R v Frank
[2017] NZHC 2587
•24 October 2017
IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY
I TE KŌTI MATUA O AOTEAROA
TE ROTORUA-NUI-Ā-KAHU ROHE
CRI-2017-069-000422 [2017] NZHC 2587
THE QUEEN
v
SIMON HARVEY FRANK
Hearing: 24 October 2017 Appearances:
A Gordon for Crown
T Sutcliffe for DefendantJudgment:
24 October 2017
ORAL JUDGMENT OF JAGOSE J
Solicitors/Counsel:
Gordon Pilditch, Rotorua
T Sutcliffe, Barrister, Hamilton
R v FRANK [2017] NZHC 2587 [24 October 2017]
Introduction
[1] Simon Harvey Frank faces one charge of murder. The victim was Mr Frank’s wife, Petra Frank. Mr Frank’s counsel has indicated Mr Frank intends to raise his insanity as a defence. The Crown Solicitor agrees the only reasonable verdict on the charge is one of not guilty on account of insanity.
[2] If I am satisfied, on the basis of expert evidence, Mr Frank was insane within the meaning of s 23 of the Crimes Act 1961 at the time of his commission of the offence, I must find him not guilty on account of his insanity.1
Background
[3] The Crown’s summary of facts discloses Mr and Mrs Frank had been married for 32 years. They have two children together: a 30 year-old son, and a 28 year-old daughter.
[4] Mr Frank was diagnosed with bi-polar disorder in 1987 and has been taking medication for this illness since that time.
[5] On Friday 14 April 2017, Mr Frank and the victim travelled to Taupo to stay
at a bach owned by one of Mrs Frank’s colleagues.
[6] Mrs Frank told her colleague she and Mr Frank needed a weekend away because their relationship was sometimes difficult, and Mr Frank could be possessive. She said Mr Frank had recently been agitated as he was starting a new job and adjusting his medication.
[7] At around 8:00 am on Saturday, 15 April 2017, Mr Frank approached the victim while she was sitting in bed. He was carrying a large carving knife. Mr Frank stabbed Mrs Frank twice in the torso, once in her chest and once near her right underarm. One stab wound was 13 cm deep. The other was 15 cm deep. The stab wounds punctured both the victim’s lungs and caused massive internal bleeding.
[8] At around 8:25 am, Mr Frank called emergency services and told the ambulance operator he had just stabbed his wife. Police soon arrived at the bach. Mrs Frank was found sitting on a couch in the living room, where she was in pain and having difficulty breathing. As a police officer attempted to staunch the bleeding, Mrs Frank said “he did it”.
[9] Mrs Frank passed away while being airlifted from Taupo to Waikato Hospital. The post-mortem concluded her injuries were unsurvivable.
[10] Mr Frank is currently being held at the Puna Maatai Forensic Inpatient Unit
at Waikato Hospital, Hamilton (“Puna Maatai”).
Approach
[11] This matter falls to be considered under s 20 of the Criminal Procedure
(Mentally Impaired Persons) Act 2003 (the “Act”).
[12] Section 20 of the Act relevantly 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.
[13] In R v Tamati-Moka,2 Brewer J explained the genesis of the Act’s s 20.3 He continued to explain its operation:
[11] … There is no plea. There is an indication of an intent to raise the defence at the trial. If the prosecution agrees that the defence must succeed then the Judge must find the defendant not guilty on account of insanity if he or she is satisfied that the defendant was insane at the time of the commission of the offence. In… giving the indication for the purpose of s 20 the defendant is conceding that the charge or charges can be proved, but is contending that there is no culpability because of insanity.
[12] It follows that there is no level of proof of the elements of the offending that need be determined by a Judge who is considering the issue of insanity. That is, none beyond that which would arise on any occasion that an accused person offers a plea of guilty and the Judge wishes to be sure there is a proper basis to accept it.
[13] There are inherent vulnerabilities when mental health problems exist. Lawyers can be instructed to give indications despite the evidence. A self-represented defendant can have their own view of what constitutes responsibility for events. A Judge must be satisfied there is a proper background of evidence on which a finding of not guilty on account of insanity can be made.
[14] A Judge can be satisfied there is a proper background, in my view, if the evidence would withstand an application for discharge under s 147 of the Criminal Procedure Act 2011. If the evidence is sufficient that a reasonable Judge or jury, properly directed, could reasonably convict the defendant on the charges brought, then that is enough. That is the threshold which all prosecution cases must cross in order to be viable.
Is there sufficient evidence on which Mr Frank could be convicted?
[14] There is no question Mr Frank stabbed Mrs Frank as I have described. Mr Frank accepts the Crown’s summary of facts.4 In addition, while being processed at Taupo Police Station, he admitted to stabbing Mrs Frank.
[15] I am satisfied, assuming Mr Frank was sane at the time, there is evidence from which an inference of the relevant intention to kill required for the charge of murder could properly be drawn.
[16] I am thus satisfied there is a proper evidential basis or evidential background for me to consider the issue of insanity.
Was Mr Frank insane at the time he stabbed the victim?
[17] Section 20 of the Act requires me to find Mr Frank not guilty on account of his insanity if satisfied, on the basis of expert evidence, Mr Frank was insane within the meaning of s 23 of the Crimes Act 1961 (“Crimes Act”) at the time he stabbed Mrs Frank. 5
[18] Section 23 of the Crimes Act relevantly states:6
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.
…
[19] Three psychiatric reports have been provided to the Court. They are the reports of Dr Shailesh Kumar dated 9 May 2017 and 25 September 2017, and Dr Rees Tapsell dated 8 August 2017. With the consent of counsel for both the Crown and for Mr Frank, I exercise my discretion to admit these psychiatric reports into evidence without formal proof.
—Dr Kumar’s report
[20] Dr Shailesh Kumar is a specialist forensic psychiatrist with 18 years’
experience practising psychiatry in New Zealand.
[21] As I noted, he has provided two reports. The first is a forensic psychiatric report under s 38(2)(c) of the Act. The second is his psychiatric opinion as to whether Mr Frank was insane when he stabbed and killed the Mrs Frank.
[22] Dr Kumar outlined Mr Frank’s extensive history of mental health issues. Mr Frank was diagnosed with bipolar affective disorder in 1987, and has been involved with mental health services for around 30 years. He has been on medication since his diagnosis in 1987. His diagnosis came after he developed “delusions” he was “more special than an average person, had high powers, could read words and shapes in the sky and could derive meaning from the shape of clouds”.
[23] Dr Kumar noted Mr Frank’s lifelong adherence to Judaism and described him
as devout.
[24] Dr Kumar cited a 2014 report describing Mr Frank as becoming “enmeshed in checking obsessions” as well as having “paranoid and narcissistic traits”. For example, he formed the (baseless) belief a congregant at his synagogue was a paedophile. He believed a different member of the congregation was spreading rumours about his marriage, including rumours of infidelity. He believed his neighbours were running a P lab from their house.
[25] Dr Kumar also outlined Mr Frank found meaning in other people’s mannerisms. In 2016, Mr Frank discussed with his psychiatrist he could tell how people felt about him from their mannerisms:
If they touched their nose they had derogatory thoughts about him or if they touched their eyes, it was positive and they felt for him.
[26] In the months preceding the offending, Mr Frank became convinced his computer had been hacked, and he fell out with the local Jewish community. Dr Kumar said in the weeks preceding the offending Mr Frank:
… started brooding over the disagreements he had with the [Jewish] congregation in the last 10 years.… His sleep deteriorated, thoughts started racing and he felt he had more energy than usual which he often spent in investigating his suspicion about his computer being hacked.
[27] Dr Kumar sums up Mr Frank’s history with mental illness:
…in the last three decades, Mr Frank has presented with mixed affective symptoms (feeling overwhelmed, nihilistic thoughts, low mood, suicidal thoughts), psychotic symptoms (referential and paranoid delusions) and ruminating with obsessive beliefs (difficulty in switching off or relaxing for several months at a time). He had experienced a recent deterioration in the context of being exposed to multiple stressors in around December 2016.
[28] Four days before Mr Frank went to Taupo, he met with his psychiatrist after reporting feeling overwhelmed, and after calling Mrs Frank because he was upset “this is the end”. His psychiatrist increased his dosage of medication.
[29] Mr and Mrs Frank organised to spend the weekend in Taupo “in the hope that the low stimulus environment” would benefit Mr Frank’s mental state. Mr Frank told Dr Kumar he began seeing trees or cars that appeared “perfect” on the drive to Taupo. He said he had visions of the number “3” on his hand, which he interpreted as meaning there were either three minutes, three days, or three weeks before the end of the world. Mr Frank saw faces appear on his fingernails, and the initials “JC” (for Jesus Christ) appear on his fingers.
[30] Dr Kumar described Mr Frank’s offending as follows:
Shortly after retiring to bed Mr Frank said suddenly a thought popped up “both of us will rise in heaven if I kill her”. At his previous interview with me (on 3 May 2017) Mr Frank had said he had believed according to [the] Jewish calendar [the] end of the world was coming and if his wife died “a bad death” in the hands of a believer like him, she would rise to heaven. This, he said, was based on the story of Abraham that in the beginning of time God had tested his faith by asking him to sacrifice his son. …Mr Frank said the thought that he should kill his wife and … both of them would rise to heaven kept playing through his mind.
[31] Dr Kumar concluded Mr Frank was suffering from schizoaffective disorder, defined as “an uninterrupted period of illness during which, at some time, there is a major depressive, manic or mixed episode” at the time of the offending. Dr Kumar
describes schizoaffective disorder as a “major mental illness” usually accepted as constituting a “disease of the mind”.7
[32] Dr Kumar further concluded at the time of the offending Mr Frank was incapable of knowing his actions were morally wrong. Discussing the effect of Mr Frank’s delusions, Dr Kumar said:
For somebody [with strong religious convictions] the experience of religious delusions that he had been instructed by God to stab his wife as a test of his faith and a grandiose delusion that he was the messiah who by killing his wife could rise to heaven with her, would be overwhelming.
[33] Dr Kumar addressed the possibility Mr Frank killed Mrs Frank deliberately, possibly over a dispute about her attendance at a wedding in Melbourne without him, and is using his mental health issues as an excuse. However, Dr Kumar concluded Mr Frank was not malingering. He based this on the persistence of Mr Frank’s schizoaffective disorder symptoms after being admitted to Puna Maatai. These symptoms were observed for weeks after Mr Franks was admitted and only subsided after Mr Franks had commenced a new course of antipsychotic medication.
—Dr Tapsell’s report
[34] Dr Rees Tapsell is a consultant psychiatrist with the Waikato District Health
Board.
[35] Like Dr Kumar, Dr Tapsell notes previous psychiatric reports describing Mr Frank as having paranoid and narcissistic personality traits, as well as having grandiose ideas and thinking of himself as the “new Messiah”.
[36] Dr Tapsell also notes the importance of Mr Frank’s Jewish faith to his life.
[37] Dr Tapsell’s description of Mr Frank’s mental state in the weeks prior to the offending is similar to Dr Kumar’s. Mr Frank believed his computer was being
hacked, and came into conflict with a neighbour he believed was poisoning his tree.
7 For example, in R v KTK HC NAP CRI-2005-020-726 [25 August 2006] Heath J found a defendant suffering from schizoaffective disorder was not guilty on account of insanity.
Mr Frank’s children described him as being “unwell” in the weeks before the offending, and commented his paranoia and grandiosity seemed heightened.
[38] On the night before the offending, Mr Frank:
…became preoccupied with the thought that he was the Messiah and that as the Messiah, God wanted him to take the life of his wife so that he (as the Messiah) and she “would rise into the heavens” in order to avoid the “end of days”… Ultimately, he told [Dr Tapsell] that he felt compelled to act on this belief.
[39] Following his admission to Puna Maatai, Mr Frank continued to express his belief he was the Messiah.
[40] Dr Tapsell concluded Mr Franks was suffering from schizoaffective disorder, which in his opinion is a ‘disease of the mind’, at the time of the offending.
[41] Mr Frank’s description of his thoughts and motivation ahead of the offending was consistent with his psychiatric history. He described being motivated by God’s instructions, and was convinced “he had to kill his wife and did not consider that it was wrong”.
[42] Based on this, Dr Tapsell was satisfied Mr Frank was suffering from a disease of the mind at the time of the offending, rendering him incapable of knowing his actions were morally wrong. Dr Tapsell concluded the defence of insanity is available to Mr Frank.
[43] Both Dr Kumar and Dr Tapsell concur the defence of insanity is available to Mr Frank, due to his suffering a disease of the mind at the time he committed the offending that rendered him incapable of realising his actions were morally wrong. Their reports are unchallenged.
—Decision
[44] I must be satisfied, on the balance of probabilities, Mr Frank was insane at the time of his offending.8
8 R v Tamati-Moka [2017] NZHC 2037 at [32].
[45] I am satisfied to that standard, on the morning of 15 April 2017, Mr Frank was suffering from a disease of the mind (schizoaffective disorder) to the effect he believed he was instructed by God to kill Mrs Frank to secure her passage to heaven. Labouring under this disease of the mind, I am satisfied that Mr Frank was incapable of realising stabbing his wife was morally wrong.
[46] I am therefore satisfied Mr Frank was insane within the meaning of s 23 of the Crimes Act when he committed the offending. Accordingly, I find Mr Frank not guilty of the charge of murder on account of his insanity.
What is the most suitable method of dealing with Mr Frank?
[47] Having found Mr Frank insane at the time of his offending, s 23 of the Act applies. Section 23 provides:
23 Inquiries about persons found unfit to stand trial or insane
(1) When a person is found unfit to stand trial or is acquitted on account of his or her insanity, the court must order that inquiries be made to determine the most suitable method of dealing with the person under section 24 or section 25.
(2) For the purposes of the inquiries under subsection (1), the court must either—
(a) make it a condition of a grant of bail that the person go to a place approved by the court for the purpose of the inquiries; or
(b) remand the person to a hospital or a secure facility.
Section 24 of the Act provides for the detention of such a defendant as a special patient or special care recipient; if an order under s 24 is unnecessary, s 25, providing for alternative decisions in respect of Mr Frank, applies.
[48] Both Dr Kumar and Dr Tapsell advocate for Mr Frank to continue receiving treatment at Puna Maatai. Dr Tapsell says Mr Frank is early in the course of his treatment. Further, despite the improvement in Mr Frank’s mental state, Dr Tapsell cautions Mr Frank’s mood “is likely to deteriorate” (to the point at which he may be at “significant risk of self-harm”) once he realises the “enormity of what he has done”. Dr Tapsell recommends Mr Frank be remanded to Puna Maatai.
[49] Dr Kumar similarly states Mr Frank is “clearly benefiting” from his treatment at Puna Maatai. However, while he is improving, Mr Frank still thinks he can see special signs in the sky and has at times been belligerent towards other patients.
[50] While the psychiatrists recommend, in general terms, Mr Frank be remanded to Puna Maatai, their reports do not assess specifically what orders should be made regarding Mr Frank. At least one health assessor psychiatrist must specifically advise whether Mr Frank should be detained either as a special patient or as a special care recipient under the respective relevant legislation. I also require some foundation (whether or not from a health assessor) to be satisfied such detention is necessary in the interests of the public, or of any person or class of people who may be affected by my decision. If the health assessor advice is Mr Frank’s detention is not necessary, at least one health assessor psychiatrist must also specifically advise whether Mr Frank is mentally disordered, or to receive care for an intellectual disability.
Disposition
[51] I order further inquiries be made to assess the most appropriate way of dealing with Mr Frank under s 24 or s 25 of the Act.
[52] For the purposes of those inquiries, I order Mr Frank be remanded at Puna Maatai until Friday, 24 November 2017 at 10 am for the purposes of a disposition hearing.
—Jagose J Postscript: Since delivering judgment in this matter, my own diary has turned out to
be conflicted. With the consent of both counsel, I amend my order, remanding Mr Frank at Puna Maatai until Friday, 1 December 2017 at 9am for the purposes of a disposition hearing.