R v M

[2014] NZHC 605

NOTE: PUBLICATION OF NAME OF THE COMPLAINANT PROHIBITED BY S 204 OF THE CRIMINAL PROCEDURE ACT 2011.

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

CRI-2013-025-001947 [2014] NZHC 605

THE QUEEN

v

SUCHARITTA MILTON

Hearing:                   26 March 2014

Appearances:           M-J Thomas for the Crown

T W Fournier for the Defendant

Judgment:                26 March 2014

ORAL JUDGMENT OF PANCKHURST J

Introduction

[1]      Mrs Milton, you are charged that on 2 September you attempted to murder your daughter, N Milton.  Belatedly, yesterday there was an application to amend the charge and that is a question which I have discussed with counsel, but I do not propose to deal with that application at the moment, although I will in a further judgment to be delivered in due course.

[2]      Mr Fournier seeks a finding of insanity pursuant to s 20(2) of the Criminal Procedure (Mentally Impaired Persons) Act 2003 (the Act).  The Crown accepts that a finding of insanity is appropriate in your case, Mrs Milton.  Today, I have heard some expert evidence from Dr Bathgate and Professor Brinded concerning the illness

from which you suffered at the time of this tragic event and also concerning the

R v MILTON [2014] NZHC 605 [26 March 2014]

disposition of your case.  As a result of what I have read and the evidence that has been given this morning, I am in a position to make a finding and also to deal with disposition.

The factual background

[3]      Firstly, it is necessary to detail the factual background.  There is no dispute as to what happened on 2 September last.   An agreed summary of facts has been provided.  N was born at Invercargill on 9 August 2013.  You and your husband had been married at that time for nine years.  I note that you were 32 years of age, that you were born in Thailand and that N was your first child.

[4]      In the early hours of Monday 2 September you and your husband were both up.  The baby was unsettled; there had been feeding and some other difficulties.  At about 5.00 am you suggested to your  husband that he should go outside for a walk. He left the room for a short time, but not the house.  Upon returning to the living room he was confronted with an awful scene.  N had been grievously injured with a knife and you were in the process of harming yourself using the knife.  He uplifted the baby, endeavoured to assist her and at the same time was successful in moving you into the dining area of the house.

[5]      From there Mr Milton made a 111 call.   While awaiting the arrival of the police and an ambulance, he momentarily went outside to open a gate.  Upon return he  found  that  you  had  armed  yourself  with  another  knife  and  were  again endeavouring to harm yourself.

[6]      N sustained a very serious wound as a result of which she was initially treated locally but then transferred to Starship Children’s Hospital.   You, too, had serious wounds to your wrists involving tendon and nerve injuries.  You underwent surgery in relation to those injuries, but were then admitted to the mental health unit at  Southland  Hospital.    Subsequently,  you  were  charged  with  the  offence  of attempted murder, although  your medical condition was such that you were not immediately interviewed.

The situation before and after these events

[7]      I consider it is necessary to place the immediate events that  I have just outlined in a broader context.  I see that broader context as relevant to the plea and the finding of insanity.  Your husband David was interviewed on the early afternoon of 2 September 2013.  He was entirely co-operative with the police and I am in no doubt gave an account of the surrounding events to the best of his ability.  A number of relevant facts and circumstances emerged.

[8]      Without question, your baby was cherished and well loved. The birth process was a protracted one but otherwise essentially normal, although you suffered a nasty tear injury which required a number of sutures.

[9]      The  next  three  weeks  seem  to  have  been  fairly  typical  for  a  family encountering the problems associated with bringing home a first child.  There was considerable joy at the birth of your daughter, but also the downside of sleep disruption and then feeding issues which intervened.   This resulted in a need to supplement breast milk with formula.  Nonetheless, you managed well through those first three weeks until the weekend immediately before 2 September.

[10]     At that point there was an abrupt change.   You complained of nightmares, abdominal pain which led to apparent loss of consciousness, and other physical symptoms. In addition, you spoke to your husband of doubts about your worth as a mother, whether indeed you were, as you put it, “a good mother”, and you even voiced the concern that N might be taken away from you.   You also mentioned in passing at least the issue of self-harm.

[11]     On the Saturday morning at about 2.00 am your husband took you to the emergency department at the hospital.  Intensive checks were undertaken, the need for you to have fluids was stressed, there was mention of depression and you were advised to go to your GP on the following Monday.   Sunday, at least during the daytime, was a somewhat better day.  But issues again developed that evening and at a similar hour in the morning, by then Monday 2 September, your husband again took you back to the hospital.   More fluids were administered and you were discharged to return home with your child. At some point contact was also made and

advice taken from your midwife.   In the early hours of that morning, approaching

5.00 am, your condition was one of even greater distress and the events unfolded as I

have previously outlined.

[12]     Immediately after those events, as I have also mentioned, you were admitted to  hospital,  eventually  to  the  mental  health  unit,  but  then  transferred  to  the psychiatric unit at Wakari Hospital.   This was pursuant to an inpatient order, to which you were no longer subject after 19 November, although you remained at Wakari until 20 January 2014 when you were discharged and became effectively a voluntary patient. You were, however, on bail including a condition that you were to co-operative with your mental health providers and take medication as prescribed by them.

The defence of insanity

[13]     This hearing is being conducted pursuant to s 20(2) of the Act.  That section provides:

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  …  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.

[14]     I find this subsection somewhat curious for the fact that there is no express requirement that the Court must be satisfied of the defendant’s involvement in the act or omission which comprises the basis of the charge.  I note that s 9 of the Act, in the context of an inquiry into fitness to stand trial, has an express provision that the Court must consider, and conclude, that a defendant was responsible for the relevant act or omission.  However, I consider that such a requirement is implicit and that I must be so satisfied because of the use of the words “at the time of the commission of the offence.”  Those words, in my view, can only mean it is a prerequisite that the

Judge considering the issue of insanity is satisfied that the accused person committed the acts which form the basis of the charge.

[15]     Here, there can be no doubt as to this.  Your husband’s account, and indeed your own when you were well enough to be interviewed, confirm as much.   The nature and the seriousness of the injuries suffered by your daughter are consistent with the mental element of the offence and I am satisfied, indeed beyond reasonable doubt, that you did commit what would otherwise, but for your mental health, have been the offence with which you are charged.

[16]     I turn then to the other three requirements that are contained in s 20(2). Mr Fournier has raised on your behalf the defence of insanity.  The Crown, through Ms Thomas, have agreed that the only reasonable verdict in light of the expert evidence is that you should be found not guilty on account of insanity.  Nonetheless, it remains for me, and this is the third requirement, to be satisfied that you were at the relevant time insane as defined in the Crimes Act.   I turn, therefore, to that question.

[17]     Section 23(2) of the Crimes Act defines insanity in this way:

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 … 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.

I note that subs 3 provides that evidence of insanity immediately before or after the relevant event may provide proof of mental incapacity at the relevant time.

[18]     Here, I have the comfort of evidence from two experienced and respected psychiatrists.  They are in agreement as to the diagnosis and as to the seriousness of the psychosis from which you suffered at the relevant time.  There is no contest, or material difference of opinion, between them concerning the extent and severity of your illness.  Nonetheless, it remains for me to be satisfied and to provide at least

brief reasons to explain why a finding of insanity is appropriate in the circumstances of your case and in the circumstances of such a serious crime.

[19]     The first issue is whether you were suffering, Mrs Milton, from a disease of the mind.  I am satisfied that you were.  There is a body of evidence provided by Drs Bathgate and Brinded to that effect.  They drew extensively on the reports and medical notes of others, in particular from the doctors and nurses who were responsible for your care immediately after the event.  You had no previous signs or indications of a psychiatric illness, but at the relevant time you were suffering from visual and auditory hallucinations and these continued at the time of your admission to hospital.  You were also suffering from what have been termed delusional beliefs. Both the hallucinations and these delusional beliefs continued until you were prescribed and took anti-depressive and anti-psychotic medication.  That medication became effective after a short period of time.

[20]     The diagnosis in relation to the disease in this case is one of post-partum psychosis.  This is a well-recognised and severe mental disorder.  It manifests itself after the delivery of a child. The onset of psychosis associated with the disorder may be rapid indeed, as was the case in this instance.

[21]     The hallucinations from which you suffered are an important ingredient in relation to the finding of insanity.  They were linked to your personal history.  You were brought up in a village in northern Thailand and cared for by your extended family.   Regrettably, you suffered some abuse at the hands of a member of that extended family, and this person featured large in relation to the hallucinations from which you suffered.  You thought the person was present, and you believed that he intended to harm both you and your newborn baby.   The notes confirm that you continued to voice such concerns in hospital, both when you were first admitted and until the anti-depressive and anti-psychotic medication took effect.

[22]     So this is not a situation confined to self-reported illness; there is some element of that, but your recollection of the crucial events was somewhat limited. The main evidence of psychosis is derived from the post-admission hospital reports

from others involved in your treatment.   For these reasons, I am entirely satisfied that you suffered from a serious and debilitating disease of the mind.

[23]     I turn then to the second issue relevant to insanity: the question of your mental capacity.  Was the impact of the illness such as to render you incapable of understanding the nature and quality of your actions, or alternatively incapable of knowing that your actions were morally wrong according to the commonly accepted standards of right and wrong?

[24]     Dr Bathgate, who was involved in your treatment during the months that you spent at Wakari Hospital, considers that you knew the nature and quality of your acts at the relevant time.  That is that you did have the capacity to know that you were causing serious harm to your daughter.  But on the other hand he considers that you did not appreciate that what you were doing to your daughter was morally wrong.

[25]     Dr Brinded, on the other hand, formed a slightly different conclusion.  In his report dated 20 February 2014 he expresses this opinion:

Such was [Mrs Milton’s] altered mental state that I doubt that she knew the nature and quality of her actions.  Notwithstanding that, her psychotic mental state would, in my view, have rendered her unable of knowing that the act was morally wrong, having regard to commonly accepted standards of right and wrong.   Consequently, I agree with the opinion of Dr David Bathgate and would support a defence of insanity with respect to the charge.

Hence, he considered that the incapacity was so severe that both limbs of incapacity as defined in the Crimes Act were engaged.

[26]     I, too, am inclined to the view that while you acted purposefully and in response to delusional hallucinations that N was about to be harmed, you did not in fact understand the nature and quality of what you were doing.   But nonetheless I prefer to base the finding on the second limb of the statutory test.  Both experts agree you did not understand the moral character of your actions and that you should be acquitted on the grounds of insanity on that account.

[27]     For these reasons, I am entirely satisfied that a finding of insanity and that you are not guilty of the charge for that reason is appropriate, and I make such a finding.

Disposition

[28]     I turn then to the question of disposition.  The public interest requires where an insanity finding of this kind is made that it should not result in an immediate discharge without more.  Rather, an inquiry is required pursuant to s 23 of the Act. The inquiry is directed to whether treatment should be ordered or whether a range of other options are appropriate.  In the first place, I must consider s 24, whether it is necessary that you be detained as a special patient either in hospital or in a secure facility.   Both of the psychiatrists consider that this is not necessary in your case, Mrs Milton.   They are confident that as a result of the medication which you are taking your illness is under control and that detention as a special patient is not required.

[29]     But that is not the end of the matter.  I am also required to consider s 25, an alternative provision which must be considered by a Judge where the special patient options in s 24 are not appropriate.   The section provides a hierarchy of options ranging from an order for treatment as a committed patient, down to an immediate release back into the community.  Drs Brinded and Bathgate have provided separate reports directed to this question.

[30]     What is the appropriate response in your case?   Dr Bathgate favours your immediate release into the community without any further order of the Court.  His disposition report explains why he has reached this conclusion, and for that reason I quote three opinions expressed by him in the report.  Firstly, he states:

Since discharge from hospital [Mrs Milton] has continued to be supported by the community forensic team in Invercargill.   She has had at least twice weekly face to face visits with her psychiatric district nurse and she has had monthly reviews by the consultant psychiatrist.  She has re-engaged in her usual craft [and business] activities and has continued to be supported by her husband.  She had continued to have supervised access to her seven months old daughter (now four hours four times per week), who remains in the paediatric ward in Southland Hospital.

A little later in the report under the heading of “opinion” he added this:

Mrs Milton has a number of positive prognostic signs including the fact that this was her first episode of illness.  It had a significant mood component, she does not have a history of substance abuse, she responded well to treatment, she has shown good insight, is compliant with treatment, and has ongoing supports.

And finally he added, and this is his essential conclusion:

There is no indication she needs to be treated under compulsion, and that view is supported by the current clinical team.  Although this has not been fully tested as she has been under [a] bail condition to take treatment she has good understanding and acceptance of the need for ongoing treatment.

I therefore respectfully recommend that the Court dispose of Mrs Milton’s case [pursuant  to]  section 25(1)(d)  of  the  Criminal Procedure  (Mentally Impaired Persons) Act 2003.

That is to say by way of an immediate discharge into the community without more.

[31]     Professor  Brinded,  by  contrast,  favours  the  making  of  an  order  under s 25(1)(a) of the Mental Health (Compulsory Assessment and Treatment) Act 1992; that is a community treatment order.   His reasons for this are explained in his disposition report dated 17 March 2014:

In my experience immediate release of a defendant who has been found to have been “insane” following being charged with a seriously violent offence is an extremely rare event.  I have carefully considered whether however it would be appropriate in Ms Milton’s case.  I have concluded that I cannot advise the Court that this [immediate release] is the most appropriate disposition and feel that the appropriate disposition would be for Ms Milton to be treated as a patient under the Mental Health (Compulsory Assessment and Treatment) Act on a Community Order pursuant to s 25(1)(a) of the CPMIP.  The reasons for coming to this conclusion are:

1. The severity of the attack on her daughter;

2. The rapidity with which her psychotic symptoms developed;

3. Her inability when psychotic to share with those around her, her disturbed thoughts;

4. The severity of her illness.

At such a relatively early stage in her recovery I think it prudent to retain some  degree  of  compulsion  with  respect  to  treatment  and  follow-up  to ensure that whatever risks exist can be managed and prompt intervention can occur in the event of any deterioration in Ms Milton’s condition.

[32]     This difference of opinion has been explored this morning in questioning of the doctors.   Before I turn to that evidence, however, I note some features of the compulsory treatment order which Professor Brinded favours in this case. Compulsory treatment orders take one of two forms.  There can be an inpatient order or a community treatment order, and it is the latter which Dr Brinded favours.

[33]     Jurisdiction to make an order is dependent upon the person being mentally disordered, whether that disorder is continuous or intermittent.1    In this case there can be no question that Mrs Milton suffers from a mental disorder, albeit that it is presently under control and therefore intermittent.

[34]     If  an  order  is  made,  s  29  contemplates  that  it  will  provide  for  ongoing treatment under the control of a responsible clinician.  The order is for a period of six months,2 unless the Court extends the order on the application of the responsible

clinician.3    During the currency of the six month order a release may occur at the

instance of the registered clinician,4  who also has the power to initiate inpatient treatment should there be a deterioration in the patient’s condition which necessitates that course of action.5

[35]     Mr Fournier, both in questioning the doctors and in submissions, argued that the precaution of a community treatment order was not required in the circumstances of this case.   He stressed Dr Bathgate’s evidence that Mrs Milton is an intelligent woman who has recognised and taken responsibility for her illness, that she has no traits which would suggest she is likely to lapse in relation to taking medication and that she was, prior to these tragic events, an active, engaged, and attentive mother. He also stressed that she had the unwavering support of her husband, who is now forewarned as to the signs of the onset of this depressive illness, a benefit which he did not enjoy in the build up to the events on 2 September.

[36]     Thirdly, Mr Fournier relied on the fact that an undertaking has been provided to the Court this morning, something which is envisaged in s 25(4) of the Act in

1 S 2 Mental Health (Compulsory Assessment and Treatment) Act 1992.

2 S 33.
3 S 34.
4 S 35.

5 S 29(3).

relation to a disposition following an insanity finding. That is a personal undertaking from you, Mrs Milton, in which you undertake to the Court to continue to undergo, and participate in, treatment and to take medication as prescribed.

[37]     Mr  Fournier  posed  the  question  what  difference  would  a  compulsory treatment order make?   I agree with him that in practical terms it will make little difference.  There is already a treatment plan in place and you are already subject to the oversight of a responsible clinician and indeed a psychiatric nurse.  The regime is one in which you are seen twice weekly by the nurse and monthly by the clinician. They monitor you for any signs of regress and also ensure that your medication is appropriate and being taken as prescribed.  Hence, Mr Fournier ultimately made the submission that there is no need for the making of a community treatment order, that its need was more theoretical than real.

Decision

[38]     I disagree, particularly in light of the evidence which both doctors gave as to the risk of relapse in relation to this form of psychosis.  I am clearly of the view that it is important to have the added safeguard of a legal framework which will be provided by virtue of a community treatment order.

[39]     I am also influenced by the doctors’ acceptance of the fact that there are acknowledged risk factors which apply in relation to anyone who has suffered from this psychosis on a previous occasion, the more so when there are events about to happen which will involve adjustment and, in all probability, stress.  The particular event in this case is the reunification with your daughter, which I infer is likely to be in the near future.  That is going to be a difficult time and, in my view, it is important that every safeguard is in place, including a community treatment order.  It provides a fallback mechanism to be utilised should there be an untoward turn of events.

[40]     Mr  and  Mrs  Milton,  you  should  not  in  any  way  view  this  decision  as deprecating the submissions that Mr Fournier has made as to your abilities, and resolve, to cope with matters into the future.  I do not see it as in any way critical of either of you, rather as an added safeguard which it is appropriate for me as a Judge to put in place, and I trust that you can accept what I have done in that spirit.

[41]     I reserve the terms of the community treatment order and will prescribe them in due course.  I direct that the Crown obtain and file a memorandum concerning the appropriate terms for the order, including who the responsible clinician should be and an indication of the treatment plan which will be followed, although I anticipate that that will be in keeping with the plan which is already in place.   I request, Ms Thomas, that this is done as soon as possible so that the terms of the order may be finalised.

Name suppression

[42]     The final issue is that of name suppression.  I confirm what was said earlier that the interim order in relation to Mrs Milton’s name has now lapsed.   I also expressly refer to the caveat that nonetheless exists.  Section 204(1) of the Criminal Procedure Act provides for automatic name suppression of a complainant under 18 years of age who has been the victim of, in this instance, violence, and I am of course talking of the baby.  Her name may not be published unless the Court makes a direction to that effect and I do not do so.  It therefore remains for the media to meet that  obligation,  albeit  that  there  is  no  order  for  suppression  in  relation  to  you, Mrs Milton.

Solicitors:

Preston Russell Law, Invercargill

T Fournier, Barrister, Christchurch