was his opinion that, on the balance of probabilities, Mr Boyle was insane at the time he killed his step-brother.
[45] A further report was obtained from Dr James Cavney. He is a highly qualified forensic psychiatrist employed at the Mason Clinic where he is the lead clinician of the Mason Clinic Kaupapa Māori Rehabilitation Service. He was not involved in the clinical care of Mr Boyle but assessed Mr Boyle at the Mason Clinic on three occasions between 5 and 6 January 2021 for a total period of five hours.
[46] Dr Cavney considered that his report and opinion benefited from his being able to review a significant amount of new information that had been obtained about Mr Boyle’s mental state before, during and after the events of 8 December 2019. This information was largely based on Mr Boyle’s self-report which had been obtained through the benefits of a nine month inpatient psychiatric admission.
[47] Dr Cavney highlighted aspects of Mr Boyle’s background, consistent with the information provided by Mr Metoui. He noted that, when Mr Boyle was first in prison after 8 December 2019, he denied any overt symptoms to suggest he was unwell and was otherwise very guarded and uncooperative. Dr Cavney considered that Mr Boyle’s later self-reports revealed the extent of his psychosis around that time.
[48] Mr Boyle’s account of events leading up to 8 December 2019 to Dr Cavney was consistent with what he had told Mr Metoui but with a rather more detailed acknowledgement of how he heard voices, including his often saying that, at the time he was speaking to Dr Cavney, he was still “petrified” of his voices and they frequently threatened to harm him if he told anyone about them. He acknowledged that the voices likely contributed to his self-mutilation and the assault on his lawyers and others while in custody. Mr Boyle’s description of events on the day was also consistent with what he had told Mr Metoui but with some further detail. He told Dr Cavney that he had been hearing lots of different voices that day that were aggressive and threatening but he did not want to say who they were. As with Mr Metoui, Mr Boyle told Dr Cavney that the voices had been relentlessly threatening to kill his father unless Mr Boyle poked his eye out and that “it was either my eye or my dad”.
[49] Dr Cavney noted that Mr Boyle had been diagnosed with bipolar affective disorder prior to the events of 8 December 2019. Dr Cavney considered that his subsequent contacts with forensic mental health services had established he also has a psychotic disorder, most likely schizophrenia. Subsequent to the admission to the Mason Clinic, Mr Boyle had disclosed a more fulminant:
… range of psychotic symptoms that he said he had concealed from mental health staff for several years. These have included visual hallucinations (e.g. pixies) and a range of derogatory and command auditory hallucinations.
[50] He had also disclosed a wide range of persecutory delusions and delusions of control with religious themes that some supernatural presence was taking control of his thoughts and actions.
[51]Dr Cavney said:
Those symptoms would be consistent with a schizophrenia illness and in combination with his previously diagnosed mood disorder, it is probable he has a schizoaffective disorder of the bipolar sub-type.
[52] As to insanity, Dr Cavney said Mr Boyle had an established diagnosis of a schizoaffective disorder of the bipolar sub-type which could reasonably be considered as a disease of the mind. He said it was more difficult to assess whether Mr Boyle was incapable of knowing the nature and quality of his acts with his step-brother or their moral wrongfulness. It was unclear and difficult to assess because Mr Boyle had denied killing his step-brother and appeared to have no memory of having done so. Dr Cavney however accepted that, since his admission to the Mason Clinic, Mr Boyle had been able to recall and recount many symptoms of serious psychotic episodes in the period before and after he killed his step-brother. He considered Mr Boyle’s denial of the offending and any memory of it could plausibly be due to traumatic amnesia or a psychological defence to avoid having to face the reality of what he had done. Dr Cavney was of the opinion that Mr Boyle would probably have a defence of not guilty by insanity based on his mental state immediately before and after the killing. Dr Cavney considered that, if the Court found Mr Boyle fit to stand trial, he should be further assessed as to the potential defence of insanity.
[53] Mr Boyle’s potential insanity defence and his fitness to plead were also then assessed by another experienced forensic psychiatrist Dr Justin Barry-Walsh. He provided reports of 12 April and 17 May 2021 to the Crown prosecutor in Invercargill. Dr Barry-Walsh was also able to interview Mr Boyle at the Mason Clinic for an hour and a half on 2 April 2021. This was as long as Mr Boyle could tolerate. Dr Barry- Walsh interviewed him again on 13 May 2021. He had the earlier reports provided to the Court by Mr Metoui and Dr Cavney, and letters to the Court from other doctors who had been involved in the care of Mr Boyle during 2020 and January 2021. Mr Boyle did not, at the time of the first interview, admit to Dr Barry-Walsh that he had attacked and killed James Clark but, in response to questions, he said “all down to
voices”, that he “thought my brother was the devil” because of “the voices”, that he had these thoughts for three days, that the experience was frightening and that he was “worried for the family” and said “I thought they would be harmed”. He said those experiences were getting worse and worse.
[54] In his first report, Dr Barry-Walsh said that his interview with Mr Boyle was notable:
… for a marked variation in Mr Boyle’s mental state between times when he was able to readily engage in conversation about neutral subjects and times when he became shut down, obviously distressed, anxious and guarded which occurred when discussing any of the alleged acts of violence, the [injuries he did to] his eye and his psychiatric history.
[55] As with others, Dr Barry-Walsh said an assessment as to insanity was more difficult because Mr Boyle continued to deny the murder of his step-brother and claimed to have no memory of either that or the assault of his lawyer in custody two days later. In his report of 12 April 2021, Dr Barry-Walsh was nevertheless of the view that Mr Boyle was suffering from a relapse of his severe psychotic illness at the time he killed his step-brother and when he assaulted his lawyer. With Mr Boyle having told Dr Barry-Walsh that he believed his step-brother was the devil and that he had to kill him in order to release him, Dr Barry-Walsh considered it more likely than not that, as a result of his mental illness, Mr Boyle believed his actions were morally correct. In that report, Dr Barry-Walsh said his opinion at that time was preliminary, partly because it was based on a single interview.
[56] Dr Barry-Walsh provided a further report of 17 May 2021 to the Crown solicitor. At that time, he had further material including Mander J’s decision of 6 May 2021 about Mr Boyle’s fitness to plead, and witness statements from a number of prosecution witnesses.
[57] Dr Barry-Walsh interviewed Mr Boyle again for about an hour on 13 May 2021. Mr Boyle gave Dr Barry-Walsh more information about what he had been thinking and did on 8 December 2019. Mr Boyle repeated that the voices had said to him that his step-brother was the devil. Mr Boyle said it was hard to say what happened when he went back into the house, having been outside and then sleeping,
but the voices were saying to him that, if he did not kill his step-brother, the step- brother would kill him and the family, that he had “been on edge for a couple of days” and that he proceeded to “execute him”. He said he had used the hammer to kill his step-brother and then cut his head off but said he did not know why. He said the voices had persisted when he was in prison. He again expressed his affection and brotherly love for the victim. He talked of the difficulties he had faced in the months leading up to the killing of his step-brother, including seeing a train and then a rabbit coming out of the television. Although Mr Boyle described now recognising what he had done was wrong, he also contradicted that by saying he believed his step-brother had been a demon and he therefore must have been doing the right thing. Dr Barry-Walsh said this ambivalence is what is described as “double bookkeeping” phenomenon seen in people recovering from severe psychotic illness where they can hold contrary views, one apparently insightful and the other consistent with their previous delusional beliefs.
[58] Dr Barry-Walsh said his further interview and review of materials had bolstered his opinion that Mr Boyle does have a defence of insanity.
[59] Dr Barry-Walsh was of the opinion that there was abundant evidence that, at the time he killed his step-brother, Mr Boyle was seriously mentally ill. He was satisfied that Mr Boyle had demonstrated symptoms consistent with a psychotic illness and violence because of this. He was satisfied that those symptoms had persisted for long periods despite abstinence from drug use so that the symptoms could not be attributed to drug use. He was satisfied that, at the material time, Mr Boyle was unable to reason as to the moral wrongfulness of his actions. He said there was a history of fits which seemed to pre-date the offending. Noting Mr Boyle’s reluctance to disclose symptoms of a mental illness, he considered it unlikely that Mr Boyle was exaggerating or malingering the symptoms he had described experiencing at the time. He considered it striking that, even now, there is evidence of profound ambivalence in Mr Boyle as to whether his actions were morally right or wrong.
[60] I am satisfied there is abundant evidence that on 8 December 2019 Mr Boyle was suffering from a disease of the mind, namely schizophrenia or a schizoaffective disorder of the bipolar sub-type. I am also satisfied that, by reason of that disease of
the mind, Mr Boyle was incapable of knowing that his act of killing his step-brother was morally wrong, having regard to the commonly accepted standards of right and wrong.
[61] The psychiatrists have noted that it has taken a long time for Mr Boyle to disclose significant information and detail that has reinforced them in opinions they initially expressed somewhat tentatively. I have carefully considered all the information put before me in the evidence from the psychiatrists and the psychologist Mr Metoui. I am satisfied that Mr Boyle’s delay in disclosing the extent to which his thinking was affected by voices and hallucinations has not been because of some dishonest attempt to provide the Court with a defence of insanity. I consider the information has become available over time through the treatment and care Mr Boyle received while at the Mason Clinic, care for which Mr Boyle has said he is grateful.
[62] As he noted in his report of 12 April 2021, Dr Barry-Walsh’s opinion is consistent with the evidence from Mr Boyle’s father of the deterioration of Mr Boyle’s mental state, the actual acts of violence which occurred when he killed his step-brother and in the way Mr Boyle assaulted his lawyer and others when he was first in prison soon after 8 December 2019. He had displayed unusual physical behaviour both before the events of 8 December 2019 and afterwards, consistent with those being symptoms of the disease of the mind which the psychiatrists say he was suffering at the time he killed James Clark. There was nothing to suggest that there was any rational explanation for what he did to his step-brother. Mr Boyle’s actions on 8 December 2019, in the way he appeared when he first spoke to the Police when they arrived at the scene and what he did to James Clark, really speak for themselves.
[63] My role as Judge is to check that the defence of insanity has, on the evidence, been made out with the result that Mr Boyle is not criminally responsible for the tragedy which occurred. I am satisfied that defence has been made out.
[64] I accordingly record a finding in terms of s 20(1) of the Criminal Procedure (Mentally Impaired Persons) Act 2003 that Mr Boyle is not guilty of the charge of murder by reason of his insanity.
Disposition
[65] 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 Criminal Procedure (Mentally Impaired Persons) Act. Section 24(1) requires the Court to consider all the circumstances of the case and the evidence of one or more psychiatrists or clinical psychiatrists as to whether the detention of Mr Boyle under alternative orders is necessary.
[66] The two alternative orders are that he be detained in a hospital as a special patient under the Mental Health (Compulsory Assessment and Treatment) Act 1992 or in a secure facility as a special care recipient under the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003.
[67] Section 24 of the Criminal Procedure (Mentally Impaired Persons) Act says the Court must make one of those orders “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”.1
[68] The Court of Appeal, in the case of M (CA819/11) v R, set out how the Court has to make the judicial assessment that is required.2 The Court observed:
[7] In determining whether it is necessary 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. 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:3
1 Criminal Procedure (Mentally Impaired Persons) Act 2003, s 24(1)(c).
2 M (CA819/11) v R [2012] NZCA 142, (2012) 28 FRNZ 773.
3 R v Rangi (No 2) HC Rotorua CRI-2005-019-3496, 9 March 2006 at [57].
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.
[69] It has taken Mr Boyle a considerable time and sustained inpatient treatment with medication appropriate for his particular mental illness for him to acknowledge what he did to his step-brother and to provide a psychiatrist with the information needed for them to make a firm diagnosis. Ultimately, the psychiatrist who he confided in, to the extent necessary for that diagnosis to be made, was Dr Barry-Walsh. In his report of 17 May 2021, Dr Barry-Walsh said:
If Mr Boyle were to be found not guilty by reason of insanity, in my view, he would require disposition as a special patient pursuant to s 24 of the Criminal Procedure (Mentally Impaired Persons) Act 2003. Mr Boyle has a serious mental illness, when he relapses, he represents a high risk of serious violence to others and to himself. I believe it would both be in his interests and in the interests of the community for him to be subject to special patient status.
[70] A very careful examination of Dr Barry-Walsh’s evidence, of the other psychological and psychiatric evidence put before the Court and evidence as to the circumstances of Mr Boyle’s offending has been required. The standard of necessity sets a high threshold.
[71] It is clear, through what Mr Boyle did to his step-brother who he liked, the severe injury to himself and the way he physically attacked others when first in custody, that Mr Boyle will be a serious danger to himself and to others if he does not continue with treatment and the taking of the medication he needs to alleviate the symptoms of serious psychosis. For years, he was adept at concealing the true extent of his psychosis from those close to him and his treating physicians. There was a time when he needed to be taking Lithium for his bipolar illness but he stopped doing so.
[72] I am satisfied that Mr Boyle’s detention as a special patient is necessary in the interests of the public, his family who he was close to, and himself.
[73] The order I must make will require Mr Boyle 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.
[74] I therefore make an order under s 24(1)(c) of the Criminal Procedure (Mentally Impaired Persons) Act 2003 that Mr Boyle is to be detained in a hospital as a special patient under the Mental Health (Compulsory Assessment and Treatment) Act 1992.
Suppression
[75] Before I came into Court this afternoon, I anticipated that there could be an application for me to make an order continuing with the suppression of Mr Boyle’s name and also the name of the victim of what happened.
[76] I have been told by Mrs Ablett-Kerr for Mr Boyle that he does not make any submissions in this regard. The Crown have told me, through Mr Donnelly, that the family were understandably distressed at reading reports in the media of what happened in Court yesterday and what was said about the events that occurred.
[77] Mr Boyle’s family are in Court. I am acutely conscious of how this tragedy must have devastated them. Had Mr Boyle been found guilty of murder as a criminal offence, you would have been able to read out victim impact statements to tell him and the Court how you have been affected by the way he killed your son, step-son, a brother and step-brother. Mr Boyle is also a victim of his illness and all that happened. I have seen evidence which shows that, as a family, you never gave up on either James Clark or Joseph Boyle in all the challenges they both faced.
[78] Mr Boyle, you did all you could to try and ensure Joseph would not be a danger to himself or to others in the way that no one had foreseen. You have come to Court supporting Joseph Boyle but also because of the huge loss you and James’ mother have suffered. I acknowledge that.
[79] You do not now seek suppression, so I do not need to explain why I would have had to make the decision that I would have. But, one of the things I would have had to take into account was whether or not the hardship you have had to suffer, as the
family of both the victim and of the person who was responsible for the death, was undue.
[80] Families in your position often have to suffer terrible hardship as a result of events like that. But, one of the things I would have taken into account was the likelihood that many and hopefully most people in the community will understand that Mr Boyle suffered from a serious mental illness that led to this tragedy. In the particular circumstances of this case, there should be considerable sympathy for the consequences this has had for your family.
[81] Given that there is no application for continuing suppression, I do not need to make any order in relation to that. The orders currently in place now lapse. As you heard me say, I do not give permission for any photographs to be taken in Court.
Solicitors:
Preston Russell Law, Invercargill
J M Ablett-Kerr QC, Barrister, Dunedin Ross Dowling Marquet Griffin, Dunedin.
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