R v S

[2021] NZHC 2152

ORDER PROHIBITING PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS OR IDENTIFYING PARTICULARS OF VICTIM OR CONNECTED PERSONS PURSUANT TO S 202 CRIMINAL PROCEDURE ACT 2011.

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CRI-2021-085-921

[2021] NZHC 2152

THE QUEEN

v

S

Hearing:

13 December 2021

Appearances:

S C Carter for the Crown

P H Mitchell and D W E Dowsett for the Defendant

Judgment:

13 December 2021

ORAL JUDGMENT OF COOKE J

[1]                 The defendant has appeared this morning and entered a plea of not guilty on the grounds of insanity to the charge that on 24 April 2021 he murdered his mother.

[2]                 At previous hearings of these proceedings the defendant was assessed as unfit to plead, but the psychiatric evidence now before the Court from Dr Hansby and    Dr Barry-Walsh advises that he would be fit to stand trial provided that certain steps were taken. For the purpose of s 8A of the Criminal Procedure (Mentally Impaired Persons) Act 2003 I accept he is now fit to stand trial. In taking his plea I have also spoken to him and satisfied myself that he understands the plea that he has entered and its implications.

R v S [2021] NZHC 2152 [13 December 2021]

[3]                 The Court now needs to address three matters. First I must take the assessments that are involved in accepting the plea and finding the defendant not guilty on the grounds of insanity. Secondly, the Court needs to make decisions on how the matter now needs to be addressed, including whether the defendant should now be detained in a hospital as a special patient under the Mental Health (Compulsory Assessment and Treatment) Act 1992. Finally the Court needs to determine whether there should be permanent name suppression granted in the circumstances of this case. There are comprehensive interim suppression orders in effect for the time being.

Accepting the plea of not guilty on the grounds of insanity

[4]                 I first address whether I should accept the plea that the defendant is not guilty on the grounds of insanity.

[5]                 I must first find that it has been proved by the Crown to the usual standard that the defendant committed the acts that have led to the murder charge. The defendant must then satisfy me on the balance of probabilities that he had a disease of the mind to such an extent that he was incapable of knowing that what he was doing was wrong.

[6]                 I have been provided with detailed reports of three psychiatrists, Dr Hansby, Dr Barry-Walsh and Professor Mellsop. Dr Hansby has given evidence before me this morning. All three have discussed the defendant in detail, and all three have reached the conclusion that the defendant was insane within the meaning of s 23 of the Crimes Act 1961 when he killed his mother.

[7]                 Formal written statements have been admitted under s 9 of the Evidence Act 2006 in addition to the expert evidence. The Crown has agreed that a verdict of not guilty on the ground of insanity is the only reasonable verdict.

[8]                 The defendant has had a long-standing diagnosis of schizophrenia. He lived with his mother, the victim, who was 73 years of age. The defendant is 42.

[9]                 As part of his mental illness the defendant has suffered from persecutory delusions, including a belief that people were entering the flat where he and his mother lived during the night and sexually assaulting him while he was asleep. He has also

been under the delusion that his mother had been taken over by another being and that she was no longer his mother — what Dr Hansby explains as Capgras syndrome. There have been other significant delusional beliefs and fears.

[10]             At the time leading up to his mother’s death the defendant was in the community, but under the care of the Community Mental Health team and was being treated with antipsychotic medication.

[11]             In mid-2020 the defendant was charged with assault but the charges were withdrawn following advice that the defendant had the defence of insanity. He was then seen by mental health professionals during the latter half of 2020. A decision was made to change his medication. In early April 2021 follow ups indicated that he was taking his new medication. But the position changed on 13 April and he started not to turn up to appointments to receive the medication and he had, in fact, stopped taking it.

[12]             On 24 April he then killed his mother at the flat. He stabbed her multiple times in her back and the front. The evidence establishes that when he did so he believed that she had been taken over by some other nefarious being who wanted to do harm to him. After doing so he then left the flat with an apparent desire to commit suicide. He was later found by members of the public on the Kelburn viaduct. He was approached by two members of the public who had stopped because they were concerned he was attempting suicide. He told them that people were going to hurt him and they had been saying that to him all night. He later told the police doctor that he was hearing voices in his head.

[13]             Subsequent to the offending he has been seen by Drs Hansby and Barry-Walsh. What he has revealed confirms that he was under a psychotic delusion at the time he killed his mother. As Dr Barry-Walsh reports, somewhat poignantly he at one stage asked Dr Barry-Walsh whether he had in fact killed his mother or somebody else as he did not know what had happened to his mother when she had been replaced.

[14]             I am satisfied that it has been proved that the defendant killed his mother by stabbing her. The views of the three psychiatrists are then uniform, and clear. I accept

that when the defendant killed his mother he believed she had been taken over by another being who was trying to harm him. I find that he was suffering from the disease of the mind best described as schizophrenia, and that when he did these things he was incapable of understanding that what he was doing was morally wrong.

[15]For these reasons I accept that the defendant is not guilty by reason of insanity.

Appropriate disposition

[16]             Having found that the defendant is not guilty by reason of insanity the Court must next decide how the defendant should now be dealt with.

[17]             Under s 24 of the Criminal Procedure (Mentally Impaired Persons) Act I must decide whether the defendant should be detained in a hospital as a special patient, or in a secure facility as a special care recipient. In doing so I follow the approach described by the Court of Appeal in M (CA 819/11) v R.1

[18]             I accept that it is necessary to detain the defendant in a hospital as a special patient under the Mental Health (Compulsory Assessment and Treatment) Act. I say this because:

(a)Firstly, Dr Hansby has given evidence this morning and has said in his report that this is necessary given the defendant’s circumstances.

(b)Secondly, that is not only the view of Dr Hansby,  but the views of   Dr Barry-Walsh and Professor Mellsop suggest that the defendant is a significant risk to the public, so that such detention is unavoidable given his mental health and how it manifests.

(c)Thirdly, prior to murdering his mother the defendant had engaged in an alleged assault of other members of the public in mid-2020 and had faced charges which were only withdrawn because he had the potential defence of insanity.

1      M (CA 819/11) v R [2012] NZCA 142, (2012) 28 FRNZ 773.

(d)Fourthly, as is referred to by the psychiatrists the defendant had developed a resistance to his medication, and after the alleged offending in 2020 attempts had been made to move him onto other medication. These were initially apparently successful, but then the defendant discontinued the new medication and the extreme forms of delusion then arose leading to him killing his mother.

(e)Finally, when suffering from the worst effects of his mental illness the defendant suffers from severe delusions which make him highly fearful or even terrified of others leading him to engage in the kind of conduct that led to the offending here.

[19]             I am satisfied that without effective treatment the defendant poses a very significant risk to the community, that his mental health is hard to maintain in the absence of the controlled environment of a hospital, and that he is very dangerous to the public if his mental health is not in very close check. For these reasons I determine that the defendant should be detained in a hospital as a special patient.

Name suppression

[20]             The final issue to address is whether there should be permanent name suppression.

[21]             The application is made on the basis that publication would be likely to cause extreme hardship to the defendant under s 200(2)(a) of the Criminal Procedure Act 2011, and also that it would cause undue hardship to the defendant’s sister, and the wider family under ss 200(2)(c) and 202(2)(a).

[22]             I have received a letter from the defendant’s sister dated 10 December which explains how these events have affected her and the family. I want to thank her for the insights she has provided in this and her earlier letter of 23 November, and to acknowledge the impact on her and her brother from these events. The defendant’s sister outlines the position of the family in New Zealand and Australia, and the likely impact upon them if suppression is not continued. I have also received an email from

victim support outlining the views of the deceased’s brother, who is frail and in a rest home.

[23]            The approach to suppression was outlined by the Court of Appeal in Robertson v Police2 and its application in cases of verdicts of insanity was addressed in Pound v

R.3 The grounds established by the section must first be made out, and then a discretion is applied on whether to make such an order. The statutory grounds set high standards. The starting point is open justice. The extreme hardship threshold should not be accepted as being crossed simply by virtue of a person being acquitted by reason of insanity.

[24]             I do not think that suppression could be justified because of the impact on the defendant. The defendant will now be detained as a special patient with all the wraparound services that will come with that. I accept that he was suicidal in connection with these events, and he will no doubt be suffering from significant distress now that he appreciates the implications of killing his mother. But he will not be within the community and will be supported in hospital. His circumstances do not satisfy the extreme hardship standard set by the section.

[25]             But I accept that publication would cause undue hardship to the defendant’s sister, his nephew, the deceased’s brother and the wider family in New Zealand and Australia. They have gone through an extremely traumatic series of events. Those events are bad enough as they are without the further invasion of their privacy involved in media coverage disclosing their identity. The nature and circumstances of this offending suggest that the publicity may have a sensationalist element. That may not arise from mainstream reporting, but from social media publicity that may arise from this case. Online publicity can remain searchable for years to come. I am particularly concerned about the circumstances of the defendant’s nephew, who was close to his grandmother and uncle, but because of his age and particular personal circumstances only knows that his grandmother has died and his uncle is in hospital. Understandably the revelation of these tragic events should be undertaken very carefully for him when he is a little older. It would be most unfortunate, and would cause undue hardship for

2      Robertson v Police [2015] NZCA 7.

3      Pound v R [2019] NZCA 555 (2019) 32 FRNZ 452 (leave to appeal declined at [2020] NZSC 37).

him to read about this online. There are also other young family members who would be impacted.

[26]             This is a family tragedy. No one else is directly involved. One member of the family has killed another when they have been mentally ill. The other members of the family are victims in accordance with s 200 of the Criminal Procedure Act, and I am satisfied that it would cause undue hardship for them to be faced with publicity of the defendant’s identity. That adverse impact could last for a long time given the ability to search online. In terms of the second stage of the inquiry whilst there is a clear presumption in favour of open justice there is little public benefit in the identity of the defendant, the victim or the wider family being known. I also take into account at the second stage of the inquiry that it may not facilitate any potential rehabilitation of the defendant into the community for there to be such publicity about him. He will now be detained in a hospital as a special patient, and the public interest involves focusing on him being at released only in circumstances where it is safe to do so. It would not assist his rehabilitation for there to be publicity, particularly sensationalist publicity that may remain available online, even though the extreme hardship standard is not reached.

[27]             In short there are no countervailing public interest consideration in publication that outweigh the undue hardship for the family as victims arising from publication of the identity of the defendant.

[28]             For these reasons there will be orders forbidding publication of the name, address or occupation of the defendant, or any particulars leading to his identification. This will include a requirement not to publish the name of the victim of the offending. The general circumstances of the offending as described in this judgment may, of course, be published provided there is no such identification. The block of flats in which the defendant and the victim lived may be identified provided that the exact address of the flat is not.

[29]             Before concluding can I just say Mr [S] that I am very sorry that this has happened. It is apparent from what I have read that you loved your mother and that you relied on her, and that she loved and cared for you. I also want to acknowledge

the defendant’s sister who is watching remotely. This case is a terrible tragedy for the whole family.

[30]By way of formal orders I confirm:

(a)That the defendant is not guilty on the grounds of insanity.

(b)That he be detained in a hospital as a special patient under the Mental Health (Compulsory Assessment and Treatment) Act.

(c)That there will be final suppression orders under s 200 of the Criminal Procedure Act as particularised above.

Cooke J

Solicitors:
Luke Cunningham & Clere for the Crown