R v Frank - [2017] NZHC 2587

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 Defendant

Judgment:

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2017] NZHC 2587
Decision Date: 24 October 2017

CaseChat Overview and Summary

In the High Court of New Zealand Rotorua Registry, Simon Harvey Frank faces one charge of murder. The deceased is his wife, Petra Frank. Mr Frank's counsel indicated that he intends to raise his insanity as a defence. The Crown Solicitor agrees that the only reasonable verdict on the charge is one of not guilty on account of insanity. The court had to decide whether Mr Frank was insane within the meaning of s 23 of the Crimes Act 1961 at the time of the commission of the offence. The court found that there is a proper evidential basis or evidential background for the court to consider the issue of insanity. The court was satisfied, on the basis of expert evidence, that Mr Frank was insane within the meaning of s 23 of the Crimes Act when he committed the offending. Accordingly, the court found Mr Frank not guilty of the charge of murder on account of his insanity. The court ordered further inquiries be made to assess the most appropriate way of dealing with Mr Frank under s 24 or s 25 of the Criminal Procedure (Mentally Impaired Persons) Act 2003. For the purposes of those inquiries, the court ordered Mr Frank be remanded at Puna Maatai until Friday, 1 December 2017 at 9am for the purposes of a disposition hearing.

Orders