R v Gill - [2021] NZHC 1659

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2020-044-1736

[2021] NZHC 1659

THE QUEEN

v

RAYMOND EDWARD SHANE GILL

Defendant

Date of Hearing: 2 July 2021

Appearances:

H Steele and E Kerr for the Crown R Thomson for the Defendant

Date of Minute:

2 July 2021

ORAL JUDGMENT OF POWELL J

[Determination of insanity and disposition]

R v GILL [2021] NZHC 1659 [2 July 2021]

[1] We are here today because Raymond Gill has been charged that on 4 June 2020 he murdered Shivam Sharma and wounded Mayur Masand with intention to cause him grievous bodily harm.

[2] For reasons that Mr Steele has already touched upon today and which I will set out more later in this judgment, Mr Sharma’s killing and Mr Masand’s wounding are a very real tragedy. As I have already done in Court, I will do again at the outset of this judgment; it is appropriate to note that today would have been Mr Sharma’s 27th birthday. I would like to acknowledge Mr Masand again, and the family, friends and supporters of both the victims who are in Court here in person, or via VMR, for your presence today. I would also like to acknowledge Mr Gill’s mother and sister, as for you too this is also a tragedy.

[3] Mr Gill’s trial for murder and wounding was scheduled to commence next Monday, 5 July 2021 and I was to be the trial Judge. This hearing today was convened because s 20(2) of the Criminal Procedure (Mentally Impaired Persons) Act 2003 (“CPMIP”) has been engaged. This section provides that, before trial, a Judge must record a finding that a defendant is not guilty on account of his or her insanity if:

(a)the defendant has indicated that he or she intends to raise the defence of insanity;1

(b)the prosecution agrees that the only reasonable verdict is not guilty on account of insanity;2 and

(c)the Judge is then 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.3

[4] The position we have got to is that there is no dispute that Mr Gill has pleaded not guilty on the grounds of insanity which is the first part of s 20. The Crown, through Mr Steele and Ms Kerr, have filed a memorandum formally agreeing that the only

1      CPMIP, s 20(2)(a).
2      CPMIP, s 20(2)(b).
3      CPMIP, s 20(2)(c).

reasonable verdict on both charges is not guilty on account of insanity. It is now necessary for me to determine whether I am satisfied, on the basis of the expert evidence, that Mr Gill was insane within the meaning of s 23 of the Crimes Act at the time of the commission of the offences.

Involvement

[5] It is implicit in s 23 that before I can find Mr Gill not guilty by reason of…

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.

Continue reading R v Gill

Details

AGLC: R v Gill [2021] NZHC 1659
Case: [2021] NZHC 1659
Decision Date: 2 July 2021

CaseChat Overview and Summary

Raymond Edward Shane Gill was charged with the murder of Shivam Sharma and the wounding of Mayur Masand with intent to cause grievous bodily harm. Gill intended to plead not guilty on the grounds of insanity. The Crown did not oppose this plea and Powell J was required to determine if Gill was insane within the meaning of section 23 of the Crimes Act 1961 at the time of the offence. Powell J found that Gill was involved in the offending, as there were witnesses to the attack and Gill's accounts did not dispute the facts. Powell J considered expert evidence from five psychiatrists and concluded that Gill was suffering from a chronic psychotic illness, variously described as both schizophrenia and schizoaffective disorder with symptoms of psychosis and major mood disorder. Powell J found that the offending was committed in consequence of Gill's mental illness and that he was incapable of knowing that his acts were morally wrong. Powell J recorded a finding that Gill was not guilty by reason of insanity. Powell J found that the appropriate disposition was for Gill to be detained in hospital as a special patient pursuant to section 24(2)(a) of the Criminal Procedure (Mentally Impaired Persons) Act 2003. This order was necessary in the interests of the public, both from the perspective of protecting the public from further offending and also to ensure that Gill is managed and treated in a manner best calculated to address the issues that he faces.
Powell J made an order that Gill is to be detained in hospital as a special patient pursuant to section 24(2)(a) of the Criminal Procedure (Mentally Impaired Persons) Act 2003.

Orders