R v Gill
[2021] NZHC 1659
•2 July 2021
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 insanity, I must first conclude that he was involved in the offending.4 On this first issue there can be no doubt.
[6] The offending took place at a boarding house where Mr Gill lived along with Mr Sharma and Mr Masand. All three knew each other although Mr Gill did not know Mr Masand and Mr Sharma well.
[7] Mr Masand was obviously able to provide a description of Mr Gill’s actions to Police. Other witnesses saw Mr Gill at the address following the death of Mr Sharma, and the wounding of Mr Masand, and Mr Gill was found covered in blood in his room following the attack. Mr Gill’s own accounts of what took place over time do not dispute his involvement and he has now, through Ms Thomson, formally accepted the facts as set out in the summary of facts.5
[8] When these matters are added to the nature of the unprovoked attack on Mr Sharma and Mr Masand and the injuries that were caused, I am satisfied that but for the mental health issues that I will now consider, the offending would have been committed as charged.
Insanity
[9] Having established Mr Gill’s involvement, I am then required to consider, as noted with reference to s 23 of the Crimes Act, whether Mr Gill is not guilty by reason of insanity. Section 23(2) of the Crimes Act relevantly provides:
4 See R v M [2014] NZHC 605 at [14].
5 Evidence Act 2006, s 9.
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.
[10] In this case the necessary expert evidence has been placed before me in no less than five different reports on the issue of whether Mr Gill meets the legal definition of insanity in the commission of the offence.6 All five reports are from psychiatrists; being Dr Ng, Dr Jacques, Dr Pillai, Dr Jansen and Dr Goodwin. Together those reports set out a consistent picture of Mr Gill’s longstanding mental health issues since they first emerged in or around 2010.
[11] It is not necessary for the purposes of this judgment to go into any great detail, but the reports describe Mr Gill suffering from a chronic psychotic illness, variously described as both schizophrenia and schizoaffective disorder with symptoms of psychosis and major mood disorder. The reports detail how Mr Gill appears to have experienced intermittent psychotic symptoms for most of the last 10 years. These symptoms include entrenched bizarre and religious delusions including the belief that he is in direct telepathic contact with Tyra Banks (an American model and actress), with a supreme God, and Satan. Over the past decade Mr Gill has been subject to both impatient and outpatient compulsory treatment orders and has been hospitalised as a special patient on two occasions. Mr Gill’s condition is complicated by a diagnosis of polysubstance abuse disorder – that is abuse of both alcohol and drugs over a long period, as well as antisocial personality disorder.
[12] It is clear working through the different accounts that have been given that there were a number of different symptoms that were active on 4 June 2020 including in particular, auditory hallucinations that Mr Gill thought were telling him to kill somebody so as to save the world.
6 A sixth report by Dr Wee Lee Chua, dated 25 September 2020, commissioned to address whether Mr Gill was fit to plead also “formed an opinion that a disease of the mind was present at the time of Mr Gill’s alleged offending” and recommended further reports be commissioned to address insanity.
[13] The first two reports that were prepared by Dr Ng and Dr Jacques formed the view that Mr Gill was insane at the time of the offending. The report by Dr Pillai however, although accepting of Mr Gill’s underlying mental health issues, questioned whether the offending occurred as a result of those issues or as a result of extreme levels of intoxication.
[14] As a result of the questions posed by Dr Pillai, the last two of the five reports were prepared by Dr Jansen and Dr Goodwin. Both Dr Jansen and Dr Goodwin concluded that the offending was committed in consequence of Mr Gill’s mental illness, a disease of the mind in terms of s 23 of the Crimes Act, and meant that he was unable to know that his acts were morally wrong.
[15] Having had the opportunity to read all of the reports carefully, I defer to the weight of medical opinion set out in the reports of Dr Ng, Dr Jacques, Dr Jansen and Dr Goodwin and, in particular, Dr Jansen’s analysis of Dr Pillai’s concerns. In addition, I note that, notwithstanding his conclusions, Dr Pillai did not dispute the utterly serious nature of Mr Gill’s mental health issues and there is a clear consensus that emerges from the reports as to how serious those are. It is also not clear on the evidence that is before me, the extent to which Mr Gill was in fact intoxicated, whether through drugs or alcohol or both, at the time the offending occurred on 4 June 2020. Mr Gill’s own accounts are inconsistent and there is little in the way of external evidence of the quantities of drugs or alcohol that were consumed, or indeed the time period over which they might have been consumed. In particular, I note there is no blood or breath testing that was done post the offending. As a result, while Dr Pillai remarked about Mr Gill’s presentation when he was interviewed shortly after the offending as being perhaps inconsistent with a verdict of insanity, it would appear even more inconsistent had Mr Gill been intoxicated at the level posited by Dr Pillai.
[16] Taking all of these matters together and in particular the detailed and disturbing explanations given by Mr Gill and recorded by the different psychiatrists, I conclude that the offending in this case is inexplicable on any rational basis.7 This leads
7 R v Smith (1995) 12 CRNZ 616 (CA) at 623.
inevitably to the conclusion Mr Gill was incapable of forming the necessary rational moral judgment in relation to his actions.
[17] Overall, I conclude in terms of s 20 of the CPMIP that Mr Gill was insane at the time he killed Mr Sharma and wounded Mr Masand and I record that finding accordingly. Although therefore Mr Gill killed Mr Sharma and wounded Mr Masand, he is not guilty by reason of insanity.
Disposition
[18] This then leads to the issue of disposition. When a Court has made a finding of not guilty by reason of insanity, s 23 of CPMIP is engaged and this requires a Court to make enquiries to determine the most suitable method of dealing with the offender in terms of two other sections of that Act.8 Normally at this point it would be necessary for an adjournment to take place to enable further reports to be prepared. Indeed, in this case we had been looking at an adjournment through until September to acquire the necessary reports. But as you have heard from Mr Steele, Dr Pillai has prepared a report this morning with the recommendation that Mr Gill is detained as a special patient pursuant to s 24(2)(a) of CPMIP.
[19] Having discussed the issue with counsel and considered the matter this morning, while Dr Pillai’s report received today is necessarily brief it comes on the back of the five detailed reports that I have already referred to and, given the conclusions in those reports, it is quite clear that the disposition proposed by Dr Pillai is appropriate.
[20] While the Court of Appeal has made it clear that this Court must consider all of the relevant circumstances of the case,9 it is quite clear from the evidence before me that the order proposed is necessary in the interests of the public. It is necessary both from the perspective of protecting the public from further offending and also to ensure that Mr Gill is managed and treated in a manner best calculated to address the issues that he faces.
8 CPMIP, s 24 and 25.
9 M (CA 819/2011) v R [2012] NZCA 142, (2012) 28 FRNZ 773.
[21] In reaching this conclusion I take into account Mr Gill’s previous criminal history which involves something like 104 offences over 22 years including violent offending, property and drug offences. In those circumstances and given the mental health issues that I have identified, and indeed the extreme violence shown in this case, there can be absolutely no doubt Mr Gill presents a heightened risk to the public. Any lesser response would simply not address the ongoing risk that Mr Gill poses or the needs that he has, and I note that Ms Thomson supports the orders proposed on behalf of Mr Gill.
[22] I therefore make an order that Mr Gill is to be detained in hospital as a special patient pursuant to s 24(2)(a) of the Criminal Procedure (Mentally Impaired Persons) Act 2003.10
Powell J
10 This requires Mr Gill to be treated as a special patient under the Mental Health (Compulsory Assessment and Treatment) Act 1992. Importantly, this means that it will be for the Minister of Health to determine how long this order is to remain in force per s 33(2) of the Criminal Procedure (Mentally Impaired Persons) Act 2003.