R v Shirkey
[2021] NZHC 1741
•12 July 2021
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CRI-2020-035-650
[2021] NZHC 1741
THE QUEEN v
TREVOR RAYMOND SHIRKEY
Hearing: 9 July 2021 Counsel:
G J Burston and N Azam for Crown
K F Preston and G M Fairbrother for Mr Shirkey
Judgment:
12 July 2021
JUDGMENT OF ELLIS J
[1] Mr Shirkey was charged with murdering Ms Jennifer Henson on 19 June 2020. His trial was scheduled to begin on 12 July 2021.
[2] After receiving and considering four health assessors’ reports ordered under the Criminal Procedure (Mentally Impaired Persons) Act 2003 (the CPMIP Act), Mr Shirkey (through counsel) indicated that he intended to raise a defence of insanity. Following a caucus of the four experts, the Crown also agreed that the only reasonable verdict would be not guilty on account of insanity.
[3] In accordance with s 20 of the CPMIP Act, there was then a hearing before me to determine whether, on the basis of expert evidence, I could be satisfied that Mr Shirkey was insane within the meaning of s 23 of the Crimes Act 1961 at the relevant time. As part of that exercise I was also required to determine whether:
R v SHIRKEY [2021] NZHC 1741 [12 July 2021]
(a)the Crown had proved the actus reus of the charge beyond reasonable doubt; and
(b)the mens rea for murder—absent insanity—could be inferred from the established facts.
[4] The question of disposition (in the event of a finding of insanity) was deferred for another day.
[5] At the conclusion of the hearing, I made a formal finding that Mr Shirkey was suffering from a disease of the mind at the time of Ms Henson’s death, such that he was incapable of knowing his actions were morally wrong. I found him not guilty of murder on account of insanity.1
[6]These are my reasons for that finding.
Actus reus and mens rea
[7] The Police summary of facts was read and produced in evidence by Detective Rix. Their contents are not disputed. At around midday on 19 June 2020, Mr Shirkey drove his car at over twice the speed limit and on the wrong side of the road. He crashed head-on into Ms Henson’s stationary car, as she waited in the right- hand turning bay at an intersection on the main street of Carterton.
[8] The impact of the collision caused Ms Henson’s car to fly backwards through the air, landing some 50 or 60 metres from where it had been when it was hit. The force was such that the black lettering from Mr Shirkey’s front number plate was imprinted on the bumper of Ms Henson’s vehicle.
[9] Ms Henson died from her injuries at the scene. Mr Shirkey escaped relatively unscathed.
1 Due to the intermittent nature of his mental disorder, he had previously been found fit to plead, and he remained so on 9 July.
[10] The serious crash investigation that followed concluded that Mr Shirkey had been accelerating in the final two and a half seconds before the collision. He had made no attempt to brake or swerve. Visibility was good. Some bystanders described Mr Shirkey’s manner of driving as “deliberate”.
[11] Witnesses reported that, immediately after the crash, Mr Shirkey was behaving bizarrely. He is reported as saying things such as: “hide me, hide me, my bro is around the corner”, “my son, my son”, “ye fucking ha”, “I’m alive, I’m alive”, yelling randomly, speaking in Māori as though he was doing a karakia but without making any sense, chanting the haka “ka mate”, and asking for his “cuz”. Bystanders also said that he was acting in a very strange, “weird and loony” manner, for example by walking and jumping around in a confused, agitated and almost aggressive manner. During the trip to the police station, Mr Shirkey yelled at the driver to “hurry up bro”, to “floor it and take him”, and that members of his family were going to come and blow up the police station.
[12] It transpired a member of Mr Shirkey’s family had called 111 on both 18 and 19 June, reporting that she was scared for him and that he had “switched” and was not himself. Following the offending, members of his family expressed further concerns about his mental health in the weeks leading up to 19 June 2020.
Conclusion
[13] As noted earlier, there is no doubt that Mr Shirkey killed Ms Henson. The facts also satisfy me beyond reasonable doubt that, assuming he was sane at the time, by driving as he did into Ms Henson’s car, he meant to cause Ms Henson (or whoever happened to be in the car) bodily injury that was known to him to be likely to cause death and was reckless as to whether death ensued.
Insanity
[14] Insanity falls to be determined by reference to s 23(2) of the Crimes Act 1961. That requires, first, a finding as to whether Mr Shirkey was “labouring under… a disease of the mind” at the relevant time. And if he was, then it is necessary to consider whether it rendered him incapable either:
(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.
Disease of the mind?
[15] Reports were obtained from four health assessors, all of whom are psychiatrists: Dr Barry-Walsh, Dr Duggal, Dr Hansby and Professor Mellsop. All were agreed that—based on Mr Shirkey’s mental health history, and his behaviour at the time of the collision—Mr Shirkey was psychotic at the relevant time. The principal difference between them was whether that psychosis was caused by some underlying mental disorder or whether it was the result of drugs he had consumed in the hours and days before the collision. If the latter, then Mr Shirkey may not have been, in terms of s 23, suffering from a disease of the mind.
[16] Due to the differences between the psychiatrists, all four took part in an expert caucus, at the direction of the Court. Each had read the report(s) of the others beforehand. The outcome of that caucus took the form of a joint report. In relation to the “disease of the mind” issue, the report recorded:
4.On the question of Mr Shirkey’s underlying mental health diagnosis, we all agreed bipolar affective disorder and substance induced manic psychosis were plausible diagnostic possibilities. However, we did not uniformly agree which of these diagnoses was likely, on the balance of probabilities.
5.Prof Mellsop, Dr Barry-Walsh, and Dr Hansby were of the view, on the balance of probabilities, Mr Shirkey experienced bipolar affective disorder and he was labouring under this at the time of the alleged offending.
6.The reasons for Prof Mellsop, Dr Barry-Walsh, and Dr Hansby's diagnostic opinion can be summarised in four points:
A.Mr Shirkey’s presentation meets the criteria for bipolar affective disorder, as outlined in the Tenth Revision of the International Statistical Classification of Diseases and Related Health Problems.
B.Mr Shirkey’s clinical fluctuations, and symptoms and signs of disturbances in 2015, 2018, and 2020 described by treating clinicians, family, and other informants are all consistent with bipolar affective disorder. Furthermore, his age of onset is not inconsistent with bipolar affective disorder.
C.There are various versions of the available information about Mr Shirkey’s illicit drug use, including some which appear speculative.
D.Some of Mr Shirkey’s deteriorated and apparently psychotic behaviours have persisted when illicit drugs were unlikely be in his system.
7.Dr Duggal was of the view, on the balance of probabilities, Mr Shirkey experienced substance induced manic psychosis and he was labouring under this at the time of the alleged offending. Dr Duggal's reasons for this included that:
A.Mr Shirkey’s first hospitalisation with manic psychosis occurred in 2015 when he was 42 years of age. According to the DSM-IV-TR, the median age for first onset of a manic episode is 20 years of age and first episodes above 40 years of age should prompt consideration of a medical or drug- related cause for the episode.
B.Mr Shirkey met criteria for an antisocial personality disorder (ASPD). Deceit and manipulation are central features of ASPD. Further, Mr Shirkey provided different and internally inconsistent accounts of his drug use to Drs Hansby, Barry- Walsh and Duggal. On this basis, Dr Duggal attached comparatively more weight to the accounts of Mr Shirkey’s manic psychotic episodes and their relationship to substance abuse provided by clinical and nonclinical observers and from the natural course of his condition than to the accounts given by Mr Shirkey.
C.All three of Mr Shirkey’s manic psychotic episodes (2015, 2018, 2020) had features in common that suggested a drug- induced picture:
i.He tested positive for cannabis at each hospitalisation. (Note that synthetic cannabinoids are not generally detected in hospital assays and that methamphetamines are undetectable after 72 hours).
ii.Each episode had a relatively rapid onset and offset, with symptoms resolving in less than a month. (Note that DSM-IVTR indicates that a substance-induced manic episode can last up to a month).
iii.Mr Shirkey admitted to over-using tramadol prior to his 2018 and 2020 hospitalisations.
iv.The view of Mr Shirkey’s prison psychiatrist, Dr Caroline Holmes, when Dr Duggal consulted with her in 2021, was that he had experienced a substance- induced psychosis. Such a diagnosis was also consistent with Mr Shirkey remaining symptom-free despite discontinuing medications a year ago, and
consistent with being discharged to the care of the prison health service.
8.In terms of the Section 23(2) Crimes Act 1961 concept of disease of the mind, we all agreed Court precedent indicated a diagnosis of bipolar affective disorder would be considered a disease of the mind.
[17] As far as this last point is concerned, I note that this Court has previously found on more than one occasion that a manic episode of bipolar affective disorder with psychotic features constitutes a disease of the mind for the purposes of s 23(2).2 Given those cases, and the unanimous expert view expressed in this case, I do not need to consider that issue further. The only question needing to be addressed relates to Dr Duggal’s view that Mr Shirkey’s psychosis was drug induced.
[18] Three of the psychiatrists gave oral evidence before me. Although Dr Hansby was unavailable due to personal reasons, his report was able to be introduced through Dr Barry-Walsh.
[19] As a result of questions asked and a certain amount of further informal caucusing (between Professor Mellsop and Dr Duggal), I am satisfied on the balance of probabilities that Mr Shirkey was suffering from bipolar affective disorder at the time he killed Ms Henson. There are three matters—over and above the matters referred to in the expert reports and the joint report—that lead me to prefer the view of Professor Mellsop, Dr Barry-Walsh and Dr Hansby over the view of Dr Duggal.
[20] The first is that Dr Duggal’s view is necessarily reliant on evidence of relevant drug-taking in the days leading up to the collision. It is accepted and established that Mr Shirkey did consume cannabis in that time and on previous occasions involving similar episodes (his urine tested positive for cannabis on each), but it was not established that his consumption was anything out of the ordinary for him, as a regular and long-time user. Moreover, Dr Duggal agreed that cannabis “simpliciter” would not suffice to cause an episode of psychosis of the kind that occurred here.
2 See R v Warren HC Auckland CRI-2008-092-7733, 29 April 2009 and R v Allen HC Nelson CRI- 2011-042-60, 14 September 2011.
[21] Rather, Dr Duggal’s view was based on the possibility that Mr Shirkey had consumed other drugs—either “skunk” (a much more potent form of cannabis), synthetic cannabis or, possibly, tramadol or methamphetamine. But while it seems clear that one of Mr Shirkey’s previous episodes may have had some link to tramadol, there is simply no evidence of him using it in 2019. There is no evidence of Mr Shirkey ever having used methamphetamine. And in terms of skunk and synthetic cannabis, the only evidence of those is Mr Shirkey’s own speculation that his dealer might have given him some (unbeknownst to Mr Shirkey). That speculation appears to have had no basis in objective fact. Moreover, I would venture that Mr Shirkey is hardly a reliable narrator when it comes to such matters, particularly around the period in question, when his thought processes were highly disordered.
[22] The reality is (and with no disrespect to Dr Duggal intended) that Dr Duggal’s view was predicated on a kind of reversal of the evidential onus—that proof of the absence of these drugs was required. That is not the case. So the link that is critical to Dr Duggal’s reasoning is missing. Without evidence of drug use other than cannabis, his diagnosis falls away.
[23] A second and perhaps more minor point relates to Dr Duggal’s reference to Mr Shirkey suffering from visual hallucinations, which he said made a diagnosis of drug induced manic psychosis much more likely. Professor Mellsop agreed with that. But on review of the evidence, it is far from clear whether Mr Shirkey did suffer from such hallucinations. While it does seem clear that he was suffering from auditory hallucinations (have conversations with people who were not present), clear evidence as to them having a visual aspect is lacking.
[24] And lastly, I do not regard the point about the relative rarity of late onset bipolar affective disorder as particularly compelling. I necessarily accept what is stated in the DSM-IV-TR, as to the median age. But that age does not preclude a later onset, and Professor Mellsop confirmed he had seen such cases. And while Dr Duggal was right to regard late onset as a possible indicator of some external precipitating factor, in the present case the evidence does not support a drug-related cause, for the reasons already given.
[25] On the balance of probabilities, I am therefore satisfied that Mr Shirkey was suffering from bipolar affective disorder—a disease of the mind in terms of s 23—at the time he killed Ms Henson.
The requirements under s 23(2)(a) and (b)
[26] As to this second issue, all four psychiatrists were agreed. Their joint report recorded:
9.In terms of Section 23(2)(a) of the Crimes Act 1961, we were all of the view Mr Shirkey was not rendered incapable of understanding the nature and quality of his actions at the time of the alleged offending.
10.In terms of Section 23(2)(b) of the Crimes Act 1961, we were all of the view Mr Shirkey was rendered incapable of knowing his actions were morally wrong, having regard to the commonly accepted standards of right and wrong, at the time of the alleged offending.
[27] There is no basis in the evidence on which I could disagree with this unanimous view. I find that Mr Shirkey was rendered incapable of knowing his actions were morally wrong, having regard to the commonly accepted standards of right and wrong, at the time of the alleged offending.
Conclusion: insanity
[28] I was therefore satisfied, on the evidence, that Mr Shirkey was legally insane at the time he killed Ms Henson. I found him not guilty on account of insanity, accordingly.
Rebecca Ellis J
Solicitors:
Crown Solicitor, Wellington
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