R v Warrington
[2016] NZHC 614
•8 April 2016
ORDER PROHIBITING PUBLICATION OF THE NAME OF THE WITNESS/VICTIM/CONNECTED PERSON PURSUANT TO S 202
CRIMINAL PROCEDURE ACT 2011.
IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY
CRI-2015-012-001620 [2016] NZHC 614
THE QUEEN
v
MATTHEW ABRAHAM JAMES WARRINGTON
Hearing: 8 April 2016 Appearances:
R P Bates for the Crown
J A Westgate for the DefendantJudgment:
8 April 2016
ORAL JUDGMENT OF NATION J
[1] Mr Warrington faces one charge of murder and one charge of wounding with intent to cause grievous bodily harm.
[2] In a judgment of 3 February 2016, Justice Venning determined that the evidence before the Court was sufficient to establish that Mr Warrington carried out the physical acts that were the basis of his being charged with the murder of his mother and of his being charged with wounding with intent to cause grievous bodily harm to his mother’s partner. The Judge was also satisfied that the evidence was sufficient to establish that Mr Warrington intended to assault both the deceased and [the deceased’s partner] so that he caused the acts that formed the basis for each of
the offences with which he was charged.
R v WARRINGTON [2016] NZHC 614 [8 April 2016]
[3] Having made that determination, pursuant to s 9 of the Criminal Procedure (Mentally Impaired Persons) Act 2003 (the Act), Venning J, considered the evidence of two psychiatrists, Dr Barry-Walsh and Dr Fernando. Justice Venning found Mr Warrington mentally impaired in terms of s 14 and that he was unfit to stand trial.
[4] With those determinations having been made, s 24 of the Act requires me to consider all the circumstances of the case and the evidence of one or more health assessors as to whether the detention of Mr Warrington in a hospital as a special patient, under the Mental Health (Compulsory Assessment and Treatment) Act 1992, is necessary. In this instance, I have the reports of two psychiatrists, Dr Fernando and Dr Barry-Walsh. Dr Fernando has provided his report and earlier reports in response to an order from this Court. Dr Barry-Walsh has provided his assessment and reports at the request and on behalf of the defendant. Because the psychiatrists’ are in agreement, neither counsel required them to be available for cross examination. I have also not found it necessary to further question them in considering the issues which I must decide.
[5] I note there is no presumption under the Act that a person found unfit to stand trial will be detained as a special patient. I also noted from Dr Fernando’s report that Mr Warrington was particularly unhappy at the prospect of being made a “special patient”, he believed that he should not remain detained in a hospital or a secure service and that he could be put in a “community placement with carers going in to provide limited hours of support”.
[6] The standard of necessity sets a high threshold.
[7] In M v R, Justice Lang, for the Court of Appeal, stated:1
[7] In determining whether it is necessary to make an order under s
24(2), the Court undertakes a judicial assessment that is wider in some respects than the medical assessments made by health assessors. It must determine whether an order under s 24(2) is necessary in the interests of the public. The interests of the public in this context are twofold. First, there is the need to be protected from further offending by the offender. The longer term public interest, and one that the offender obviously shares, is to ensure that the offender is managed and treated in a manner best calculated to
achieve the ultimate goals of rehabilitation and reintegration into the community.
[8] The Court of Appeal adopted an earlier interpretation of the word “necessary” as “a fairly strong word falling between expedient or desirable on the one hand and essential on the other”.2
[9] If an order were not to be made for treatment for Mr Warrington to be held as a special patient, I would have to consider whether he should be dealt with in accordance with the options available under s 25. That provides for a number of less restrictive alternatives. As Justice Lang put it:
[10] … At the most restrictive end of the spectrum is a compulsory treatment order under s 25(1)(a). This will require the defendant to be treated as a patient under the Mental Health (Compulsory Assessment and Treatment) Act 1992. A compulsory treatment order may in practical terms result in a similar outcome to an order under s 24(2), because it may involve the defendant being detained as an inpatient. In that event the inpatient is detained in the hospital specified in the order. At the other end of the spectrum, the defendant may be released immediately.
[10] An order under s 24(1)(a) requires the involvement of the Ministry of Health in consultation with the Director of Mental Health. Under a special patient order, it is the Minister of Health who determines how long the order is to remain in force. Public safety and the defendant’s interests will be the paramount considerations for the Minister. Special patient status also ensures the Director will be integrally involved in decisions relating to the security and care of the patient. An institution must advise the Director whenever it is proposed that a special patient will be given leave or be transferred to another institution. As Justice Lang referred to in M v R, the status of special patient ensures that leave for the special patient will be granted by the Minister or with short-term leave by the Director only if certain conditions are met. There is not the same protective framework where a defendant is the subject of an inpatient order under s 25(1)(a) of the Criminal Procedure (Mentally Impaired Persons) Act. There, the clinician responsible for a patient, acting alone, may release the patient from compulsory status if the clinician considers the patient is fit to be released.
[11] I have considered the potential availability of orders under s 25(1)(a) in considering whether it is necessary for Mr Warrington to be detained as a special patient.
[12] Justice Venning’s judgment of 3 February 2016 summarises the events which led to Mr Warrington being charged with the murder of his mother and of wounding [the deceased’s partner] with intent to cause grievous bodily harm. I reproduce the relevant part of that judgment:
[4] … the defendant and deceased [Mr Warrington’s mother] had a strained and volatile relationship for many years, with the police being involved with the defendant from the age of 12 when he was spoken to for assaulting his mother.
[5] Approximately six weeks before the incident which led to the death of the deceased, and the alleged assault on [the deceased’s partner], the deceased and [the deceased’s partner] invited the defendant to stay with them for a three week period. That was on the understanding the defendant would move to Wellington at the end of that time. However, the defendant did not move to Wellington as planned and continued to live at the house which caused some friction between the parties at the house.
[6] At about 6.15 pm on Friday, 3 July 2015, the deceased entered the defendant’s bedroom and informed him he was no longer welcome at the address and that he was to move out by the following Wednesday. She returned to the lounge and informed the victim the defendant was angry about moving out and had not taken the news well. The deceased returned to the defendant’s bedroom soon afterwards but was physically pushed out of the bedroom back into the lounge area by the defendant. The defendant followed and grabbed the deceased by her clothing, pulling her to the ground where, while she lay prone, he began kicking and punching her about the head and upper body. While the deceased was still on the ground the defendant picked up a small table which he used to repeatedly strike the deceased’s head and body. When the victim [the deceased’s partner], who was also in the lounge, tried to intervene the defendant forcefully pushed him backwards causing him to fall and hit his back against a window ledge. Using the same table the defendant struck [the deceased’s partner] on the top of the head causing a deep laceration to the top of [the deceased’s partner’s] skull.
[7] The defendant then went to the kitchen and took a wooden handled carving knife from the kitchen drawer. Upon seeing the knife in the defendant’s hand [the deceased’s partner] left the lounge, barricaded himself in the hallway and called the police. This time the defendant turned to his mother, who was prone on the lounge floor, and stabbed and slashed her with the carving knife to her face, neck and torso. As a result of the attack the deceased succumbed to her injuries and died.
[8] [The deceased’s partner] was still in contact with the police on his cellphone, left the house and went to the front of the house where he was again confronted by the defendant. The defendant was holding a second table and threw this over the gate at the victim [the deceased’s partner], narrowly missing him. [The deceased’s partner] then went to his car which was parked in the driveway. While trying to close the door the defendant approached him, still holding the knife. [The deceased’s partner] grabbed the knife by its blade and sought to wrestle it from the defendant. After a brief struggle the defendant loosened his grip and [the deceased’s partner] was able to take the knife from him. Once the victim was locked in his car the defendant returned to the house.
[9] The police arrived a short time later. The defendant was found in his bedroom listening to music on his laptop. The defendant had significant injuries to his lower arms and after being taken into custody was admitted to hospital for two nights for treatment.
[10] [The deceased’s partner] was hospitalised overnight and sustained bruising to his left forearm and a deep laceration, approximately 50 mm long to the top of his head.
[11] The pathologist Dr Spark has confirmed that after conducting a post- mortem on the deceased she concluded that the cause of death was a combination of blunt and sharp force injuries to the head and neck.
[13] Relevant to the circumstances I must consider, I note also evidence that, shortly after these attacks, Mr Warrington had sent messages to an associate to the effect “I killed my mother LOL” and “should talk to me in jail”.
[14] Dr Anthony Fernando is a Consultant Forensic Psychiatrist with extensive experience in the United Kingdom and since 31 August 2015 in employment for the Southern District Health Board at Wakari Hospital, Dunedin. He has had experience in looking after mentally disordered offenders in conditions of medium security, low security and in the community. He has also had experience in assessing and managing individuals who are on the autistic spectrum, the particular mental impairment that Mr Warrington suffers from. Dr Fernando has been responsible for Mr Warrington’s care as Responsible Clinician since September 2015, has reviewed his own reports prepared for the Court in relation to Mr Warrington, the reports of Dr Barry-Walsh and the comprehensive mental and physical health records held by Southern District Health Board for Mr Warrington.
[15] Dr Fernando’s reports and evidence establish that Mr Warrington had a
history from an early age of being particularly aggressive to his mother, with an
incident in 2003, when he would have been 11 years of age, hitting and punching both his mother and a friend when attempts were made to lock away his bike as punishment for swearing and defiant behaviour. In July 2009, Mr Warrington’s mother had contacted emergency psychiatric services after Mr Warrington had pushed her against a wall and put his hands around her throat when she took his Playstation away.
[16] There is a history of Mr Warrington being aggressive (kicking, punching, biting and throwing objects), most notably against his mother from an early age. This history also includes aggressive conduct against other adults, including teachers and other children. Mr Warrington was also cruel to animals, particularly cats and dogs. He attended a number of schools from pre-school through primary to secondary school but his disruptive behaviour led to frequent changes of school and to his being expelled by a number of schools due to aggressive behaviour against staff and peers.
[17] Mr Warrington was referred to Child and Family Mental Health Services from an early age, when he was 3, due to his behaviour being “obstinate and defiant”. Since then, there have been numerous different psychological and psychiatric assessments with different medication being administered at various times.
[18] Dr Fernando noted that in 2011 Mr Warrington was deemed not to have a significant mental health disorder and it was not possible to access any form of counselling for him. It was in that context, when he was not in the protective environment of a hospital or under compulsory treatment, that the events of 3 July
2015 occurred.
[19] Following his arrest on these charges and the events of 3 July 2015, Mr
Warrington was transferred from prison to Ward 9A at Wakari Hospital on 23 July
2015 due to then, as it was put, “quite evidence significant mental health difficulties”. Dr Fernando said that early in this admission there was a concern whether Mr Warrington was experiencing psychotic symptoms, especially by way of “auditory hallucinations”.
[20] Dr Fernando then said:
Following careful study of Mr Warrington’s history and current presentation, it became quite evident that he was clearly on the Autism Spectrum. His lack of empathy was quite marked. Since Mr Warrington suffered from relatively high arousal levels exemplified by irritability and episodes of anxiety, I commenced him on an anxiolytic dose of Risperidone (which is an antipsychotic at higher doses). Mr Warrington’s high arousal levels lessened in response to the Risperidone. With the lessening of his anxiety and stabilisation of his mental state, there was much less evidence of any symptoms that could be interpreted as having psychotic flavour.
[21] Dr Fernando’s evidence and report has included the opinion:
49. Mr Warrington had significant difficulty labelling his own emotions and that of others.
…
50. Mr Warrington showed significant levels of egocentricity, concreteness and rigidity in his thinking and behaviour. His insight into his mental health concerns was limited and his insight into his risks was very poor.
…
53. With the gradual passage of time, Mr Warrington’s oppositional behaviour lessened and although he said he did not agree or see the point with the treatment team’s recommendations and attempts to guide him to adopt more pro-social behaviours, he has in the main being concordant with his multi-disciplinary treatment regime, geared towards achieving this.
…
55. Mr Warrington had ongoing difficulty in understanding others’ perspectives on his future care pathway. He was particularly unhappy with the prospect of being made a “Special Patient”. This was tied to his pervasive very poor understanding of his risks. He firmly believed that he should not remain detained in a hospital, least of all a secure service. He did not appreciate the fact that any serious act was committed by him and was adamant that the Judge could finally decide to “send him to a community placement with carers going in to provide limited hours of support”. He added that he did not need any support by carers, but would agree to short term input in the community, in line with the “Judge’s decision”. Mr Warrington also expressed significant anguish about being sentenced to serve a prison sentence and clearly communicated his inability to survive in a prison environment. Mr Warrington requested me to write down clearly in the Court report, his own perspective on how his care pathway should proceed, so that the Judge can be well informed. Although the clear disparities in Mr Warrington’s expectations of care pathway were pointed out to him, he remained adamant that he should be released with support to a community placement.
[22] Dr Fernando said that Mr Warrington had said that he had engaged in deliberate self-harm in the past and that he had frequently thought of killing himself but did not have the means to do so in hospital. More recently, Mr Warrington had denied self-harm/suicidal thoughts.
[23] Mr Warrington had also described “a longstanding preoccupation of killing people” and was worried that he was “a psychopath”. “He did not display a feature of fighting these morbid thoughts, instead thinking that it was very much a part of his make-up”. Dr Fernando referred to:
73. Mr Warrington’s rigid / concrete thinking style and marked lack of empathy as has been highlighted above. His inability to look at a situation from someone else’s perspective is quite noticeable.
[24] In his opinions and recommendations, Dr Fernando said:
75. It is very clear from Mr Warrington’s history and current presentation that he is on the Autistic Spectrum and has significant social and emotional disability related to this condition. In addition Mr Warrington displayed quite a concrete style of thinking when arriving at decisions and had a tendency to hold on to his version of events with conviction.
…
79. Due to Mr Warrington’s significant risks to himself and others, as a product of his abnormal state of mind, it is appropriate for Mr Warrington to be detained in a secure setting under the provisions of the Mental Health Act.
80. After evaluating Mr Warrington’s risk of violence using the actuarial risk assessment HCR-20 version 3, it is evident that he scores highly on presence and relevance on 7 out of 10 of the Historical risk items, all 5
Clinical items and all 5 Risk Management items. Therefore Mr
Warrington’s risk to others in particular can be considered to be
significantly high.
81. Due to the risks highlighted, my recommendation would be that Mr Matthew Warrington would benefit from being considered for Special Patient status under the Section 24 of the Criminal Procedure (Mentally Impaired Persons) Act 2003.
[25] Dr Justin Barry-Walsh is also an experienced and highly qualified Consultant Forensic Psychiatrist who has provided psychiatric reports on a regular basis to the Court since 1996.
[26] In an initial report he prepared for the Court on 13 August 2015, Dr Barry- Walsh referred to Mr Warrington telling him that, at the time of the killing, Mr Warrington could not control himself, of it being “like an instant action” and of having an impulse he could not control. The statements Mr Warrington was reported as making to Dr Barry-Walsh were consistent with him having little insight into the seriousness of what he had done or any real remorse for it. He told Dr Barry-Walsh that he did not believe the charges against him were serious after what his mother had done to him. Dr Barry-Walsh agreed with the diagnosis others have made as to Mr Warrington being on the autism spectrum.
[27] Dr Barry-Walsh has concluded:
Acknowledging it is ultimately the Court’s decision, nevertheless I find compelling grounds to consider it is both in Mr Warrington’s best interests and that of the public that he is made a special patient. He is mentally disordered within the meaning of the Mental Health Act. He has committed an act of serious violence, as a result of his disorder and continues despite treatment to be markedly disabled. He requires on-going secure in-patient care to manage his risks and allow for a carefully planned and monitored return to the community. In my view only special patient status provides a sufficient level of surety that this will occur. Thus it is my opinion Mr Warrington should be made a special patient subject to Section 24(2)(A) of the CP(MIP) Act.
[28] I have concluded it is necessary for Mr Warrington to be detained as a special patient under s 24, having regard to the following matters:
(a) firstly, the risk of very serious harm to members of the public and particularly those that he might be in contact with on a regular basis if he is not constrained by being detained as a special patient, the extent of that risk being exemplified by what he did to his mother and [the deceased’s partner] on 3 July 2015;
(b) secondly, the evidence exists that he could be violent in such a way without any prior warning and without there being a real or significant trigger for the extremely dangerous way that he might act;
(c) thirdly, his lack of insight into the mental problems from which he suffers that put him and others at risk;
(d) fourthly, his lack of appreciation of the seriousness of what he did on 3
July 2015;
(e) next, his lack of empathy for those who have been the victims of his violence and aggression in the past;
(f) next, the longstanding nature of the difficulties that he has faced and the history of the violent and aggressive way in which he has acted with others from an early age, the victims being not just his mother but the wider circle of people he came into contact with, including teachers and other pupils when at school;
(g) my assessment that Mr Warrington’s current mental impairment of an autistic spectrum disorder is serious and not likely to be readily, or in the short-term, remedied through medication or other treatment, at least in the short-term;
(h) next, the potential for an improvement in Mr Warrington’s mental health and a consequent reduction in the risk he poses to the public and himself, must be less because of what Dr Barry-Walsh has referred to as his “rigidity of thought and impaired capacity to understand social constraints”;
(i) next, Dr Fernando’s evidence that, in using the actuarial risk assessment of HCR-20 version 3, Mr Warrington’s risk to others in particular can be considered to be significantly high.
[29] I accordingly make an order, pursuant to s 24(1) and (2), that Mr Warrington be detained in a hospital as a special patient under the Mental Health (Compulsory Assessment and Treatment) Act 1992.
Name suppression
[30] I deal now with the issue of name suppression. Mr Warrington’s name has
been suppressed on an interim basis throughout these proceedings. On 3 February
2016, Justice Venning indicated that, for the reasons given by Dr Barry-Walsh, interim suppression of Mr Warrington’s name would remain in place, at least until the final disposition hearing but it could be reviewed at that time. On 13 August
2015, Dr Barry-Walsh was of the opinion that:
Whatever the underlying mental disorder, Mr Warrington is in a highly vulnerable and disturbed state with recent significant suicidal ideation. His history and presentation implies exaggerated sensitivity to the opinion of others and low self-esteem. I consider that loss of name suppression at this stage may have a substantially deleterious effect on Mr Warrington’s already fragile mental state. There is considerable risk it would intensify suicidal ideation and worsen his mental state delaying any potential recovery. I thus find good grounds from a psychiatric perspective to maintain name suppression.
[31] Dr Fernando’s report refers to the way Mr Warrington’s oppositional behaviour has lessened while he has been at Wakari Hospital. Those treating have agreed to his request that he come off psychotropic medications and this has happened without any significant detrimental effects on his mental health. Dr Fernando says there is also less evidence now of any symptoms that could be interpreted as having a psychotic flavour. Dr Fernando’s report referred to Mr Warrington stating that, while in hospital, he did not have a suitable method of killing himself by cutting or hanging and that he would not want to take an overdose. The report also said that “more recently Mr Warrington has denied significant self harm/suicide thoughts”.
[32] This morning I sought information from both counsel as to the particular views of the psychiatrists who were dealing with Mr Warrington with regard to this issue and particularly the potential risk of Mr Warrington doing significant harm to himself. Mr Bates had spoken to psychiatrists, other than Dr Fernando, who are currently concerned with caring for Mr Warrington. From what I was told, it appears that they agree the immediate short-term risk of similar sort of harm being done, as Dr Barry-Walsh had referred to, has reduced significantly but they were concerned that publication of Mr Warrington’s name could, in the long-term, make it more difficult for him to achieve the rehabilitation and the return to health and to be able to be in the community in the way that his treatment will be designed to achieve if it is possible. Mr Westgate told me that he had spoken to Dr Barry-Walsh and that, essentially, his view was consistent with that of which I have been advised by Mr
Bates. The concern now is not with immediate short-term risks but with the potential prejudice in the long-term to Mr Warrington’s treatment. I need to consider that information in dealing with the issue of whether there should be continuing suppression.
[33] Mr Warrington remains someone charged with the offences of murder and wounding with intent to cause grievous bodily harm.
[34] Pursuant to s 200 of the Criminal Procedure Act, the Court may make an order forbidding publication of Mr Warrington’s name only if satisfied (in the circumstances of this case) that publication would be likely to:
(a) cause extreme hardship to the person charged with the offence; or
(b) endanger the safety of any person.
[35] In considering whether or not to make an order forbidding publication of the identity of a defendant, the Courts have consistently emphasised a prima facie presumption in favour of openness in reporting.
[36] On the basis of the information provided to me by the Clinical Physician responsible for Mr Warrington’s care, I consider the risk of suicide is significantly less now than it was when Mr Warrington was first a patient at Wakari Hospital. There will now be the protection for him as well through his being a special patient at the hospital. In these circumstances, I do not consider there is a risk of “extreme hardship” to him that should override the presumption in favour of openness, particularly so regarding the seriousness of the charges which Mr Warrington faced and the significance of the events that led to those charges. There is no longer an order for the interim suppression of Mr Warrington’s name.
[37] I acknowledge that there is no need for [the deceased’s partner’s] name to be published. I certainly have regard to the hardship that he will have already suffered through being a victim in these proceedings. There is no need for that to be increased through publication of his name and I make a permanent order for the
suppression of his name. For that reason, I have deleted the references to that name in the transcript of this judgment, which I gave orally in Court.
Solicitors:
RPB Law, Dunedin
J A Westgate, Tina Williams Law, Dunedin.
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