R v Tu
[2016] NZHC 1334
•7 June 2016
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2015-004-006670 [2016] NZHC 1334
THE QUEEN
v
JIAXIN TU
Hearing: 30-31 May, 1-3 and 6-7 June 2016 Counsel:
K A Lummis and R Thompson for Crown
P H H Tomlinson and P Gruar for DefendantJudgment:
7 June 2016
JUDGMENT OF WHATA J
Solicitors: Meredith Connell, Auckland
R v TU [2016] NZHC 1334 [7 June 2016]
[1] Mr Tu faces one charge of murder. He proposes to raise a defence of insanity based on the following expert opinion evidence:1
Under the circumstances he believed he was in, he felt that his actions were morally justified and that he was in a situation where he was acting in self-defence while under a threat to his life. In my opinion, Mr Tu’s autistic thinking may well have resulted in him perceiving his situation as being one in which either he or Mr Wilson were going to die. This together with his heightened state of anxiety, elevated mood and delusional beliefs about being a god may have combined to lead him to commit the alleged offence.
[2] The issue in focus is whether autism spectrum disorder (ASD) and/or autism is a natural imbecility or a disease of the mind for the purpose of the insanity defence codified in s 23 of the Crimes Act 1961.
Background
[3] The Crown alleges that Mr Tu murdered Shane Paul Hawe-Wilson, bludgeoning him to death with a wooden builder’s hammer. The salient alleged facts are as follows. Mr Tu was obsessed with Ms Crystal Hawe and was jealous of the deceased’s sexual relationship with her. In the early morning of Wednesday, 1 July
2015, Mr Tu was resident at an address with Shane, Crystal and another female friend. At about 1.30 am that morning, he obtained a wooden handled builder’s hammer and went into the bedroom where Shane was sleeping. He then struck the back of Shane’s head a number of times, causing major trauma, resulting in the Shane’s death. Mr Tu then left that bedroom and went into the lounge, where he waited until about 6.30 am. He then went back into the bedroom and placed his hand inside Crystal’s pants and tried to remove them, causing her to wake. Shane was found and the alarm was raised.
ASD, Austistic Disorder and Asperger’s Syndrome
[4] The classification of autism-related disorders is a matter of debate,2 but the
following descriptions of ASD, autism and Asperger’s Syndrome, drawn from sources provided by the parties, appear uncontroversial.
1 Psychiatric Report of Dr Wyness dated 2 May 2016 at 11.
ASD
[5] ASD is helpfully explained by Heather Strickland as a range of complex neurodevelopment disorders, characterised by social impairments, communication difficulties and restricted, repetitive and stereotyped patterns of behaviour and that the disorders on this spectrum range from Autism, the most severe form, to
Asperger’s syndrome, which is its mildest form.3
Autistic Disorder
[6] Christine Cea explains the concept of Autistic Disorder (or autism):4
Autism is commonly diagnosed according to the standards in the Diagnostic and Statistical Manual of Mental Disorders (“DSM-V”). One diagnostic criterion for autism is a “[p]ersistent deficit[] in social communication and social interaction.” This criterion is categorized by difficulty having a “normal back-and-forth conversation,” failure to initiate social interactions, or poor verbal and nonverbal communication. Similarly, an autistic individual may have difficulty developing and understanding relationships. Furthermore, due to social impairment, autistic individuals may also demonstrate difficulty with “emotional relatedness” or empathy for others. The DSM-V also lists “[r]estricted, repetitive patterns of behaviour, interests or activities” as a diagnostic criterion for autism spectrum disorder. This may manifest itself through repetitive motor movements or by a preoccupation with specific interests. Autistic individuals might have “[t]ightly focussed attention,” which may lead them to get upset when their focus is overwhelmed. Finally, it is important to note that these are only potential characteristics of autistic individuals as each individual is unique, and not every individual diagnosed with autism will exhibit identical characteristics.
(Footnotes omitted)
[7] And further:5
2 The Diagnostic and Statistical Manual of Mental Disorders (DSM-5) adopted a single umbrella approach to diagnosing individuals with an autism spectrum disorder. By contrast DSM-IV identified four separate disorders: autistic disorder, Asperger’s disorder, childhood disintegrative disorder or the catch all diagnosis of pervasive developmental disorder not otherwise specified. This separate categorisation aligned with the International Statistical Classification of Diseases and Related Health Problems 10th revision (ICD-10). According to Professor Mellsop, the DSM IV and ICD-10 classification of autism-related disorders remain the orthodoxy in New Zealand.
3 Heather A. Strickland “Autism and Crimes: Should Autistic Individuals Be Afforded the Use of an ‘Autism’ Defense?” at 2 (available at referring to the Autism Fact Sheet, National Institute of Neurological Disorders and Stroke (April 5, 2011).
4 Christine N. Cea “Autism and the Criminal Defendant” (2014) 88 St John’s Law Review 495 at
498.
5 At 499–500.
An individual diagnosed with autism may also be diagnosed with another illness or disability. About seventy percent of autistic individuals are also diagnosed with mental retardation, also called an intellectual disability. Autism and an intellectual disability are distinct disabilities, although autism is often confused with an intellectual disability. An individual with an intellectual disability is diagnosed by deficits in general mental abilities, often evident by a lower IQ, and impairment in everyday adaptive functioning. Autism, however, is not diagnosed by any lack of intellectual functioning or low IQ, but rather through social, behavioural, and communicative impairments. Autism also can occur with other “mental impairments” such as seizure disorders or attention deficit disorder.
Asperger’s Syndrome
[8] Asperger’s Syndrome is defined by the ICD-10 as:
A disorder of uncertain nosological validity, characterized by the same type of qualitative abnormalities of reciprocal social interaction that typify autism, together with a restricted, stereotyped, repetitive repertoire of interests and activities. It differs from autism primarily in the fact that there is no general delay or retardation in language or in cognitive development. This disorder is often associated with marked clumsiness. There is a strong tendency for the abnormalities to persist into adolescence and adult life. Psychotic episodes occasionally occur in early adult life.
[9] Asperger’s Syndrome is sometimes called high functioning autism, sharing many of the clinical features associated with autism; including marked impairments in social and communication skills, unusually strong and narrow interests, difficulties with transitions or changes in routines.6 Persons with this disorder commonly have IQs within the normal range, with some showing exceptional skill in a particular area.7 Those with Asperger’s can have poor sleep patterns and be anxious and mistrustful of others to a point bordering on paranoia.8
The Crown’s position
[10] The Crown does not accept that either ASD or autism are a disease of the mind or natural imbecility for the purposes of s 23. More specifically, the Crown
submits:
6 Ian Freckelton SC and Davit List “Asperger’s Disorder, Criminal Responsibility and Criminal
Culpability” (2009) 16 Psychiatry, Pyschology and Law 16 at 17.
7 At 17-18 referring to L Wing “Asperger’s Syndrome: A Clinical Account” (1981) 11
Psychological Medecine 115.
8 At 18.
(a) “Natural imbecility” and “disease of the mind” are legal rather than medical concepts and it is a question of law for the trial judge whether a particular mental condition is included within that term;
(b)There is an expert dispute as whether or not ASD (as distinct from autism) is properly classified as a mental health disorder;
(c) ASD and autism are not considered to be a form of natural imbecility or a disease of the mind by the psychiatric profession, referring to the opinions of Professor Mellsop, Ms Breen and Dr Dean;
(d)There is a clear difference between individuals who suffer from ASD or autism, and those who suffer from ASD or autism combined with an intellectual disability – only the latter might be described as imbecile;
(e) Including all persons who suffer from ASD into the definition of “natural imbecility” or “disease of the mind” is over-inclusive (there currently being 40,000 people in New Zealand that have ASD):
(f) ASD and autism have never been held to be a “natural imbecility” or a
“disease of the mind” for the purposes of s 23;
(g)The Crown is concerned that any changes to or the broadening of the concepts of “natural imbecility” or “disease of the mind” may unwittingly widen the availability of the insanity defence, a concern identified by the Law Commission report in 2010;
(h)Even if it is established that Mr Tu has ASD or autism, there is no suggestion on the available expert reports that Mr Tu is of below normal intelligence or has a low IQ; and
(i)Sentencing provides the more appropriate vehicle for taking into account the effects of ASD or autism in terms of culpability.9
Defence position
[11] Mr Tomlinson responds, in short, that:
(a) ASD and/or autism are natural mental disorders internal to the defendant10 with the potential to substantially impair the cognitive capacity of the sufferer so that he or she does not understand the moral wrongness of his or her actions.
(b)ASD and/or autism therefore qualify either as: (a) “natural imbecility” in the sense of a natural weakness of the mind; or (b) as a “disease of the mind”, in the orthodox sense of a natural mental abnormality impairing cognitive function.11
(c) The law is not concerned with psychiatric classification per se, but rather with whether Mr Tu’s offending was caused by his disordered thinking or perception.12
(d)The issue of whether the imbecility or diseases incapacitated Mr Tu should then be left to the jury.
The expert reports
Fitness to stand trial
[12] Three expert assessments were undertaken in respect of Mr Tu for the purpose of assessing his fitness to stand trial. In a report dated 14 July 2015, shortly
after the offending, Dr Neena Joseph opined that Mr Tu presented with relapse of
9 Citing R v Waititi [2015] NZHC 1211.
10 Referring to DSM-IV and DSM-5 – defined as “pervasive developmental disorders”.
11 Citing Bannin v Police [1991] 2 NZLR 237 (HC).
12 Citing the approach taken by the Court of Appeal in Waitemata Health v Attorney-General
[2001] NZFLR 1222 (CA).
schizophrenia manifesting as grandiose delusional beliefs, persecutory ideas and disorganisation of thought processes. She concluded that Mr Tu was not fit to stand trial because he suffers from an abnormal state of mind characterised by continuous delusions and a continuous disorder of mood and cognition. In a subsequent report, dated 4 November 2015, Dr Joseph observed that Mr Tu suffers from a mental disorder – schizoaffective disorder, but by that stage in time was fit to stand trial.
[13] Dr Ian Goodwin produced the third report on 16 November 2015. He referred to Mr Tu’s psychiatric history dating back to 2007 arising from an assault due to delusional beliefs. He received antipsychotic medication, but had a history of poor compliance. The report concludes that Mr Tu presents with an eight year history of combined psychotic and mood symptoms, having been previously diagnosed as suffering from schizophrenia and schizo-affective disorder. He concurred with a diagnosis of schizo-affective disorder. He observed that Mr Tu had responded well to antipsychotic treatment and also concluded that he was fit to stand trial.
Dr Wyness
[14] The first report on insanity was produced by Dr Russell Wyness.13
Dr Wyness is a psychiatrist working part-time in private practice and part-time as a forensic psychiatrist at the Mason Clinic. His expertise to make a psychiatric assessment of Mr Tu is not challenged. He interviewed Mr Tu on two occasions, namely on 5 April 2016 and on 26 April 2016. He also had access to a range of documentation, including previous psychiatric reports, clinical notes and discussions with Karen Koo, Mr Tu’s sister, to complete an autism assessment.
[15] Dr Wyness’s report identifies the current alleged offending, describes the period leading up to the index offending, Mr Tu’s account of it and the events following the offence. His past psychiatric history is also addressed, together with Mr Tu’s medical history. His forensic history, alcohol and drug history and personal development are also set out at length. Dr Wyness also notes that Mrs Koo completed a 50-item autism spectrum quotient (adolescent version) on her brother on
1 May 2016. It notes that he scored 37/50 points. Mrs Koo says that she did not feel
13 Psychiatric Report of Dr Wyness dated 2 May 2016.
able to provide any answer to four items, which meant he was actually being scored out of 46. The report notes that a study by Baron-Cohen et al (2006) used 32 as a cut-off between the normal control group and the autism spectrum group, with a score higher than 32 being in the autism spectrum group.
[16] The report notes that the score on this instrument for Mr Tu suggests he is well within the autism spectrum range.14
[17] Dr Wyness then presents the following opinions in relation to his assessment of Mr Tu:15
In my opinion, Mr Tu has a lifelong history of autistic features which affect his ability to understand and cope with the complexity of social interactions and to manage them. He has a concrete view of the world and has a tendency to use sequential thinking rather than being able to assess the speech and behaviour of others on different levels in different contexts, integrate these and make appropriate decisions to them on that basis. Thus his ability to make decisions on the basis of choosing from a group of partially suitable alternatives, depending on various weightings of the suitability of each, is poor.
[18] Dr Wyness also observes:16
Rather than seeing [police instructions] as relative restrictions which could be overridden by the severity of the threat perceived against him, he proceeded with what he reasoned was the only option if his own life was under threat. Mr Tu has poor ability to understand the beliefs and intentions of others (referred to in psychiatry and psychology as “theory of mind”). People with autistic features also often experience difficulties with affect modulation ... Under the stressors which Mr Tu had been experiencing for some months, his anxiety levels had increased and they were likely at a very high level in the days running up to the index offence and particularly at the time of the index offence.
[19] The report also observes that Mr Tu has a history of experiencing episodes from weeks to months, over at least nine years prior to the offence. It is said that he has displayed bizarre behaviour at times during this period and has displayed an increase in what it appears to others to be narcissistic, entitled demands for others to
do his bidding and meet his needs.17 The report observes that Mr Tu has a history of
14 At 9.
15 Above.
16 At 10.
17 Above.
using benzodiazepine medications and, in the absence of these medications, he has turned to cannabis and alcohol to self-medicate.18 Dr Wyness then observes:19
In my opinion, therefore, at the time of the index offence, Mr Tu was being affected by all of the above factors. His autistic features are always present because of the pervasive nature of the condition. He was being affected by a number of major life stressors, including his mother being in a terminal stage of illness; having been made to leave home and cope with living independently, which he had never done previously; he had no stable accommodation; was facing a criminal charge of assault as a result of striking his father and had been assaulted a week before and throughout the day prior to the index offence by Mr Wilson.
[20] The report states that in the months leading up to the offending, Mr Tu increasingly displayed behaviours usually associated with him becoming psychotic. He has been noted as making claims of being God and Jesus while other people belonged to a lower order. These beliefs have followed a pattern over the years: they are prominent when he is unwell and inadequately treated but, substantially diminish or fade away when he is adequately treated with anti-psychotic medication.
[21] The report then addresses s 23 of the Crimes Act and “insanity” as defined.
Dr Wyness observes:20
As I have described above, Mr Tu is always affected by his autistic features and the ways in which they affect his perceptions and decision making, particularly in relation to his relationships with others, perceptions and understandings of the thinking, feelings and actions of others. In addition to this I believe there is evidence that Mr Tu was experiencing an exacerbation of his psychotic symptoms both for one to two months at least prior to the offending and for a further four or five weeks after he was admitted and treated at the Mason Clinic before he began to show a steady resolution of his psychotic symptoms. In this way I believe that Mr Tu fulfils the criteria under Section 3 of Section 23 of the Crimes Act….
[22] Dr Wyness also opines that Mr Tu understood the nature and quality of his actions and was not aware that Mr Tu was acting as a direct result of a delusionary belief or hallucination in striking Mr Wilson. He adds, however:21
I believe that a combination of rigid, sequential, autistic thinking and his elevated level of anxiety led him to believe that his situation was one in which he had no other options but to take action to save his life by reducing
18 Above.
19 Above.
20 At 11.
21 Above.
or removing the threat made by Mr Wilson who he believed was intending to take his life. Under the circumstances he believed he was in, he felt that his actions were morally justified and that he was in a situation where he was acting in self-defence while under threat to his life. In my opinion, Mr Tu’s autistic thinking may well have resulted in him perceiving his situation as being one in which either he or Mr Wilson were going to die. This, together with his heightened state of anxiety, elevated mood and delusional beliefs about being a god may have combined to lead him to commit the alleged offence. If a person is in a situation in which he believes that his life is under threat and that (because of his autistic thinking) he believes there is no alternative but that either he or the other person will die, then acting to save his life by killing the other person, may be viewed as not being morally wrong under those circumstances.
(Emphasis added)
[23] Dr Wyness comments on whether ASD is a “natural imbecility” or “disease of the mind”. As ASD has been classified as a “pervasive developmental disorder” in the DSM frameworks, he believes therefore that it is reasonable that ASD could be considered as a form of “natural imbecility” as it is a condition with which the person is born, there is no cure for the condition, and the condition impairs cognition involved in social judgments and functioning and other areas such as affect and anxiety modulation.
Dr Dean
[24] The second report on insanity was produced by Dr Dean for the Crown.
[25] Dr Dean reviewed a number of sources of information, overlapping largely with the information reviewed by Dr Wyness and, like Dr Wyness, produced a short history of Mr Tu’s background, including his psychiatric and medical history.
[26] Dr Dean expresses the following opinion about Mr Tu’s mental capacity:22
In my opinion Mr Tu has a diagnosis of schizoaffective disorder. This diagnosis is consistent with his long-term clinical record, his treatment with antipsychotic medication and his response to treatment in the Mason Clinic. Mr Tu had a dramatic change in his social and occupational functioning in his mid 20s. He had been studying for a Bachelors degree, was living independently and had established relationships, including an intimate relationship. He first presented to psychiatric services in 2007 following an assault on his mother and other bizarre behaviour. Since that time he has
22 Psychiatric Report of Dr Dean dated 24 May 2016 at 11.
been unemployed, erratic in his behaviour and expressing grandiose and religious delusions, primarily believing he is God or Jesus. He has required several admissions to psychiatric hospital, subject to the Mental Health (Compulsory Assessment and Treatment) Act 1992 and has also received compulsory community care, subject to a Compulsory Treatment Order. He has been treated with injectable antipsychotic medication due to his poor adherence to oral treatment. He has been unreliable with his medication and prone to exacerbations of his psychosis when using illicit substances.
[27] Dr Dean notes there is some dispute about his diagnosis in his medical records but his primary diagnosis has been schizophrenic illness with affective symptoms.
[28] Dr Dean observes that Mr Tu has attracted a diagnosis of ASD and notes from the medical literature that there is considerable dispute or debate as to the association between schizophrenia and ASD. Dr Dean goes on to observe:23
I would be very reluctant to diagnose autistic spectrum disorder in the context of profound psychosocial dysfunction, affective dis-regulation and chronic symptoms of psychosis. However, identification of autistic spectrum symptoms are helpful considerations in developing management plans and acknowledging oddness of behaviour.
[29] Dr Dean then expresses the following opinion in terms of mental disorder:24
…Mr Tu has a history of delusions, disorder of mood and disorder of cognition (disorganised thinking) which constitutes an abnormal state of mind. As a consequence of his abnormal state of mind he has posed a serious risk to the safety of others and therefore can be considered mentally disordered. He is currently receiving treatment in a prison setting and can be managed on an informal basis. However, it is possible that he may intermittently require detention under the Mental Health Act to ensure in- treatment and I note that he has required hospitalisation in the past. His illness is contained by the use of medication and abstinence from illicit substances.
(Emphasis added)
[30] As to “natural imbecility”, he observes that it is not a currently used medical term and therefore has a legal meaning for the Court to define. In his opinion, the term “natural imbecility” is intended to encompass those with intellectual disability, with the term’s historical roots being from the archaic term “imbecile” (someone
with an IQ of 50 – 25). ASD is common in intellectual disability, he says, however,
23 At 12.
24 Above.
he is uncertain whether the Court envisages encompassing ASD occurring in individuals with normal intelligence as natural imbecility.
[31] He goes on to state:25
…it is my view Mr Tu was labouring under a disease of the mind at the material time of the alleged offending. He has a diagnosis of schizophrenia. His medical records indicate a period of unstable mood, erratic behaviour and delusions in the period leading up to the alleged offence. As recorded in the witness statements of his probation officers, he was erratic, making inappropriate sexual comments, propositioning various women inappropriately and expressing delusions he was God. In the days following his alleged offence, Mr Tu was admitted to the Mason Clinic. He was assessed as experiencing a disturbance of mood, with systems of elevation and lability. He described bizarre ideas, including a belief he was Jesus and God. His condition was considered severe enough for him to be, at least temporarily, unfit to stand trial. Therefore, in my opinion, Mr Tu was suffering from symptoms of psychosis due to schizoaffective disorder at the material time of the alleged offence, which is usually considered by the Court to constitute a disease of the mind.
(Emphasis added)
[32] He also observes that Mr Tu was, in his opinion, aware of the nature and the quality of his actions at the material time of the alleged offence. At the time of the offence he reported intending to kill the victim. He says he grabbed the hammer and hit the victim as it was “kill or be killed”. He intended for the victim to die and was aware hitting him with a hammer could result in his death. He did not anticipate a different outcome.
[33] Dr Dean agrees with Dr Wyness that Mr Tu described believing he was able to return home and he expected the police to believe he was acting in self-defence.
[34] Dr Dean notes that there are allegations before the Court that Mr Tu attempted to hire a hit man and openly expressed his desire for Crystal’s boyfriend to die. If so, it was suggested to Dr Dean that Mr Tu was able to minimise his behaviour and rationalise it, inconsistent with a concrete interpretation of the world and an inability to think abstractly, both of which are associated with autism. Dr Dean adds that, regardless, Mr Tu was able to understand making threats was
morally wrong and he was able to conceptualise the difference between making
25 At 13.
threats and acting out on those statements. He says that Mr Tu acknowledges his obsession with Crystal and that he had arranged to pay the victim money to leave. Dr Dean also refers to reports of repeated assaults by the victim, in which the victim goaded and harassed Mr Tu, suggesting that Mr Tu had established a pattern of planning homicide of those having a relationship with Crystal, the object of his desire.
[35] Dr Dean therefore concludes that, in his opinion, on the balance of probabilities, Mr Tu was capable of knowing the moral wrongfulness of his actions at the material time of the alleged offending, having regard to the commonly held standards of right and wrong. Dr Dean says that Mr Tu’s behaviour and decision- making show poor judgment and that Mr Tu was influenced by his psychiatric condition, but not to a degree that he was legally insane.
Evidence
[36] For the purposes of assessing whether ASD or autism qualifies as a “disease of the mind” or “natural imbecility”, evidence was produced by Professor Mellsop, Ms Breen, Dr Dean and Dr Wyness.
Professor Mellsop
[37] Professor Mellsop is recognised as one of New Zealand’s leading experts on the classification of mental illness. He has written extensively on the concept of insanity.
[38] Professor Mellsop noted that the ICD-10 is the official guide for New Zealand. He accepted that DSM-IV is widely used but that DSM-5 has not been accepted by anyone except the American Psychiatric Association. He observed that ASD as described in the DSM-5 is a contentious grouping and a label that overlaps with other disorders. He contrasts this to recognised disorders such as autism and Asperger’s Syndrome. He considers that autism and Asperger’s are lifelong ways of being, that manifest themselves in terms of social relations and can result in varying
degrees of disability. In his view, psychotic systems are not an inherent part of these disorders, and if someone is deluded then a different diagnosis is needed.
[39] As to natural imbecility, Professor Mellsop opines that it refers to a sub- normality of three grades – idiot, moron and imbecile. All of these grades relate to intelligence and characterised by intellectual disability. Autism can be accompanied by varying degrees of intellectual ability, from really severe intellectual disability – such that they cannot learn to speak – to the other end, where they may, for example, have the ability to perform extremely difficult intellectual tasks (e.g. code-breaking). He opined that autism is definitely not a form of natural imbecility.
[40] As to disease of the mind, in his view, it has been characterised almost uniformly by the presence of psychosis and by this, he means, that the affected person is out of touch with reality, delusional, holding fixed false beliefs, and affected by hallucinations. Disease of the mind is, in his view, a thought disorder also manifesting itself in the affected person talking rubbish. He used schizophrenia as an example of a disease that induces psychosis or psychoses. He observes that anyone can develop schizophrenia so, in that sense, it conforms to the notion of disease. He notes, by contrast, autism is outside of a psychotic condition.
[41] Under cross-examination, he accepted that autism is a category recognised by DSM-IV as a major mental disorder. He repeated that the DSM system is essentially an accounting system and is not recognised as a proper classification system. He noted also that the ICD-10 identifies autism as a developmental disorder. He is nevertheless comfortable with the notion that autism is a mental disorder at the severe end, within the mental health legislation. He accepts that persons with autism may develop other mental illness, such as schizophrenia, with the resultant psychotic episodes. But in such cases psychosis would be the dominant diagnosis, rather than autism.
[42] In answering questions from me, he observed that autism was not causative of psychotic symptoms but these may develop in association with autism. He accepted that:
(a) Autism is a mental disorder; (b) It can be severe and enduring;
(c) It is known to have effects on cognitive functioning; and
(d)To such an extent that it might impair the ability of the affected person to know what he was doing was morally wrong.
[43] With regard to the overlap between autism and psychopathy, Professor Mellsop explained that psychopathy is a reference to anti-social people, commonly with personality disorders and has a lot in common with autism but autism is not a “personality disorder”. Rather, autism is a developmental disorder that manifests itself in different ways, depending on the stage of development.
[44] Finally, he noted that the concept of “disease of the mind” does not fit within the normal psychiatric conceptual framework. But, in his experience, it is commonly associated with psychosis.
Ms Breen
[45] Ms Breen is a psychologist specialising in intellectual disability. She has, since 2002, focused on autism. She is a member of the New Zealand team which has developed the ASD Guideline and is currently completing a doctoral thesis on autism and criminal law.
[46] Ms Breen opines that autism is not a natural imbecility and considers that “disease of the mind” refers, in her experience, to psychoses. She considers that autism is a developmental disorder that is often diagnosed early on in life. At present there are approximately 40,000 people estimated as having autism although many, as yet, have not been diagnosed.
[47] She says there is no correspondence between persons with autism and criminality. Recent research has indicated that the prevalence of autism amongst the
criminal population is roughly the same as the general population. The general consensus, she says, is that there is no link between autism and criminality.
[48] In her view, autism is not a disease of the mind but rather a pervasive developmental disorder. It is not curable or treatable in a medical sense and does not fit at all within a disease model. She accepts that some of the symptoms associated with autism, for example, anxiety can be managed and treated with medical assistance but that autism itself is not treatable and, in that sense, is not a disease. She opined that there is no necessary nexus between autism and psychosis. She does not characterise autism as an “abnormal state of the mind” because, for the person, it is their normal state. She indicated that it is not yet clear what causes autism but accepts that there may be a genetic component. As to imbecility, in her experience, it is a reference to a grading on an IQ spectrum and is in the intellectually disabled range.
[49] She accepted:
(a) Autism is a mental disorder for classification purposes, but there is a strong movement to suggest that it is not.
(b) It can be severe and enduring.
(c) It is known to have an effect on cognitive function and, in particular, impairs the ability to recognise what other people are thinking. This is referred to as a “theory of the mind” impairment. It does not occur in all persons with autism.
(d)The effect on cognitive function may impair the ability of the affected persons to know what they were doing was morally wrong, particularly in relation to low functioning autistic persons or high functioning autistic persons with severe “theory of the mind” problems. She observed that persons with autism are often rule- governed and this is a protective factor against moral wrongdoing.
[50] Ms Breen also noted that a “theory of the mind” impairment may not be picked up early in the development of an individual, particularly in high functioning persons with autism. But she did note that a high functioning person is more likely to know that their actions are morally wrong.
[51] She emphasised the implications potentially for persons with autism if they are considered to be insane, namely, that there is no prospect of recovering from the autism, with the consequence that they may need to be institutionalised for very lengthy periods. She accepted, however, that, conversely, the prospect of a person suffering from autism being incarcerated within the criminal system for lengthy periods is of equal concern.
Dr Dean
[52] Dr Dean agreed with what had been said by Professor Mellsop and Ms Breen and said that, in terms of all of the forensic literature that he had read, ASD falls outside the insanity defence. He accepted that ASD is a mental illness, as categorised by DSM-IV and DSM-5 but that it is very rarely used in the context of mental health legislation. He also accepted that a mood disorder might qualify as a disease of the mind but it is usually associated with psychosis. He noted, by way of example, that depression would not normally be categorised as a disease of the mind for the purposes of an insanity defence and it would need to be such that it could affect reasoning. He said that, in his experience, a relevant disorder would need to be moving into a psychotic illness in order to be categorised properly as a disease of the mind.
[53] In relation to autism, he does not consider that persons with autism “lose touch with reality”. They simply have a different way of interpreting the world. He notes that people with autism have the ability to adapt their thinking, had not lost the ability to adjust and do not tend to lose all sight of reality. He confirmed that, in his experience, a disease of the mind is mostly associated in all of the literature with psychosis.
[54] Dr Dean accepted:
(a) That autism is a mental disorder; (b) It can be severe and enduring;
(c) It is known to have effects on cognitive functioning and is more severe with those persons that are clearly functionally impaired;
(d)The effect of this can be such as to impair the ability to know what is wrong, agreeing in particular with Ms Breen’s opinion that, in relation to high functioning individuals, that it may manifest itself in high functioning persons with a severe “theory of the mind” problems. It would likely manifest itself in lifelong cognitive view of the world and patterns consistent with that cognitive view.
Dr Wyness
[55] Dr Wyness accepted that autism does not fit easily into either natural imbecility or disease. He accepted that imbecility is commonly associated with intellectual disability and that disease, as Professor Mellsop said, is normally a condition or illness that occurs during one’s life which changes the functioning of the brain and that this does not apply to autism. He also accepted that disease of the mind normally is associated with psychotic illness which substantially affects the ability to reason under certain circumstances.
[56] He does, however, opine that a psychotic illness has features that are consistent with autism and that, in this particular case, Mr Tu’s incapacity to reason as to the moral wrongness of his behaviour, was exemplified by a number of answers given in the assessment process, including an equivalent estimate of the wrongness of breaching a trespass order and killing Mr Hawe-Wilson. He noted evidence from Mr Tu’s sister that he always presented a problem but was provided a support and buffer to prevent behaviour becoming problematic in his formative years.
[57] Dr Wyness emphasised that autism does not sit on a single continuum but there are multi-axial differences with the potential for severe impairment in limited aspects. He says that ASD cannot be placed in a specific category and some aspects
of it can impair cognition and/or volition. He accepts that it cannot be cured, but that behaviours can be modified.
[58] He noted that, in relation to Mr Tu, when under stress his autism can significantly affect his brain functioning.
[59] He accepted under cross-examination that his opinions as to natural imbecility and disease of the mind are controversial and that he is “pushing the boat out”. He disagrees that psychotic symptoms determine whether there is a disease of the mind but accepts that it is the most common situation where a defence of insanity is used.
[60] Under questioning from me about whether Mr Tu’s diagnosed psychoses may have caused the incapacity on the night, he said that he was unable to reach a conclusion on that and preferred to analyse it in terms of the impact of his autism. He accepted that his approach was unorthodox but observed that there have been examples where people with mania and with traumatic brain injury have been considered to have a disease of the mind.
[61] Dr Wyness emphasised that, in terms of the merits, Mr Tu had a concrete understanding of the threats and that he believed that he had only one of two options available to him, namely, that he either be killed or that he kill Mr Hawe-Wilson. Mr Tu was unable to reason appropriately that there was an alternative course of action because his thinking is in such absolute terms. Dr Wyness said it is very likely that psychotic symptoms, combined with alcohol and cannabis, also impaired Mr Tu’s cognitive function. But Dr Wyness could not say that there was a specific indication that such factors were in play.
The frame
[62] The defence of insanity is governed by s 23 of the Crimes Act 1961, which states:
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 when labouring under natural imbecility or disease of the mind to such an extent as to render him 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 did or omitted the act, and insane delusions, though only partial, may be evidence that the offender was, at the time when he did or omitted the act, in such a condition of mind as to render him 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.
[63] It is common ground that a defendant who wishes to rely on a defence of insanity must establish:
(a) A presence of either a “natural imbecility” or a “disease of the mind”;
and
(b)That either one of these was present at the time of the offending, such that he or she was rendered incapable of either:
(i) Understanding the nature and quality of the act or omission; or
(ii) Of knowing that the act or omission was morally wrong.
Interpretation
[64] Leading authority across the common law jurisdictions is instructive as to
meaning of “disease of the mind” in the light of the purpose of the insanity defence.
England
[65] In Bratty v Attorney-General of Northern Ireland Lord Denning opined:26
... any mental disorder which has manifested itself in violence and is prone to recur is a disease of the mind.
[66] In R v Sulivan, Lord Diplock similarly held: 27
I agree with what was said by Devlin J in Reg. v. Kemp [1957] 1 QB 399,
407 that 'mind' in the M'Naghten Rules is used in the ordinary sense of the mental faculties of reason, memory and understanding. If the effect of a disease is to impair these faculties so severely as to have either of the consequences referred to in the latter part of the rules, it matters not whether the aetiology of the impairment is organic, as in epilepsy, or functional, or whether the impairment itself is permanent or is transient and intermittent, provided that it subsisted at the time of commission of the act. The purpose of the legislation relating to the defence of insanity, ever since its origin in
1880, has been to protect society against recurrence of the dangerous conduct.
Canada
[67] In R v Rabey, Justice Ritchie for the majority of the Supreme Court of
Canada stated: 28
Any malfunctioning of the mind or mental disorder having its source primarily in some subjective condition or weakness internal to the accused (whether fully understood or not) may be a 'disease of the mind' if it prevents the accused from knowing what he is doing, but transient disturbances of consciousness due to certain specific external factors do not fall within the concept of disease of the mind.... Particular transient mental disturbances may not, however, be capable of being properly categorized in relation to whether they constitute 'disease of the mind' on the basis of a generalized statement and must be decided on a case-by-case basis.
[68] In Cooper v R, the Supreme Court also held: 29
In summary, one might say that in a legal sense “disease of the mind” embraces any illness, disorder or abnormal condition which impairs the human mind and its functioning, excluding however, self-induced states caused by alcohol or drugs, as well as transitory mental states such as hysteria or concussion.
26 Bratty v Attorney-General of Northern Ireland [1963] AC 386 (HL) at 412.
27 R v Sulivan [1984] 1 AC 156 (HL) at 172.
28 R v Rabey [1980] 2 SCR 513 (SCC) at 519.
29 Cooper v R [1980] 1 SCR 1149 (SCC) at 1159.
Australia
[69] The seminal decision in Australia in terms of jury direction remains Dixon J’s narrative in R v Porter.30 His Honour’s description of disease of the mind is helpful to judges and juries alike:31
The next thing I wish to emphasize is that his state of mind must have been one of disease, disorder or disturbance. Mere excitability of a normal man, passion, even stupidity, obtuseness, lack of self-control and impulsiveness, are quite different things from what I have attempted to describe as a state of disease or disorder or mental disturbance arising from some infirmity, temporary or of a long standing.
…
I have used the expression “disease, disorder or disturbance of the mind.” That does not mean (as you heard from the doctor’s replies this morning to certain questions I asked him) that there must be some physical deterioration of the cells of the brain, some actual change in the material, physical constitution of the mind, as disease ordinarily means when you are dealing with other organs of the body where you can see and feel and appreciate structural changes in fibre, tissue and the like. You are dealing with a very thing – with the understanding. It does mean that the functions of the understanding are through some cause, whether understandable or not, thrown into derangement or disorder.
[70] And further:32
..... The question is whether he was able to appreciate the wrongness of the particular act he was doing at the particular time. Could this man be said to know in this sense whether his act was wrong if through a disease or defect or disorder of the mind he could not think rationally of the reasons which to ordinary people make that act right or wrong? If through the disordered condition of the mind he could not reason about the matter with a moderate degree of sense and composure it may be said that he could not know that what he was doing was wrong.
[71] Dixon J then directed the jury in relation to the facts:33
If you think that at the time when he administered the poison to the child he had such a mental disorder or disturbance or derangement that he was incapable of reasoning about the right or wrongness, according to ordinary standards, of the thing which he was doing, not that he reasoned wrongly, or that being a responsible person he had queer or unsound ideas, but that he
30 R v Porter [1936] 55 CLR 183 (HCA), later affirmed by the High Court of Australia in Stapleton v R (1952) 86 CLR 358, [1952] ALR 929 (HCA).
31 R v Porter, above, at 188–190.
32 At 189–190.
33 At 190.
was quite incapable of taking into account the considerations which go to make right or wrong, then you should find him not guilty upon the ground that he was insane at the time he committed the acts charged.
(Emphasis added)
New Zealand
[72] Chapman J’s approach in R v Monkhouse34 is also illustrative of the requisite inquiry. The reported judgment records:
The prisoner was charged with attempting to murder Mr Campbell, a farm manager in whose house he had been living for three months. He had lived on perfectly friendly terms with Campbell and his family. His age was 68. The only peculiarity noticed was that he had a habit of muttering to himself when in his room. On the evening in question Campbell’s son heard him mutter: “Him and I for it. If I don’t kill him he’ll kill me.” Later he came into the room holding a knife he had been sharpening with which, without warning, he stabbed Campbell, inflicting several severe wounds, after which he inflicted several wounds on himself. The crime was absolutely motiveless.
Nolan [for the Crown] put to Dr Ross, the Medical Superintendent of the hospital, to which the accused had been taken, several question which medical experts were asked in Rex v. Goode (11 G.L.R. 538). all of which were answered as in that case.
CHAPMAN J. – I wish to put to you, Dr Ross, further questions applicable to a case where delusions of this kind appear:
Q. Is it not recognised fact that delusions which appear to be limited to an isolated topic may really be symptoms of a more general condition?
A. That is so.
Q. Do you not regard them in such a case as probably indicating a diseased condition of the brain affecting the volition of the person exhibiting them?
A. Yes.
Q. Is it considered that delusions of persecution or delusions involving the danger of being attacked and killed are especially indicative of deep-seated insanity?
A. Yes.
CHAPMAN J, explained the law to the jury and added: .... you will bear in mind the evidence on this head, and, further, the medical evidence which
34 R v Monkhouse [1923] GLR 13 (SC).
may properly lead you to the conclusion that the man’s delusions were not isolated delusions, but are indicative of a diseased brain and are really only symptoms of insanity resulting in irresponsibility.
The accused was acquitted on the ground of insanity.
[73] In R v Cottle Gresson P held:35
…"disease of the mind" — a term which defies precise definition and which can comprehend mental derangement in the widest sense whether due to some condition of the brain itself and so to have its origin within the brain, or whether due to the effect upon the brain of something outside the brain, e.g. arterio sclerosis. The adverse effect upon the mind of some happening, e.g. a blow, hypnotism, absorption of a narcotic, or extreme intoxication all producing an effect more or less transitory cannot fairly be regarded as amounting to or as producing "disease of the mind".
[74] In R v MacMillan36 the Court of Appeal held that a direction that the Dixon J gave to the jury in R v Porter was the exemplar, the significance of which, for present purposes, is that the Court adopted a subjective appreciation of moral wrongfulness – that is:37
It seems to us that the answer is to be found by reading the summing up of Dixon J in R v Porter (supra) – a direction that has come to be regarded as a classic in this country. Reading that report, which is not a long one we find that Dixon J first read the rule to the jury, and put the defence to them thus:
“It is supposed that he knew he was killing, knew how he was killing and knew why he was killing, but that he was quite incapable of appreciating the wrongness of the act. That is the issue, the real question in this case. Was his state of mind of the character? …. We are not dealing with right or wrong in the abstract. The question is whether he was able to appreciate the wrongness of the particular he was doing at the particular time.
(Emphasis added)
[75] In R v Hamblyn38 the Court of Appeal said:
Section 23 of the Act is reserved for those instances where an offence is committed by a person who, whether or not suffering from a mental illness as medically diagnosed, lacks the necessary understanding that he or she is acting wrongly.
35 R v Cottle [1958] NZLR 999 (CA) at 1011.
36 R v MacMillan [1996] NZLR 616 (CA) at 619.
37 At 621.
38 R v Hamblyn (1997) 15 CRNZ 58 (CA) at 66.
[76] The Court of Appeal in R v Dixon,39 adopted Macmillan, and referring to the following passages of Simester & Brookbanks, Principles of Criminal Law:40
The practical effect of this decision [R v Macmillan] has been to affirm that the statutory test for insanity in New Zealand is based on a subjective moral standard. This implies that an accused will not be criminally responsible for his acts if, as a result of mental disease, he believes he is morally justified in his behaviour even though he may have known that his acts were illegal and/or contrary to the public standards of morality (i.e. that he would be condemned in the eyes of “right thinking people”).
And further:41
The reason why this approach may now be accepted is that it conforms both with the way in which exculpatory insanity has been understood historically, and that it reflects sound commonsense. No person should be convicted of a crime whose mind is so disordered that he is unable to make the moral judgments which, in “sane” people, enable them to live socially integrated lives and to choose conduct which conforms with both moral and legal norms. It is that capacity which is so radically lacking in an “insane” person.
[77] The Court went on to affirm that the object of the jury inquiry is simply “whether the defendant had established on the balance of probabilities did not know that what he was doing was morally wrong”.42 This was translated into a model direction:43
Did Mr Dixon, because of the disease of his mind, not know that what he was doing was morally wrong?
[78] More recently the Court of Appeal in Duval-Smith v R44 took the opportunity to restate and adopt the subjective approach as stated in R v MacMillan and affirmed in R v Dixon.
Natural Imbecility
[79] Natural imbecility has received markedly less attention. The leading guidance appears to be the statement made by Dubin JA in R v Cooper.45 The Judge observed
39 R v Dixon [2007] NZCA 398, [2008] 2 NZLR 617.
At [27]. The comment made by Simester & Brookbanks is contained in Principles of Criminal
Law (3rd ed, Brookers, 2007) at [10.3.5].
41 R v Dixon, above n 39, at [28].
42 At [32].
43 At [34].
44 Duval-Smith v R [2013] NZCA 492.
that “natural imbecility” must be given an independent meaning from the term “disease of mind”. He considered it to be a reference “to the imperfect condition of mental power from congenital defect or natural decay as distinguished from a mind once normal which has become diseased”.46 He concluded that “imbecile” is simply defined as “mentally weak; of weak character or will through want of mental power”; and that it does not require a low intelligent quotient.47
[80] The experts uniformly identified imbecility on a continuum of intellectual disability containing three grades of intelligence – namely idiot, moron and imbecile. Those observations are not inconsistent with the view expressed by Dubin JA, given the central requirement for a mental weakness.
Summary
[81] As Simester and Broadbanks suggest “disease of the mind” generally refers
to:48
…. any malfunctioning of the mind which has its source primarily in some subjective condition or weakness that is internal to the defendant (whether or not it is fully understood).
[82] The clinical description of any underlying mental disorder (e.g. personality, behavioural, developmental, functional, organic, temporary, permanent, congenital etc.) is not determinative. But cases of mental disorders qualifying without the presence of psychosis (in the sense of perceiving things when there is no stimulus to
perceive them)49 have been exceptional. The leading examples of qualifying non-
45 R v Cooper [1978] J No 589 (ONCA). The judge dissented in the result reached by the Ontario Court of Appeal, but the decision was successfully appealed albeit on a different basis, namely that the jury should have been invited to consider insanity on disease of the mind grounds, see Cooper v R, above n 29. In AP Simester & WJ Brookbanks Principles of Criminal Law (4th ed, Thomson Reuters, Wellington, 2014) the learned authors identify this statement to be the position in law in Canada prior to legislative amendments changing the nature of the defence (at
332). The learned authors also postulate that autism might qualify as natural imbecility (at 331–
332). For reasons specific to this case, as noted at [84], I do not think that the comments made apply to Mr Tu. The requisite characteristics are simply absent.
46 R v Cooper, above, at [32].
47 At [43].
48 Simester, above n 45, at 339.
49 A definition provided by Professor Mellsop.
psychotic disorder are characterised by cognitive dissonance or loss of consciousness.50
Is ASD a “disease of the mind” or a “natural imbecility”?
[83] In the present case I am invited to include ASD within the definition of a natural imbecility or disease of the mind. I immediately reject that possibility. As Professor Mellsop noted, that spectrum covers a wide range of mental conditions. Such a broad sweeping classification within the definition of disease of the mind cannot be justified on the evidence before me.
Is autism a “disease of the mind” or a “natural imbecility”?
[84] None of the experts considered that natural imbecility was an appropriate description of autism. It may be that natural imbecility might properly apply in very severe cases of autism accompanied by an intellectual disability. But I reject that prospect in Mr Tu’s case. Dr Wyness was “pushing the boat out” by speculating on its application in the present case. While “natural imbecility” does not necessarily require a low intelligence quotient, it is plainly an inapposite description of a person, like Mr Tu, who has no difficulty in comprehending complex concepts, including for
example, the terms of his parole.51 An invitation to the jury to find Mr Tu not guilty
premised on natural imbecility, would be an invitation to find guilt.
[85] The experts agreed that autism can be a severe and enduring mental disorder that may affect cognitive function to such an extent that the affected person is incapable of making a moral judgment or understanding the moral wrongfulness of his or her actions.52 Ms Breen (a specialist in autism) indicated that this might be so in very low functioning persons with severe autism or high functioning persons with
severe “theory of mind” problems – i.e. the inability to recognise that another person
50 Bratty v Attorney-General of Northern Ireland, above n 26, and R v Sullivan, above n 27 (epilepsy); R v Kemp [1957] 1 QB 399 (EWCA) (arteriosclerosis); R v Quick [1973] 1 QB 910 (EWCA) and R v Hennessy [1989] 2 All ER 9 (EWCA) (diabetes); R v Burgess [1991] 2 QB 92 (EWCA) (sleepwalking).
51 The evidence presented by the Crown showed that Mr Tu was well aware of his conditions of parole, including non-association with Crystal, the object of his affection.
52 These are the elements identified by the Law Commission as characterising ‘disease of the mind’ in psychiatric assessment – see Law Commission Mental Impairment Decision-Making and the Insanity Defence (NZLC R120, 2010) at [2.10].
has their own unique thoughts and feelings and predict those.53 The experts also agreed that autism is not normally described as a “disease”. Three of them specifically eschewed the prospect of autism being defined as a disease of the mind. Professor Mellsop opined that autism is a developmental disorder and was not a disease (in the sense that a disease has an onset), a psychosis (characterised by delusions or fixed false beliefs) or causative of psychosis. Ms Breen considered that autism was not treated in practice as a disease and it was not treatable or curable like
a disease.54 Dr Dean agreed with Professor Mellsop that autism was not a psychotic
disorder and not identified within the psychiatric profession as a disease of the mind. Dr Wyness accepted that disease of the mind is not a good description for autism; that the orthodox psychiatric view did not consider that autism was a disease or linked to insanity and that he was “pushing the boat out” insofar as he was inviting the Court to conclude that it was a disease of the mind. But he stressed that autism can manifest itself in the types of abnormal reasoning associated with psychosis and should be considered a disease of the mind if that abnormal reasoning affects the ability to form moral judgments.
[86] Given the foregoing, I consider that “autism” is not a disease in the ordinary sense used by psychiatrists or psychologists and is not generically a disease of the mind. It is a developmental disorder that does not cause psychosis, delusions or incapacitate cognitive function except, perhaps, in severe cases. But in theory, at least, a low functioning person affected by severe autism or a high functioning person with severe “theory of mind” problems may be incapable of understanding what he or she is doing or to rationally form moral judgments. In this much more limited sense, some acute forms of autism might qualify as a “disease of the mind”.
Policy considerations
[87] Competing policy considerations are in play. The Law Commission did not
support an amendment to s 23 to replace “disease of the mind” with a simple reference to “mental disorder”. The Commission appeared to be concerned that this
53 Notes of Evidence on Pre-Trial Application at 37-38.
54 Ms Breen accepted however that “if they are so badly affected by autism that they don’t know
right from wrong, then the [defence of insanity] should be available to them” (at 41).
would open up the insanity defence too widely.55 Balanced against this, academic writing has highlighted legitimate concerns about the past criminalising of persons affected by autism who genuinely were incapable of knowing or understanding how others think and/or suffered from severe impairment of the capacity to appreciate the potentially damaging effects of their actions.56 A further consideration is the concern expressed by Ms Breen about classifying autism as a disease of the mind for it is something that cannot be treated by medication and an insanity finding carries with it the prospect of indefinite institutionalisation.
[88] Taken together, these considerations support a cautious approach. Broad brush generalisations are to be avoided, especially involving novel insanity claims premised on non-psychotic disorders. Experts should be cautioned against speculating without having first satisfied themselves that the requirement for incapacitation has been met. But clear cases of mental disorder causing severe cognitive dysfunction fall to be considered within the rubric of s 23.
Mr Tu’s condition
[89] I turn then to briefly examine whether the mental disorder described in
Dr Wyness’s report is a disease of the mind.
[90] Dr Wyness suggests that Mr Tu acted in insane self-defence because of his rigid, sequential, autistic thinking which together with his heightened state of anxiety, elevated mood and delusional beliefs about being a god, may have combined to lead him to commit the alleged offence. On this evidence Mr Tu does not obviously fall into either of the categories of incapacitating autism identified by Ms Breen. Mr Tu is not low-functioning and no clear linkage has been drawn between Mr Tu’s “theory of mind” problems and his offending.
[91] But the combination of elements underlying Mr Tu’s mental dysfunction
(including psychosis) legitimately raises a prima facie case for Mr Tu suffering from a disease of the mind – that is, a natural, internally sourced malfunction in cognitive
55 Law Commission, above n 52, at [4.44].
56 Justin B. Barry-Walsh & Paul E. Mullen “Forensic Aspects of Asperger’s Syndrome” (2003)
Journal of Forensic Psychiatry & Psychology 1 at 10–11.
reasoning that impairs his capacity to make moral judgments. This accords with
Dr Dean’s assessment, although he does not rely on autism as a critical factor.
Autistic insane self-defence
[92] Whether the defence of autistic insane self-defence (sans psychosis) is, in law, available will need to be examined carefully. The central thesis promoted by Dr Wyness is that Mr Tu’s concrete autistic thinking led him to believe that he had no alternative but to kill Mr Hawe-Wilson, even though he understood that killing him was wrong and that there were alternatives available that did not in fact involve killing him. In short, it is claimed that Mr Tu’s concrete thinking provided subjective moral justification for his offending.
[93] As far as I can tell from the authorities there is no such thing in our criminal law as self-defence based on insane moral justification without loss of understanding of the facts (e.g. due to psychosis).57 This is not surprising: without loss of understanding the jury is simply being invited to undertake an assessment of whether the defendant’s maladjusted moral assessment of known facts was subjectively available to him or her.
[94] The difference is also explained by Simester and Brookbanks in this way:58
What is normally required is that the accused acted “in a state of frenzy, uncontrolled emotion, or suspended reason”. The defence will fail if the evidence merely establishes an “absence of moral inhibition, restraint, or conscience” falling short of a state of suspended reason. Therefore if, because of a disease of the mind, D is unable to restrain himself from killing V because he is subject to an emotional impulse which he cannot control (a so-called “irresistible impulse”) but, nevertheless, understands the nature of his act and that it is morally wrong, he would not be able to take advantage of the insanity defence. Provided a person’s cognitive processes are functioning at a level sufficient to enable the accused to grasp the nature and wrongfulness of his or her act, the fact that his or her emotional and volitional capacities are abnormal will not detract from the judgment that he or she was legally sane.
57 After hearing argument I reserved leave to both parties to provide authority supporting the prospect of non-insane self defence. Counsel referred me to R v Wang (1989) 4 CRNZ 674 (CA) and R v Oye [2013] EWCA Crim 1725, [2014] 1 All ER 902. In both cases the Court highlighted that subjective assessment of threat was not a sufficient condition to raise self defence.
58 Simester, above n 45, at 351.
[95] It transpires that it is not necessary for me to resolve this aspect with finality at this juncture in the proceedings given the expert agreement as to the presence of psychosis. But if autism based insane self-defence (sans psychosis) is to be put to the jury, my current view is that maladjusted moral reasoning on known facts will not be sufficient to trigger the insanity defence.
Outcome
[96] On the evidence available to me:
(a) ASD is too broadly framed as a mental health classification to qualify
as a “disease of the mind” for the purpose of s 23;
(b)Generally, autism is not a form of “natural imbecility”, a disease or a “disease of the mind” for the purpose of s 23. But acute forms of autism may qualify. A case by case assessment is required;
(c) Mr Tu’s mental dysfunction, comprising a combination of autism (high functioning with “theory of mind” problems and some cognitive impairment) and schizo-affective disorder prima facie manifests in a disease of the mind – that is a natural, internally sourced malfunction in cognitive reasoning that impairs his capacity to make moral judgments.
(d)Whether a defence of autistic insane self-defence (sans psychosis) is available to Mr Tu will need to be examined. Maladjusted subjective moral reasoning on known facts does not appear to meet the basic requirement for incapacitation, namely absence of understanding.
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