R v Buchanan

[2023] NZHC 1881

ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS OR IDENTIFYING PARTICULARS OF DEFENDANT UNTIL THE DISPOSITION HEARING – SEE [63].

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE

CRI-2023-041-76

[2023] NZHC 1881

THE KING

v

TIMOTHY DAVID BUCHANAN

Hearing:	18 July 2023
Counsel:	S B Manning and B L McKenzie for the Crown M J Phelps for the Defendant
Judgment:	19 July 2023

JUDGMENT OF GWYN J

(Reasons judgment: fitness to stand trial; insanity)

Solicitors:
Crown Solicitor, Napier

R v BUCHANAN [2023] NZHC 1881 [19 July 2023]

[1]    On 18 July 2023  I issued an oral results judgment, recording findings that  Mr Buchanan had a mental impairment but was fit to stand trial; that the act with which he was charged was proven, but that I was satisfied that Mr Buchanan was insane at the time of the commission of the offence. I found Mr Buchanan not criminally responsible on account of insanity and acquitted him of the charge of murder. I now set out my reasons.

Introduction

[2]    The defendant, Timothy David Buchanan, faces one charge of murder. The charge is that on 14 January 2023 he fatally assaulted the victim, Colin Blithe, by repeatedly placing him in a chokehold until he stopped breathing.

[3]    On 24 February 2023 the Court ordered that two reports be provided under s 38 of the Criminal Procedure (Mentally Impaired Persons) Act 2003 (Act) to assess the defendant’s fitness to stand trial, and whether a defence of insanity is available to him.

[4]    In addition to the two reports sought by the Court, and now received from   Dr Laurenti and Dr Young, the Crown commissioned a third report from Dr Jeremy Skipworth and the defence obtained an additional report from Dr Gordan Lehany.

[5]All four report writers agree in their conclusions that:

(a)The defendant is fit to stand trial; and

(b)The defendant has a defence of insanity available to him.

Background

[6]    In late 2008 Mr Buchanan was diagnosed with paranoid schizophrenia, having been admitted to the Hastings Psychiatric Unit for one month.

[7]    Between February 2009 and August 2013 he was readmitted for relapses of paranoid schizophrenia. From 2009, Mr Buchanan was made subject to a community treatment order, which became an indefinite order in 2014.

[8]    Mr Buchanan’s psychiatric history is comprehensively outlined in the psychiatric reports available to the Court, particularly the report of Dr Greg Young.

[9]    In summary, Mr Buchanan was experiencing almost constant auditory hallucinations throughout 2022 and was not taking his medication.

[10]   Prior to the events of 14 January 2023, Mr Buchanan had assaulted a work colleague in October 2022 and, in December 2022 he had threatened and then assaulted a random stranger. Both events were likely psychotically motivated.

[11]   Mr Buchanan lived in a boarding house. Mr Blithe was the property manager at the boarding house. In the lead-up to 14 January 2023 there had been tensions between Mr Buchanan, the other residents and Mr Blithe.

[12]   One week prior to 14 January 2023 Mr Blithe served Mr Buchanan with a two week eviction notice. Mr Blithe had made contact with the Mental Health Team because of his concerns about Mr Buchanan’s behaviour and he had also been in contact with Mr Buchanan’s mother.

[13]   On 13 January 2023 Dr Seale and Nurse Jo Wainwright visited and assessed Mr Buchanan at his room at the boarding house. Mr Blithe unlocked the door and let them into Mr Buchanan’s room.

[14]   Dr Seale considered that Mr Buchanan was more psychotic than baseline, was refusing medication and would benefit from an admission to the Mental Health Impatient Unit. Regrettably, there were no beds available at the inpatient unit.

[15]   On the evening of 14 January 2023 Mr Buchanan went to Mr Blithe’s room.and Mr Buchanan said an argument ensued between them. During the course of that confrontation, Mr Buchanan placed Mr Blithe in a chokehold on two occasions and applied pressure to his neck until he stopped breathing. Mr Buchanan left the room taking some of Mr Blithe’s personal items. Mr Blithe was found deceased by associates the following day.

Is Mr Buchanan unfit to stand trial?

[16]   Section 8A of the Act sets out a two-stage process that requires the Court to determine on the evidence of two health assessors if the defendant is mentally impaired and whether or not the defendant is unfit to stand trial.1

[17]Section 4 of the Act defines “unfit to stand trial”:

unfit to stand trial, in relation to a defendant,—

(a)means a defendant who is unable, due to mental impairment, to conduct a defence or to instruct counsel to do so; and

(b)includes a defendant who, due to mental impairment, is unable—

(i)to plead:

(ii)to adequately understand the nature or purpose or possible consequences of the proceedings:

(iii)to communicate adequately with counsel for the purposes of conducting a defence

Mental impairment

[18]   The first step in considering fitness requires the Court to determine whether Mr Buchanan has a mental impairment.

[19]The Court of Appeal in Jones v R said:2

The expression “mental impairment” is not defined. Professor Brookbanks has observed that the term “was designed to capture both intellectual disability and mental disorder”,3 but that it includes other mental impairments such as those caused by degenerative neurological condition, substance abuse, or acquired brain injury.4 The expression was left undefined to free courts to interpret the term as best would ensure procedural fairness.5

[20]   Dr Skipworth’s report considers that the diagnostic criteria for schizophrenia are made out in Mr Buchanan’s case. He refers to Mr Buchanan’s recurring history of delusional beliefs of a paranoid and bizarre nature. That conclusion is consistent with the findings of all other psychiatrists involved in Mr Buchanan’s assessment and care.

1      Criminal Procedure (Mentally Impaired Persons) Act 2003, s 8A(1) and (2).

2      Jones v R [2015] NZCA 601 at [15].

3      Warren Brookbanks Competencies of Trial: Fitness to plead in New Zealand (LexisNexis, Wellington, 2011) at 237.

4      An interpretation which has received some judicial support: R v WWC HC Auckland T24701,  28 January 2004 at [38]-[48]; R v H [2014] NZHC 1423 at [9].

5      Criminal Justice Amendment Bill 1997 (No 7) (328-1) (explanatory note) at ii.

Dr Skipworth’s opinion is that Mr Buchanan’s mental illness, schizophrenia, constitutes a mental impairment in terms of the statutory criteria.

[21]   Dr Young’s report recognises that Mr Buchanan has a diagnosis of chronic paranoid schizophrenia, although that report does not specifically record that such a diagnosis meets the statutory criteria for a mental impairment.

[22]   Dr Laurenti’s report records that Mr Buchanan has a diagnosis of paranoid schizophrenia and chronically experiences a level of psychosis even when compliant with prescribed treatment. Dr Laurenti does not specifically record that this diagnosis meets the statutory criteria for a mental impairment.

[23]   Dr Lehany notes Mr Buchanan’s established diagnosis of schizoprhrenia, which he considers to be correct.

[24]   In light of that evidence from four experts, I am satisfied that Mr Buchanan has a mental impairment for the purpose of s 8A of the Act.

Fitness to stand trial

[25]   The second step in considering Mr Buchanan’s fitness to stand trial requires me to determine whether his mental impairment precludes his effective participation in a trial.

[26]The three core principles underlying the fitness inquiry are:6

(a)protecting the defendant’s right to a fair trial and to present a defence;

(b)promoting the integrity and legitimacy of the justice system by only holding defendants accountable if they understand why they are being prosecuted; and

6      R v H [2022] NZCA 608 at [107]; citing Nonu v R [2017] NZCA 170 at [26].

(c)enhancing society’s interest in having a reliable criminal justice system by not trying those who, through a lack of fitness, are unable to advance an available defence.

[27]   I have considered the expert reports and what they have to say about Mr Buchanan’s fitness to stand trial. Dr Laurenti assessed the defendant on 11 April 2023. She considered that while Mr Buchanan remained actively psychotic he displayed an adequate understanding of the Court process. He provided a coherent explanation and presented as able to communicate and discuss his plea and defence with his lawyer. Accordingly, Dr Laurenti concluded that Mr Buchanan was fit to stand trial.

[28]   Dr Young was satisfied that Mr Buchanan was aware of the charge he faced, understood the nature and purpose of a trial, the roles of the important people, was able to engage in detailed discussions about the allegations and understood the available pleas and their implications. Dr Young also recommended that the Court find Mr Buchanan fit to plead and stand trial.

[29]   Dr Skipworth considered the relevant criteria and determined that Mr Buchanan understood the charges at a basic level, the pleas available, the nature and purpose of the proceedings and the consequences of different outcomes. Dr Skipworth concluded that the defendant’s mental illness was not sufficiently disabling to meaningfully impact on the capacities relevant to standing trial and accordingly he was fit to stand trial.

[30]   Dr Lehany’s assessment is that Mr Buchanan is fit to stand trial. His report records that Mr Buchanan understands the nature of the charge against him and understands the court process and pleas available to him.

[31]   In light of the opinions of each of the experts, and in the absence of evidence to the contrary, I accept that Mr Buchanan is fit to stand trial.

[32]   Accordingly, I record a finding that Mr Buchanan is mentally impaired, but nevertheless fit to stand trial, pursuant to s 8A of the Act.

Does Mr Buchanan have a defence of insanity?

[33]   Section 20(2) of the Act requires the Court to record a finding of act proven but not criminally responsible on account of insanity if the following conditions are met:

(a)Mr Buchanan indicates an intention to raise the defence of insanity;

(b)the prosecution agrees that the only reasonable verdict is a finding of act proven but not criminally responsible on account of insanity; and

(c)the Court is satisfied, on the basis of expert evidence, that Mr Buchanan was insane within the meaning of s 23 of the Crimes Act 1961 at the time of the commission of the offence.

[34]   The procedure set out in s 20(2) provides a means of resolving the issue of insanity in the case of a particular defendant. Where the conditions are met the procedure can bring a matter to completion within a much shorter time than would be possible if it were necessary for a full jury trial to be held.7 A finding under s 20(2) ensures that someone who has no criminal intent or capacity to form a criminal intent due to mental illness is not regarded or treated as a criminal.

[35]   Applying the s 20(2) conditions, first, Mr Phelps, counsel for Mr Buchanan, has confirmed that he has written instructions from Mr Buchanan to raise the defence of insanity. In view of my finding that Mr Buchanan is fit to stand trial, I am also satisfied that Mr Buchanan is fit to provide instructions in this regard.

[36]   Second, counsel for the Crown, Mr Manning and Ms McKenzie, have agreed that the only reasonable verdict is a finding of act proven but not criminally responsible on account of insanity.

7      R v Rangi (No 2) HC Rotorua CRI-2005-019-3496, 9 March 2006, at [26]-[27], 29.

Was Mr Buchanan insane?

[37]   The third condition is that I must be satisfied that Mr Buchanan was insane, within the meaning of s 23 of the Crimes Act, at the time of the commission of the offence.

[38]Section 23 of the Crimes Act provides:

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.

…

[39]   Counsel for both the Crown and Mr Buchanan submit that the expert evidence before me is sufficient to satisfy the Court that Mr Buchanan was insane within the meaning of s 23 at the time of the commission of the offence.

[40]   Dr Skipworth, Dr Young, Dr Laurenti and Dr Lehany all concluded that Mr Buchanan likely has a defence of insanity available to him.

[41]   All of the expert reports include a description of Mr Buchanan’s beliefs and state of mind, as relayed by Mr Buchanan to each of them. These accounts are consistent, and I set out several passages from Dr Skipworth’s report that describe that state:

In terms of thought content, Mr Buchanan described a rich delusional belief system, which linked to his experience of hearing voices. The essence of his delusional beliefs were paranoid and bizarre. He believed that some people on earth were imposters, identical in their physical appearance to real people, but not from planet Earth. He believed that they were from different sectors in the universe, with nefarious purposes on Earth although he did not understand this completely. He had learned about this alternative reality by listening to his voices, in particular a voice her referred to as the ‘master

teacher’, otherwise known as God or ‘Anabus’. He referred to large numbers of voices frequently talking to him, or to each other, and sometimes said that they became overwhelming. He said that he thought Mr Blithe was one of these imposters because his voices had told him so. He was still unsure about whether Mr Blithe may have been from a different sector, and continued to refer to him as Bobby, the name he said his voices had given him…

…

Mr Buchanan told me that the universe was separated into different ‘sectors’. He believed Mr Blithe was from a different sector, and that he was masquerading as a human being from planet Earth. Mr Buchanan believed that Mr Blithe was being duplicitous, but he did not know why he was on Earth, or what his motives might be.   He told me ‘in the physical form     Mr Blithe was human, but not in the spiritual sense’. He felt Mr Blithe was controlling him and being manipulative. He said he was running him down which he did not like.

On the day of the alleged offending, Mr Buchanan recalled some interactions between himself and Mr Blithe, whom he called ‘Bobby’. He said this name came into his head, from the voices. The voices convinced him that Mr Blithe was not who he was pretending to be. He said the voices encouraged him to extract a confession from Mr Blithe and that he choked him with a headlock in order to extract a confession.  He  said it  was  not  his  intention to kill  Mr Blithe, only to extract the confession.

[42]   The first limb of s 23(2)(a) on which insanity may be established is if the defendant is incapable of understanding the nature and quality of his or her act or omission. A person is considered incapable of understanding the nature and quality of his or her act or omission if, in essence, he or she does not know what they are doing.8

[43]   The second limb of s 23(2)(a) on which insanity may be established is if the defendant is incapable of knowing his or her act or omission was morally wrong, having regard to commonly accepted standards of right and wrong. A defendant is incapable of knowing his or her act or omission is morally wrong if he or she could not, by reason of a disordered mind, think rationally about the reasons which would make the act morally wrong to an ordinary person.9

[44]In R v Chand, Winkelmann J (as she then was) said:10

As to what it means that the accused was incapable of knowing that the act or omission was morally wrong, the issue is whether the mental disorder that

8      A P Simester and W J Brookbanks Principles of Criminal Law (5th ed, Thomson Reuters, Wellington, 2019) at 454.

9      R v MacMillan [1966] NZLR 616 (CA) at 619, cited in R v K [2020] NZHC 1350 at [37].

10     R v Chand [2012] NZHC 274 at [25].

Mr Chand was suffering from prevented him from thinking rationally, with some moderate degree of sense and composure, about the moral quality of the act, to the extent that he did not know the act was wrong. What is meant by wrong is wrong having regard to the everyday standards of reasonable people.

[45]   The four experts in this case considered whether Mr Buchanan was either incapable of knowing or understanding the nature and quality of the act he committed, or of knowing the act was morally wrong.

[46]   All four experts concluded that  the  second  limb  (s  23(2)(b))  applies  in  Mr Buchanan’s case: he was incapable of knowing that his action was morally wrong. Dr Skipworth and Dr Lehany concluded that the first limb (s 23(2)(a)) also applies, in that Mr Buchanan’s delusions were operating at the time and he was incapable of understanding the nature and quality of his act.

[47]   Dr Skipworth considered that at the most basic level Mr Buchanan understood the nature and quality of the act in placing the victim in a headlock. However, because Mr Buchanan believed that the headlock was being applied to an alien from a different sector of the universe, this psychotically distorted overall perception of reality is sufficient to satisfy the Court that Mr Buchanan did not understand the nature and quality of his actions.

[48]   Dr Skipworth also considered that Mr Buchanan’s psychotic process was significantly impacting on his moral reasoning. Although at one level he understood the wrongfulness of choking someone to extract a confession, he was being commanded to do so by an authority he regarded as god and consequently it did not feel as though he was doing anything wrong at the time. The ongoing psychotic beliefs led Mr Buchanan to feel no remorse for his actions, indicating a critical interference with moral reasoning occasioned by his disease of the mind.

[49]   Accordingly, Dr Skipworth’s opinion was that it was more likely than not that Mr Buchanan was insane at the time of the alleged offending and has the defence of insanity available to him.

[50]   Dr Young’s opinion is that it is likely Mr Buchanan knew what he was doing at the time of the alleged offending. However, he considered it was highly unlikely

that Mr Buchanan had the ability to know what he was doing was morally wrong, because he had been completely immersed in his psychotic experiences. In this state he would have been unable to differentiate reality from psychosis and his decisions about what is morally right and wrong would have been profoundly influenced by his delusions and hallucinations.

[51]   Dr Laurenti noted Mr Buchanan’s long history of paranoid schizophrenia and that he continues to present as actively psychotic. At the time of the offending he had been non-compliant with his medication for a period of four months and was experiencing auditory hallucinations and delusional ideation.

[52]   Dr Laurenti considered that Mr Buchanan was acting on the basis of his psychotic beliefs at the time of the alleged offending and was unable to distinguish right from wrong.

[53]   Dr Lehany concludes it is likely that Mr Buchanan was incapable of knowing that the act committed was wrong, having regard to commonly accepted standards of right and wrong. Dr Lehany also concluded that, “[d]ue to his misidentification of Mr Blithe as an entity from another dimension, and the ongoing incongruity of his emotions combined with marked thought-disorder, [Mr Buchanan] was incapable of understanding the nature and quality of his actions at that time”.

[54]   Having regard to the expert evidence before me I am satisfied that the disease of the mind rendered Mr Buchanan incapable of knowing that his actions were morally wrong, having regard to the commonly accepted standards of right and wrong. Because all four experts agreed on that conclusion it is not necessary for me to consider whether, in addition, Mr Buchanan was incapable of understanding the nature and quality of his act.

[55]   Finally, in relation to a finding of insanity, I note that s 4 of the Act provides as follows:

act proven but not criminally responsible on account of insanity, in respect of a defendant charged with an offence, means—

(a)the defendant is found to have caused the act or omission that forms the basis of the offence with which the defendant is charged; and

(b)the defendant was insane at the time that the defendant caused that act or omission

…

[56]   The effect of s 4 is that I must be satisfied that Mr Buchanan caused the act or omission that forms the basis of the offence for which he has been charged.

[57]I am satisfied for the following reasons:

(a)Counsel for Mr Buchanan has accepted that Mr Buchanan caused the act that formed the basis of the charge of murder.

(b)The statements of evidence from Detectives Kemsley, Simister and Parker record that Mr Buchanan admitted to them that he had caused the act.

(c)The reports of all four experts record that Mr Buchanan told each of them that he had caused the act.

Finding on insanity

[58]   I therefore make a finding of act proven but not criminally responsible on account of insanity.

[59]I acquit Mr Buchanan of the charge of murder.

Disposition

[60]   Pursuant to s 23(1) of the Act I must therefore order that inquiries be made to determine the most suitable method of dealing with Mr Buchanan, under ss 24 or 25 of the Act.

[61]   While such an inquiry is carried out I remand Mr Buchanan to a hospital or secure facility from Wednesday 19 July 2023, pursuant to s 23(2)(b) of the Act.

[62]   The Act requires the inquiries to be completed as quickly as practicable, but in any event they are to be completed by 16 August 2023.

Interim order for suppression of name

[63]   Mr Buchanan has had an interim order for the suppression of his name and identifying details since his arrest. I direct that the interim order remain in place until the disposition hearing. At that point the Court will reassess the impact of publication on Mr Buchanan’s rehabilitation.

Other charges

[64]   As I recorded in the results judgment of 18 July 2023,11 there were two other charges (assault with intent to injure and intimidation) against Mr Buchanan, separate in time and circumstance to the murder charge. The Crown offers no evidence on these charges of and accordingly I dismiss the charges.

Gwyn J

11     R v Buchanan (Results) [2023] NZHC 1871.