R v M HC Auckland CRI 2008-092-1873

[2008] NZHC 1380

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2008-092-1873

THE QUEEN

v

M

Hearing:         4 September 2008

Appearances: T Robertson for the Crown

K Maxwell for the accused

Judgment:      4 September 2008

(ORAL) JUDGMENT OF STEVENS J (s 20 application)

Solicitors/Counsel:

Crown Solicitor, PO Box 2213, Shortland Street, Auckland 1140

K Maxwell, Public Defence Service, PO Box 76715, Manukau City 2241

R V M HC AK CRI 2008-092-1873  4 September 2008

Introduction

[1]      This  case  was  set  down  for  hearing  pursuant  to  s  20  of  the  Criminal Procedure (Mentally Impaired Persons) Act 2003 (the Act) to determine whether the accused  M    (the  accused)  should  be  found  not  guilty  of  the criminal charges he faces on the ground of insanity.  If the Court records a finding of insanity, then it is necessary to determine the most suitable method of dealing with the accused under either s 24 or s 25 of the Act.

[2]      The accused has been charged with two counts of attempted murder and one of being a male assaults female, where the complainant was his grandmother.  These charges arose out of a very serious incident on 7 February 2008 near the accused’s home at Mangere Bridge.   The accused became upset and angry and is alleged to have perpetrated acts of severe violence against two of the victims who lived at a nearby property, giving rise to the charges of attempted murder.  The accused has a history of mental illness and the District Court ordered a report pursuant to s 38(2)(c) of the Act to address the issues of whether the accused was fit to plead and whether at the time of the offending he was insane within the meaning of s 23 of the Crimes Act 1961.

[3]      A total of four reports have been obtained from expert medical practitioners on the question of whether the accused should be found to be insane under s 23 of the Crimes Act.  All report writers suggest or conclude that the defence of insanity is available to Mr M   having regard to the criteria set out in s 23 of the Crimes Act.

[4]      It is common ground between parties that, if the Court makes a finding of insanity in respect of the accused, it will be appropriate also to determine the most suitable method of dealing with him after the finding.

Nature of the hearing

[5]      The purpose of holding a hearing under s 20 of the Act provides a convenient and appropriate means of resolving the issue of insanity in the case of a particular

accused.  A finding of not guilty on the ground of insanity will ensure that someone who has no criminal intent or capacity to form a criminal intent due to mental illness is not regarded or treated as a criminal.  For that reason, the disposition phase of the case is not described as a sentencing.  Rather, its purpose is to determine what should be done with a person who is impaired by mental illness at the time of the incident and is therefore regarded by the law as not responsible for their actions.  Hence, our Crimes Act contains a provision such as s 23 which deals with the question of insanity.

[6]      Before  this  hearing  started,  I  received  submissions  from  counsel  as  to whether or not this hearing should take place in open Court.   I directed it should take place in open Court so that the complainants could be present and hear all of the evidence, but also so that members of their family and members of their community could attend.   I must say I greatly appreciate the fact that all these persons were present for the entire hearing, both to support the complainant and to see how this case has been dealt with within the law that I must apply.

[7]      Under s 23 of the Crimes Act, everyone is presumed to be sane at the time of doing any act until the contrary is proved.  In summary, no person can be convicted of an offence by reason of any act done when labouring under a “disease of the mind” to such an extent as to render that person incapable of understanding the nature and quality of the act involved, or of knowing that the act was morally wrong having regard to commonly accepted standards of right and wrong.  Section 23 sets out the test which must be applied by the Court when determining whether it is right and proper to accept a plea of not guilty on the ground of insanity.

[8]      The Act established a new procedure, which replaced s 113 of the Criminal Justice Act 1985.  It is now open for a Judge at a hearing to determine whether a finding of not guilty on the ground of insanity should be made.  The requirements of s 20(2) of the Act are:

20   Finding of insanity

...

(2)   Before or at a hearing or 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.

[9]      The nature of a hearing of this type was helpfully discussed by Heath J in two decisions,  R  v  Rangi  (No  2)  HC  ROT  CRI 2005-019-3496  9  March  2006  and R v NHM HC ROT CRI 2006-063-1548 14 September 2007.   In the latter case, Heath J described the outcome of a finding of insanity at [13] and [14]:

There is no jurisdiction for a Court on a hearing of this type, to go behind the index  offence  to  which  the  plea  is  entered.    Indeed,  it  should  not  be necessary to do so.   That is because, if a plea of not guilty by reason of insanity were accepted, the verdict is not guilty.

In my view, it is important, especially for disposition purposes, to maintain a distinction between the conduct that gives rise to the charge and the offence on which the accused is found not guilty.  It is inherent in a verdict of not guilty on the grounds of insanity that the accused had no capacity to form a criminal intent.

Available medical reports

[10]     The Court has before it the following medical reports concerning the mental state of the accused at the time of the alleged offending:

a)       Report   of   Dr   Jeremy   Skipworth   of   the   Mason   Clinic   dated

22 February 2008;

b)       Report  of  Dr  Ian  Goodwin  of  the  Regional  Forensic  Psychiatry

Services dated 7 March 2008;

c)        Report of Dr Krishna Pillai, Consultant Forensic Psychiatrist dated

3 April 2008; and

d)       Report of Dr Russell Wyness of the Regional Forensic Psychiatry

Services dated 1 May 2008.

Those  are  the  four  reports  to  which  Dr  Goodwin  referred  to  when  giving  his evidence today.

[11]     Having received and reviewed each of the above reports (which were each commissioned by the Court), the Crown did not see any need to seek a Crown- ordered report.  Ms Robertson submitted that there was no need to do so because of the clear opinions from all of the doctors concerned.

Requirements of s 20(2) of the Act

[12]     There is no doubt that the requirements of s 20(2)(a) of the Act have been met.  Through his counsel, Ms Maxwell, Mr M   has indicated that he intends to raise the defence of insanity, and indeed has done so.  But whether the accused should have any criminal responsibility for the acts concerned turns on the issue of whether or not he was insane at the time, namely, on 7 February 2008.

[13]     The requirement of s 20(2)(b) has also been met.  Crown counsel has quite properly accepted that the prosecution agrees that the only reasonable verdict is not guilty on the ground of insanity.  This is because Dr Goodwin, and the other experts who have provided reports on the accused, all acknowledge that this is the proper outcome.

[14]     The remaining requirement under s 20(2)(c) is that the Judge is satisfied on the basis of the expert evidence that the accused was insane within the meaning of s 23 of the Crimes Act at the time of the commission of the offences.

[15]     I have carefully considered the report of Dr Goodwin dated 7 March 2008. Dr Goodwin gave evidence at the hearing and confirmed the content of his detailed report.  The report concluded on the question of insanity as follows:

Mr  M    suffers  from  Paranoid  Schizophrenia.     The  court  would normally accept Paranoid Schizophrenia as being a ‘disease of the mind’.  At the time of the alleged offending Mr M   was specifically suffering from persecutory delusions and auditory hallucinations.   As Dr Skipworth stated in his report there is also a likely contribution from cannabis to his [sic] Mr M  ’s relapse though I am of the opinion that this cannot fully explain Mr M  ’s mental state at the time of the  offending.    I am therefore of the opinion that the so-called ‘first limb’ of the insanity test as per Section 23 of the Crimes Act 1961 i.e. ‘disease of the mind’ is met in Mr M  ’s case.

Turning to the ‘second limb’ of the Act, it is clear that Mr M   was aware  of  what  he  was  doing.     He  was  in  my  opinion  capable  of understanding  the  nature  and  quality  of  his  actions.     However  his persecutory delusions and confirmatory auditory hallucinations influenced Mr M  ’s thoughts and actions to the point where he was not in my opinion   capable   of   appreciating   that   his   acts   were   morally   wrong. Mr M   appears to have acted on the basis that he felt his family and himself were threatened and he behaved in a way that he felt defended his family from that apparent threat.

Mr M   did not describe any specific delusions in regard to the victims and it appears that unfortunately they may simply have been in the wrong place at the wrong time.

Overall, on balance, therefore Mr M   does appear to fulfil the criteria for the so-called ‘second limb’ of the insanity test also (moral wrongfulness).

I am therefore of the opinion that Mr M   does have a defence pursuant to Section 23 of the Crimes Act available to him.  I would however bring to the  court’s  attention  Mr  M  ’s  voluntary  cessation  of  previously effective therapy in the community while apparent [sic] competent.  I note that he was also actively deceiving his treating team at the time and was not disclosing of apparent psychotic phenomena over a number of months prior to this incident.

[16]     The views expressed in this report are entirely consistent with the opinions expressed in the reports by Dr Skipworth, Dr Pillai and Dr Wyness.

[17]     Having considered these reports, and having heard the evidence viva voce from  Dr Goodwin,  I  am  satisfied  on  the  basis  of  such  expert  evidence  that Mr M   was insane within the meaning of s 23 of the Crimes Act when the acts

relevant to the alleged offences occurred on 7 February 2008.  Being so satisfied, I record in this judgment a finding under s 20 of the Act that Mr M   is found not guilty of the three offences charged by reason of insanity.

Next steps

[18]     When a finding of insanity is so recorded, s 23 of the Act requires that the Court must order that inquiries be made to determine the most suitable method of dealing with the person under s 24 or s 25 of the Act.

[19]     In anticipation of the hearing, Ms Robertson commissioned a supplementary report from Dr Goodwin regarding an appropriate means of disposal of this case. Ms Robertson, in her written submissions, also confirmed that the Crown supported the similar recommendation made by Dr Wyness that the appropriate disposition for Mr M   is that he be detained as a special patient under the Mental Health (Compulsory Assessment and Treatment) Act 1992.  That conclusion was also fully articulated in the supplementary report from Dr Goodwin dated 1 September 2008, which I have read.

[20]     At the hearing, Dr Goodwin spoke to that report.   He also confirmed the contents of the report in terms of disposition as follows:

The Court essentially has two possible dispositions available to it should

Mr M   be found Not Guilty by reason of Insanity.

Section 24(2)(a) of the Criminal Procedure (Mentally Impaired Persons) Act

2003  orders  that  a  person  be  detained  in  hospital  as  a  special  patient, whereas Section 25(1)(a) of the same Act orders that a person be subject to a

compulsory treatment order under the Mental Health Act 1992.

I note that at the time of the offending, Mr M   was already subject to an order pursuant to Section 29 of the Mental health Act, and has been under Compulsory Treatment Orders on previous occasions.   The degree of compulsion inherent in such an order does not seem to have been sufficient to prevent relapse and subsequent risk to the community.

I am therefore of the opinion that an order pursuant to Section 24(2)(a) of the Criminal Procedure (Mentally Impaired Persons) Act 2003 is appropriate in these circumstances.  A bed is available to Mr M   at the Mason Clinic should the Court make such an order.

[21]     For Mr M  , Ms Maxwell acknowledged that she had received a copy of the  supplementary report  from  Dr  Goodwin.    She  also  confirmed  that  she  had discussed that recommendation with Mr M  .  Further, Ms Maxwell confirmed that the report had been forwarded to Dr Pillai whom she had instructed to provide an opinion for defence counsel.  In short, Dr Pillai agreed with the recommendation as to the disposal of this case pursuant to s 24(2)(a) of the Act.  Therefore she agreed that there is no issue to be taken with the recommendation made by Dr Goodwin by the defence.

[22]     Ms Maxwell offered to have a further report prepared by Dr Pillai if the Court required it.  However, that will not be necessary.  His findings were entirely consistent with those of Dr Goodwin.   Incidentally, I note that Dr Wyness also shared the same view as to disposition, as set out at page 7 of his report dated 1 May

2008.

Disposition

[23]     Therefore, I am satisfied that I have sufficient information on the condition of Mr M  , who has been found not guilty on the ground of insanity, to make an order under s 24(2) of the Act.   I accept the recommendation of Dr Goodwin and hereby order that Mr M   is to be detained in a hospital as a special patient under the Mental Health (Compulsory Assessment and Treatment) Act 1992.  This outcome is entirely appropriate in Mr M  ’s case for the reasons which were amplified upon when Dr Goodwin gave evidence.

[24]     For completeness, I note that the alternative of an order under s 25 of the Act would not have been in any way suitable to the circumstances of this case.

[25]     As I come to the end of this judgment I would like to acknowledge the assistance which I have received from both counsel and from Dr Goodwin in particular.  I also wish to acknowledge what the complainants have been through.  I have  read  their  statements  carefully  and  appreciate  that  this  must  have  been  a

dreadful, terrifying incident.  Hopefully, as a result of being present at the hearing today they will now have some further insight into what might have been going on in Mr M  ’s mind at the time.

[26]     I also acknowledge the presence of Mr M  ’s family.  It cannot be easy for them having a family member who is afflicted by the type of illness that we have heard about today.  Their presence is appreciated and hopefully they too will now have a little more insight as to just how difficult things are for Mr M   and how difficult it is for the medical authorities who have to facilitate the treatments that they have been giving him.

[27]     I confirm the orders made in [17] above on the issue of insanity and in [23]

above regarding disposition.

Stevens J