R v K

[2020] NZHC 1350

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2019-092-11229

[2020] NZHC 1350

THE QUEEN

v

K

Hearing:	25 March 2020
Appearances:	G R Kayes for Crown K Allen for Defendant
Judgment:	16 June 2020

JUDGMENT OF PETERS J

This judgment was delivered by Justice Peters on 16 June 2020 at 2 pm pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar Date: ...................................

Solicitors:Kayes Fletcher Walker Ltd, Crown Solicitor, Manukau Public Defence Service, Manukau

R v K [2020] NZHC 1350 [16 June 2020]

[1]    As a result of events in August and October 2019, K was charged with the offences listed below (“charges”) and remanded to Mt Eden Corrections Facility. It was apparent from an early stage that it would be necessary to investigate whether K was fit to stand trial by reference to the procedures in the Criminal Procedure (Mentally Impaired Persons) Act 2003 (“CPMIP”).

[2]    Following a hearing on 12 March 2020, and pursuant to s 8A CPMIP, I determined K was mentally impaired but fit to stand trial.1 Counsel for K, Ms Allen, then advised K proposed to raise the defence of insanity to the charges.

[3]    Section 20 CPMIP sets out the procedure to be followed in that event. If the prosecution agrees the only reasonable verdict is not guilty on account of insanity, then a Judge must determine, on the basis of expert evidence, whether the defendant was insane within the meaning of s 23 Crimes Act 1961 at the time of commission of the offence(s).

[4]    Having considered its position, the Crown agreed the only reasonable verdict would be not guilty on account of insanity. On 25 March 2020, I conducted a hearing on the relevant issues. With New Zealand about to go into Alert Level 4 lockdown in response to COVID-19, I issued a results judgment that recorded a finding K was not guilty of the charges on the ground of insanity.2 These are my reasons.

Charges

[5]    Before proceeding, I must first be satisfied K has committed the offending, or conduct, with which he has been charged. These are:

(a)threatening behaviour on 8 August 2019;3

(b)unlawfully being in an enclosed yard on 16 October 2019;4

1      R v K [2020] NZHC 504.

2      R v K [2020] NZHC 646.

3      Summary Offences Act 1981, s 21(1)(a) — maximum penalty of 3 months’ imprisonment or a

$2,000 fine.

4      Section 29(1)(b) — maximum penalty of 3 months’ imprisonment or a $2,000 fine.

(c)inciting murder on 23 October 2019;5 and

(d)resisting arrest on 23 October 2019.6

[6]The undisputed events giving rise to these charges are as follows.

Threatening behaviour

[7]    On 7 August 2019, K’s former sister-in-law posted a photograph of one of K’s children on Facebook. K commented on the post the next day saying “Anyone who gets in the way of me and my kids will be shot in the head I don’t gve a fuck any more I had enough… OTARA WE SHOT TO KILL… SO YOUR WHOLE FAMILY IS WARNED”. At the time of the post, K was admitted to Tiaho Mai, the mental health unit of Middlemore Hospital under the governance of Counties Manukau DHB.

[8]    K was charged with threatening behaviour, appeared in Court and was released on bail.

Unlawfully in enclosed yard

[9]    Some two months later, on 16 October 2019 and whilst still on bail, K used a ladder to scale a fence enclosing the yard at the Otahuhu Police Station. Inside the yard, K approached an off-duty police officer and asked to be let into the station, saying he had misplaced his swipe card. K said he was a member of a special police unit and made various requests, including to speak to a senior sergeant about an ongoing investigation. K was escorted from the premises and later charged with unlawfully being in an enclosed yard.

Resisting arrest/inciting murder

[10]   The next incident occurred on 23 October 2019 when K resisted arrest for breach of bail. At about the same time, the police learned of a public post on K’s Facebook page, encouraging gang members to harm police officers. One of these read “Gang notice. Drop a cop we pay you 5K. Have to send me video az proof. And take

5      Crimes Act 1961, s 174 — maximum penalty of 10 years’ imprisonment.

6      Summary Offences Act, s 23(a) — maximum penalty of 3 months’ imprisonment or a $2,000 fine.

the uniform, Kia ora. Kind regards. 88s”. K was subsequently charged with resisting arrest and inciting murder.

[11]   On the basis of this information, the substance of which is undisputed, I am satisfied K has committed the acts with which he is charged.

Section 20 CPMIP/s 23 Crimes Act 1961

[12]I referred above to s 20 CPMIP, which relevantly provides:

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]   Sections 20(2)(a) and  (b) being satisfied, this judgment is  concerned  with    s 20(2)(c) which requires K to satisfy me on the balance of probabilities and on the basis of expert evidence that he was insane within the meaning of s 23 Crimes Act at the relevant times.

[14]Section 23 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.

(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.

(4)The fact that by virtue of this section any person has not been or is not liable to be convicted of an offence shall not affect the question whether any other person who is alleged to be a party to that offence is guilty of that offence.

[15]   Accordingly, K is presumed sane unless he establishes the criteria in s 23(2). The first is that I must be satisfied K was labouring under natural imbecility or, in this case, a disease of the mind at the time of the offending. If so, I must be satisfied the disease so affected K he was rendered incapable either of understanding the nature and quality of his acts or of knowing the acts were morally wrong having regard to the commonly accepted standards of right and wrong.

Expert evidence

[16]   I have expert evidence from two experienced consultant psychiatrists, being Dr  Kyros  Karayiannis  (reports  of   23 January  and   18   February  2020),   and  Dr Surendhraj Naidu (reports of 10 February and 11 March 2020). Each met K and undertook a thorough review of K’s psychiatric history and information relevant to the charges.

Psychiatric history

[17]   What follows is a summary of the information I have regarding K and K’s family’s interactions with mental health services during the relevant period.

[18]   K has been receiving treatment from mental health services since 2002, with admissions as an inpatient in 2002, 2004, 2016 and 2019. K has been subject to community treatment orders on various occasions. However, K has had a consistent diagnosis of Bipolar Affective Disorder, symptoms of which include an irritable and elevated mood, grandiosity, increased suspiciousness of others, grandiose and persecutory delusions, disinhibited or aggressive or reckless behaviour, racing and/or

disordered thoughts, insomnia, a reduction in appetite and a profound loss of insight into his mental health needs and behaviours. These behaviours are particularly exhibited when K fails to take his medication which, on the information before me, is a frequent occurrence.

[19]   For present purposes, the relevant history commences in late-June 2019 when K’s sister contacted Community Mental Health (“CMH”), concerned K’s “bipolar is full-on”, that K was aggressive, and believed himself to  be  the  “boss”  of  the  Head Hunters. Shortly after this, on 1 July 2019, K was found on a private, clifftop residence in Devonport, Auckland. K told one of the occupants his presence, and his scaling of the cliff, was part of a Navy exercise. K also advised he was working on a building site next door, which he was not. K also demonstrated what were described as “kung fu” moves.

[20]   Two weeks after that, on 14 July 2019, K threatened the occupants of a house near his sister’s, again saying he was a member of the Head Hunters. Also at about this time, K’s parents contacted CMH, advised K was not taking his medication, was exhibiting signs of a “relapse”, and believed himself to be a member of a criminal gang, with other members of the gang “after him”. On 26 July 2019, K’s father also advised CMH that in the last week, K had twice assaulted members of the family. CMH’s subsequent attempts to engage with K were unsuccessful.

[21]   On 29 July 2019, following another call from K’s family, K was admitted to Tiaho Mai. Admission notes describe K as manic, irritable, aggressive, spending excessively and unwisely, and as having failed to adhere to his prescription medications for approximately six months.

[22]   In early August 2019, a psychiatrist assessed K’s behaviour as considerably better than prior to admission. K’s family, however, reported receiving threatening texts from K.

[23]   The first offence referred to above was committed on or about 8 August 2019. K was assessed that day as being “polite and pleasant”, with “clear, coherent and goal- directed” thoughts. Despite this, K later left the ward without telling anyone or

obtaining permission. He visited his family, who reported he was “speaking really fast” and “would not stop”. This was not the first occasion on which K had left the ward. In fact, he had been permitted to leave within a week of his admission but returned much later than the stipulated time.

[24]   On 10 August 2019, the police returned K to the ward, following a member of the public’s report that K was standing in the middle of the road. K advised he had attended a Jehovah’s Witness convention and that this was the “true religion”. After this, K declined blood tests (consistent with Jehovah Witness beliefs), and often absented himself from the ward.

[25]   On 20 August 2019, K was discharged to a respite facility, his parents having obtained a protection order on the grounds K had been violent to family members. On 30 August 2019, K left the respite facility, provided no forwarding address and left his medication behind. When CMH contacted K on 31 August 2019, he answered the telephone “New Zealand Police”. CMH arranged for fresh medication to be delivered to K later that day.

[26]   On 6 September 2019, K’s sister again contacted CMH. She reported K was unwell, grandiose, talkative and agitated, and she believed K was not taking his medication. CMH were not able to contact K.

[27]   On 16 October 2019, K’s father and sister each contacted CMH again. Both advised K was showing increasingly aggressive behaviour. The unlawfully being in an enclosed yard offending took place the same day.

[28]   On 18 October 2019, Dr Andrew Turbott, a consultant psychiatrist at CMH, assessed K. Dr Turbott’s notes record K was largely stable, his bipolar symptoms appeared in remission, K exhibited some delusional thinking and made some claims as to a friendship with a well-known sporting figure (although it was not beyond the realms of possibility those claims were correct).

[29]   On 20 October 2019, K told the police he had recently broken into the Otahuhu Police Station and that he was involved in money laundering and drug distribution.

Two days later, K attended a local police station, saying he wished to join the police, spoke about firearms and told those present he was a “good shot”.

[30]   On 23 October 2019, and following a telephone conversation with K, a psychologist, Ms Natalie Coynash reported to Dr Turbott that K was deteriorating, that she was concerned about the risk K presented and that K was declining contact with CMH. At about the same time, K’s sister again reported concerns regarding K’s state. For instance, K’s sister advised K believed he had purchased an apartment, although K did not have the financial means to do so. Dr Turbott conducted a further urgent review, noting that, despite his relatively positive presentation on 18 October 2019, K was deteriorating and becoming “manic and psychotic”.

[31]   It was on this day that K was arrested on the resisting arrest and inciting murder charges. A nurse who assessed K on arrest noted his “conversation was all over the place at times but he was clear, rational”, although K voiced “delusional thoughts” about being a police informant.

[32]   Dr Turbott assessed K again on 24 October 2019, noting K was having suspected grandiose delusions and showing increased aggression. After police attended K’s family address, they assessed the “best case scenario” was K had taken only five days’ worth of medication in the last 20 days. Further assessments followed at the Manukau and then Auckland District Courts and Dr Jeremy Skipworth, another consultant psychiatrist, reviewed K in November 2019.

[33]   It follows from the above chronology that there are numerous, contemporaneous accounts, some expert and some not, as to K’s mental state during the relevant period, that is between August and October 2019. Fortunately, since then K’s condition has, or appears to have, improved, no doubt because he has been taking his prescribed medication. It was in those circumstances Drs Karayiannis and Naidu interviewed K earlier this year.

Disease of the mind

[34]   Each of Drs Karayiannis and Naidu refer to K’s consistent diagnosis as suffering from Bipolar Affective Disorder. Dr Naidu considers this the correct

diagnosis. Dr Karayiannis does not disagree but for several reasons questions whether K’s illness may be better defined as a Schizoaffective Disorder as, amongst other things, K appears to “harbour delusional beliefs in the absence of an abnormal mood”.

[35]   Each of these two disorders constitutes a severe psychotic mental illness. Whichever diagnosis may be the more accurate, each constitutes a disease of the mind for the purpose of s 23(2). It follows I am satisfied K was labouring under a disease of the mind at the relevant time and thus that element of s 23(2) is established on the evidence.

Nature of the acts/morally wrong

[36]   The first limb of s 23(2)(a) upon 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.7 In Principles of Criminal Law, Professor Brookbanks notes that “[v]irtually all cases falling under the ‘nature and quality’ limb involve (insane) automatism”.8

[37]   The second limb of s 23(2)(b) upon 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 In R v Chand, Winkelmann J (as she then was) said:10

[25]  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 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.

7      AP Simester and WJ Brookbanks Principles of Criminal Law (5th ed, Thomson Reuters, Wellington, 2019) at 454.

8      At 455.

9      R v MacMillan [1966] NZLR 616 (CA) at 619.

10     R v Chand [2012] NZHC 2745.

[38]The second limb is the pertinent limb in this case.

[39]   Dr Naidu is satisfied that, at the time of all of the offending, K was so affected by his illness that he was incapable of knowing his acts were morally wrong. This is because K would have been delusional and therefore unable to think rationally about the reasons that made the acts morally wrong to an ordinary person.

[40]   In reaching this conclusion, Dr Naidu refers to K’s status as an inpatient at Middlemore Hospital at the time of the threatening behaviour offending, K having failed to take his medication prior to being admitted, K’s displayed irritability, agitation and aggression, his absences from the ward, and the report that K had been observed standing in the middle of the road.

[41]   Dr Naidu also considers there is clear clinical evidence K’s mental state was deteriorating and that K appeared delusional in the days before the October offending. Dr Naidu’s opinion is that K was so unwell he was acting on persecutory and grandiose delusions, lacked the ability for emotional or behavioural control, lacked the ability to consider consequences and the fuller ramifications of any of his actions, and would have been incapable at the time of understanding what was morally right or wrong. For these reasons, Dr Naidu concludes K was insane within the meaning of s 23(2) at the time of the October offending.

[42]   Dr Karayiannis considers it possible K has a defence of insanity in respect of the threatening behaviour offending on 8 August 2019, essentially for the same reasons given by Dr Naidu.

[43]   Dr Karayiannis is satisfied K would have the defence of insanity available to him in respect of the inciting murder offending, as his illness would have rendered him incapable of knowing his act was morally wrong in the required sense. At the time, K was experiencing difficulties in forming coherent and logical thoughts, had issues with basic problem solving, was likely to have been making poor decisions, and to have been impulsive, grandiose and irritable. Dr Karayiannis considers K was experiencing an episode of psychosis and mania at this time.

[44]   Dr Karayiannis, however, did not consider K would have the defence available to him on the unlawfully being in an enclosed yard and resisting arrest offending. For the following reasons, I prefer Dr Naidu’s evidence in respect of these two offences.

[45] Taking the second of these offences first, it appears to me, and this is noted in the Crown’s submissions also, that Dr Karayiannis has taken into account a statement K made to Dr Karayiannis that he knew the police were trying to arrest him and that it was wrong to resist them. Of course, K may have made such a statement but I am concerned with K’s state of mind at the time of the offending, and not with what K may realise several months later and when he has been taking his medication. As to K’s state of mind at the time of the offending, Dr Karayiannis does say that K was experiencing similar difficulties to those referred to in [43]. Ultimately the resisting arrest offending is so close in time to the inciting murder offending I am unable to distinguish between them.

[46]   As to the unlawfully being in an enclosed yard offending, I am unable to identify the evidence on which Dr Karayiannis has relied in reaching his conclusion. However, this offending was proximate in time to the offending on 23 October 2019, and at the time concern was being expressed that K was not taking his medication. These matters, and the delusional content of the exchange between K and the police officer that occurred in the yard, persuade me on the balance of probabilities K was insane at the time of this offending.

[47]   For these reasons, I determined K insane at the time of the events giving rise to the charges.

Disposition

[48]I shall hear submissions on disposition on 19 June 2020.

Peters J