R v Lipsey-McCarthy CA237/04 [2004] NZCA 364 (28 October 2004)

Last Updated: 25 April 2018

IN THE COURT OF APPEAL OF NEW ZEALAND

CA237/04

THE QUEEN

v

LOUISE LIPSEY-MCCARTHY

Hearing: 11 October 2004 Coram: Anderson P
Baragwanath J Gendall J

Appearances: R A B Barnsdale for Appellant
H D M Lawry for Crown Judgment: 28 October 2004

JUDGMENT OF THE COURT DELIVERED BY ANDERSON P

[1] The appellant was convicted on her trial before a District Court Judge (Burnett DCJ) and a jury on five counts, relating to three complainants, occurring at Hamilton on the same day, 9 May 2003. Whilst plainly mentally disordered she approached a 72 year old woman of frail stature and punched her in the face, knocking her unconscious to the ground. The victim suffered a splintered nose, badly bruised face, bruising and soreness down the side of her body as well as damage to an elbow. That incident founded a charge of injuring with intent to injure. The appellant then ran off, got into a taxi and was taken from the scene.

R V LIPSEY-MCCARTHY CA CA237/04 [28 October 2004]

[2] About an hour later the appellant saw two girls, aged 12 and 13 years, walking along the road and she walked in between them. She put an arm around the shoulders of each girl and walked them along the road in a manner that the girls obviously found threatening. One of these victims was carrying a bag and the appellant insisted that she open it so the appellant could check whether there were any cigarettes in it. The appellant removed a wallet, which she returned, and a cell phone, which she kept. The taking of the cell phone founded a charge of robbery.

[3] The appellant continued to walk the girls up the road, from time to time putting her arms on their shoulders and telling the girls not to go anywhere. The appellant then saw an approaching ambulance and ordered one of the girls to run in front of it, under the threat of violence if she did not. That girl, in fear of the appellant, walked on to the roadway and was struck by the ambulance. The other girl attempted to stop her friend but the appellant dragged her away by the hair. These incidents led to charges of kidnapping, assault, and endangering safety with a vehicle.

[4] The appellant was convicted on the five counts. She was sentenced to a total of three years imprisonment.

[5] At trial the essential issue was whether, on the balance of probabilities, the appellant was insane in terms of 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.

[6] Psychiatric evidence was called on behalf of the appellant. The first expert witness was Dr J J Skipworth, Deputy Director of Mental Health at the Ministry of Health in Wellington, a consultant psychiatrist and a specialist in the field of forensic psychiatry. He first saw the appellant on 11 August 2003, that is three months after the incidents, for about three hours. He saw her again for a short time immediately before giving evidence.

[7] The appellant told Dr Skipworth she had started smoking cannabis from the age of 12 and smoked regularly except during pregnancies. She had also tried LSD on approximately five occasions and about two weeks before the events in question she had started to experiment with pure methamphetamine, known colloquially as P. Her information to the doctor was that she smoked P on a daily basis and in the three days leading up to the incidents she had had no sleep and was smoking P heavily. On 9 May 2003 she had ingested a very large quantity of P, enough it would seem to represent a daily dosage for nine people. This led to a psychotic state involving delusions and paranoia, such as street signs communicating with her and feelings of being persecuted by people who wanted to kill her. Significantly, prior to bingeing on P, the appellant had not experienced a similar psychosis.

[8] The appellant was admitted to hospital exhibiting paranoia and experiencing hallucinations. She was treated with sedatives and anti-psychotic medication. After three days, there being no clear psychotic symptoms remaining and no clear signs of mental illness, she was discharged and remanded to Mt Eden Women’s Prison. About two and a half weeks later she was admitted to another psychiatric hospital for three days where she received low dosages of a sedating medication but still exhibited no psychotic symptoms. At the time of her discharge from that psychiatric hospital, her diagnosis remained, as it had since her first admission, one of methamphetamine induced psychotic disorder with delusions.

[9] Two weeks after Dr Skipworth’s first examination in August 2003 the appellant had a third admission to a psychiatric hospital with some psychotic
symptoms such as fear for her own safety and the safety of others, a belief that she was possessed by the devil and was infecting others. That condition had not been induced by methamphetamines but the appellant informed Dr Skipworth that she had started to smoke cannabis again shortly before that period of admission.

[10] Relevant to s 23(2)(b) of the Crimes Act is an admission made by the appellant to Dr Skipworth that when she saw the elderly lady she tried to restrain herself from lashing out but in the end could not control herself. She had run away from the scene immediately following the assault because she felt really bad for what she had done. She described feeling very guilty at that stage, as if she had done something really bad.

[11] Whether the appellant’s psychotic state on 9 May 2003 was a “disease of the mind”, or a transient mental disorder caused by methamphetamine abuse, was a crucial matter for the jury’s consideration. Dr Skipworth summarised his view in response to questions from the learned trial Judge, as indicated in the following extract from the transcript:

QUESTIONS FROM THE COURT

Doctor, I’ve got a question. You’ve talked about two factors affecting the events on the 9^th of May. There’s the internal factor and the external factor. Would you agree with that? ... Yes.

Okay, just so I understand it. Now if we were to put aside the external factor, namely the ingestion of methamphetamine, and assuming that the internal factor operates as you have said that in your opinion it does, was the level at which that disease, or internal factor as you called it, affecting her on the 9^th of May, mean in your opinion that she was legally insane on the 9^th of May? ... I’m uncomfortable asking – answering the ultimate issue question in that way because I think that it’s, um, in this particular case, ah, a matter of, um, a matter for the jury to decide.

Well, you’ve talked about the proportions of which the external factor may have influenced the internal factor. If you were to leave aside the external proportions, the external influence, do you have an opinion, or what is your opinion of the level of disability or disease that operated on the 9^th of May?

... I think that if Ms Lipsey-McCarthy had not taken any amphetamines, that she would not have been particularly unwell on the 9^th of May. However, the reason why she became so unwell, I think is in part because she’s vulnerable to developing a mental illness which has subsequently been much more clearly defined than was the case at the 9^th of May. In fact, the abuse of amphetamines may well have brought on a more serious mental illness than might otherwise have been the case had she never abuse amphetamines

or cannabis in the first place. But what happened on the 9^th of May, I think, is, can only be understood as a combination of a vulnerable person who had a pre-existing, who had some albeit fairly, um, milk symptoms of illness which were substantially exacerbated by the amphetamines.

So the level at which the disease affected her on the 9^th of May, from what you say, were mild symptoms? ... Those mild symptoms were made dramatically worse by the amphetamines. Lots of people take amphetamines. Very, very few have symptoms like she had. The reason why she had such severe symptoms is because she’s a very vulnerable person who has an underlying mental illness.

Right, well, my question was directed to try and understand the level at which the disease was affecting her on the 9^th of May in the absence of the ingestion of methamphetamines, and you’ve gone on to explain that.

[12] The defence called a further psychiatric expert, Dr K S Majeed, who also specialised in forensic psychiatry. He assessed the appellant in October 2003 with the benefit of the same clinical and police information that had been made available to Dr Skipworth. He also noted that three days prior to the period of offending the appellant had been using P heavily, with consequential paranoia, insomnia, acute anxiety and other typical symptoms of psychosis. He saw her at the Henry Bennett Centre, Waikato Hospital, where she had been diagnosed as suffering from schizophrenia. He referred to a possible relationship between the ingesting of P and the mental abnormality in the following terms:

Methamphetamine can cause a range of, ah, symptoms. It can affect the mood, it can cause anxiety, it can cause fear, it can cause paranoia, it can cause hallucinations, and it can lead to violence. It’s a drug that is well known that can lead to violence, it’s a dangerous drug. It’s quite, um, ah, potent and, ah, it is there. But in, in relation to the, to the symptoms as well at the material time, that she, there was, there was an abnormal state of mind. Whether that abnormalcy was caused by the methamphetamine or by something else, it was there. In her, in Ms McCarthy’s case because she had the episode again in, in September, that can lead us to the conclusion that either this lady had a schizophrenia and, ah, that during the month of May by taking methamphetamine it just triggered the symptoms, the symptoms were there under the surface, she is predisposed to schizophrenia, she was going to have schizophrenia, probably next year, the year after, in 10 years, 15 years, but the amphetamine, methamphetamine came and just brought it out to the surface. Ah, so in, in in my opinion the methamphetamine then was, ah, was a, a, a cause. It, it wasn’t, ah, the condition she was in, the condition that the methamphetamine led to, helped that it came to the surface, the symptoms were characterised of abnormal state of mind. There were delusions, hallucinations, no insight, ah, impaired judgment. There was an abnormal mental state, and that was by itself that led to behaviours and can lead to behaviours that it alters judgment and can lead to, ah, consequences. However because subsequently she had a schizophrenia and she was

diagnosed, and clearly led me to believe, yes, there was a condition there, this lady has a disease of the mind.

[13] Dr Majeed referred, later in his evidence, to “...the high possibility of the methamphetamine ... inducing the condition which she was predisposed to anyway.”


[14] The evidence of both the experts supported, to a greater extent in the case of Dr Majeed than Dr Skipworth, the probability that at the time of the bizarre offences the appellant was suffering from an inherent schizophrenia-type disorder, which became manifest because of the ingestion of a substantial overdose of methamphetamine. The jury could not rationally have avoided that view, although it is not, of course, determinative of the issue of insanity as legally defined. The jury would still have had to exercise its judgment, in the light of all the evidence, on the issue whether the obvious mental disorder should be characterised as a disease of the mind and if so, whether it was such as to have rendered the appellant incapable of knowing that her acts were morally wrong, having regard to the commonly accepted standards of right and wrong. In respect of that last mentioned qualification, the jury would have had to give such weight as it saw fit to the appellant’s statement to Dr Skipworth, months after the psychotic event, to the effect that she thought what she had done to the elderly victim was wrong.

[15] The concept of a disease of the mind is not a medical but a legal term, the explication of which has been the subject of innumerable decisions as a perusal of, for example, the commentary on s 23 Crimes Act in Adams on Criminal Law demonstrates. The concept does not include a transitory mental condition such as might be caused by a blow to the head or the effects of alcohol or other drugs. See, for example, R v Cottle [1958] NZPoliceLawRp 16; [1958] NZLR 999, 1011.

[16] Difficulties of evaluation of mental disorder, in terms of disease of the mind, arise where a mental state may be attributable both to an inherent psychiatric condition and external causes such as the influence of drugs. To come within the ambit of s 23 Crimes Act, the mental state in issue must, in any event, be such as to render a person incapable of understanding the nature and quality of the conduct or of knowing that it was morally wrong. Therefore, if on the balance of probabilities,
a person does not know, for example that the conduct is morally wrong having regard to the commonly accepted standards of right and wrong, the matter resolves, it would seem, into one of causation. The question will be, whether the person has been so rendered by a disease of the mind or for other reasons such as, for example, drugs or alcohol.

[17] In the present case, the psychiatric evidence provided a rational basis for a conclusion that, on the balance of probabilities, if the appellant did not know her conduct was morally wrong, then her disability in that respect was attributable to an underlying psychiatric condition which could be characterised as disease of the mind, rather than transient effects on the appellant’s mental processes of the methamphetamine she had taken. If this were not the case, the defence would not have been left for the jury’s consideration.

[18] One of the arguments advanced by counsel for the appellant was that the jury’s verdict was unreasonable and could not be supported having regard to the evidence. We cannot agree. The appellant’s actual behaviour and the psychiatric evidence, supported a possible conclusion of legal insanity but were not determinative of it. This is because the term “disease of the mind”, as we have mentioned, is not a medical expression but a legal concept, which embraces more than medical science. Also, the information supplied to Dr Skipworth as to why the appellant left the scene after attacking the elderly woman had to be considered and, if accepted as a reliable recollection by the appellant of her feelings at the time, would displace the probability of legal insanity.

[19] Counsel also criticised the Judge’s summing up in relation to the question whether the appellant had been rendered incapable of knowing that her acts were wrong. The Judge’s directions were:

Was the disorder to such an extent that she was incapable of knowing that what she did was morally wrong, having regard to a commonly accepted standard of right and wrong. In other words, a person may be capable of understanding the physical nature and consequence of what she is doing, but incapable of understanding that other people would regard it as wrong for her to do it. If she was incapable of understanding that, because of the disorder of rational thought, she should be acquitted. I emphasise that the test is whether the person was incapable of understanding those things, and incapable means, not able to do it at all. So, was she incapable of

understanding that other people would regard what she was doing was wrong for her to do? And when I say that, incapable means, not able to do it at all.

[20] The argument was that the direction did not take account of degrees of capability, but we think such argument is misconceived. It confuses the standard of probability required to establish the defence and the standard of incapability which is one of the elements of the defence. Incapability is an absolute, not a relative concept.

[21] A further criticism of the summing up was that the Judge had misdirected the jury on the implications of an external factor where the question of disease of the mind is under consideration. As counsel pointed out, there was no dispute as to whether schizophrenia was a disease of the mind and there was some evidence to support that diagnosis. The matter in issue between the Crown and the defence at trial was the level of schizophrenia and its causative relationship to any incapability of knowing what was wrong. We do not accept the criticism. Whilst it is the case that at one part in the summing up there was reference to the issue of the level of schizophrenia, as counsel had identified the issue, the Judge had shortly before that expressed the position in the following terms:

The issues here are, ... and, secondly, was it affecting her to such an extent that it rendered her incapable of knowing what she was doing was morally wrong. And if you find the accused has not proved either, or both of these, to the required standard, that is, more probable than not, you would find the accused guilty.

[22] In succinctly summarising the respective cases for the Crown and the defence, the Judge said:

Mr Barnsdale points you to the accused’s pattern of treatment, the type of hallucinations, her manner and behaviour on the day, and the medical opinions expressed by Doctors Skipworth and Majeed, and says Ms Lipsey- McCarthy was, on 9 May, suffering from a schizophrenic episode, caused by a disease of the mind, that prevented her from knowing what she was doing was morally wrong.

On the other hand, Mr Sturm, for the Crown, says Ms Lipsey-McCarthy did indeed appreciate the moral wrongfulness of what she was doing, and her actions resulted from the effects of the drugs she had taken, and not from any disease of the mind she may or not have been suffering from on 9 May.

[23] That clearly identifies causation as an issue for the jury and as the case had developed, with evidence of both drug ingestion and psychiatric disorder, the relationship of those two possible causes on the conduct of the appellant was the real focus of the case.

[24] There is, however, one aspect of the summing up that did not feature in counsel’s submissions but was raised in discussion between the bar and bench at the hearing of the appeal. This concerns the adequacy or otherwise of the Judge’s directions to the jury in relation to the available verdicts. The relevant directions are as follows:

The final point of general application is that your verdicts on the charges must be unanimous. That means that each one of you individually must be of the opinion the accused is either guilty, or not guilty, or not guilty on the account of insanity. When you, Mr Foreman, are about to deliver the jury’s verdict, the Registrar will ask you whether you have agreed upon your verdicts. That is because the verdicts on each charge must be unanimous. That does not mean that you have to be unanimous in your reasons for reaching the verdict. You are free to reach your conclusions by different paths. But whatever route you take, you must, in the end, all be in agreement that the accused is either guilty, or not guilty, or not guilty on the grounds of insanity.

...

If, having considered the elements of the charges, you come to the decision the Crown has not proved a charge or charges beyond reasonable doubt, you would find the accused not guilty. That would be the end of the case for that charge or charges. You would not need to go any further. If she is not guilty of the charge, the issue of insanity does not have to be considered in respect of that charge. If you reach the conclusion, about all of the charges, then that is your verdict on each charge, and the issue of insanity does not have to be considered at all. So, if you reach that conclusion about all of the charges, that the Crown has not proved them, and the accused is not guilty, then do not deal with the issue of insanity at all. You do not have to consider it at all.

If, however, you find that the Crown has proved the elements of any or all of the charges beyond reasonable doubt, you will then move on to consider the defence of insanity.

...

The issues here are, did she have a disease of the mind, and, secondly, was it affecting her to such an extent that it rendered her incapable of knowing what she was doing was morally wrong. And if you find the accused has not proved either, or both of these, to the required standard, that is, more probable than not, you would find the accused guilty.

[25] Whilst it is the case that the Judge indicated, as shown by an extract cited above, that the jury had to consider and come to a unanimous conclusion that the appellant was either guilty, or not guilty on account of insanity, her directions gave no indication that a verdict of not guilty by reason of insanity is qualitatively different from, and distinct from, a simple verdict of acquittal.

[26] It is the practice of High Court Judges, who encounter the defence of insanity perhaps more often than in the District Court, specifically to direct juries as to the form of verdict “not guilty on account of insanity” so that juries will not inadvertently return a simple verdict of “not guilty”. When the verdict is “not guilty” it is an established practise for the Court to enquire whether the jury does not mean “not guilty on account of insanity”.

[27] The two types of not guilty verdicts invoke, of course, quite different consequences. In one case the accused walks free from the dock. In the other, consideration has to be given to orders which may significantly constrain the accused’s freedom. The different forms of verdict also evidence that although in the case of insanity a person is not to be convicted, nevertheless that person did the acts in question.

[28] We would not go so far, as a divisional court, to suggest that a failure to give some indication to the jury of the legal consequences of a verdict of not guilty on account of insanity would amount to a misdirection. But we do think it desirable that a jury be directed as to the form of verdict in such cases, so that the qualitative difference between an acquittal, and a verdict of not guilty by reason of insanity, will be reinforced.

[29] Absent at least some emphasis on the distinction there may, in some cases, be a risk that a jury would opt for a verdict of guilty, with its expected custodial consequences, rather than contemplate the prospect of a mentally disordered and possibly dangerous person simply walking out of the dock into the street.

[30] In this case the Judge could properly have gone further than she did, and stipulated the actual form of the verdict apt for insanity, and indeed emphasised the
qualitative difference between a verdict of acquittal and a verdict of not guilty on account of insanity.

[31] But having regard to the way the case was developed, (there being no suggestion that the alleged conduct on the part of the appellant did not occur, and the essential issue being guilty or not guilty on account of insanity) the Judge’s directions, particularly those reproduced in para [24] of this judgment, were adequate. Given the evidential justification for the guilty verdict it would be wrong to assume that the risk we mention in para [30] existed in this case.

Result

[32] For the above reasons the appeal is dismissed.

Solicitors:

Crown Solicitors, Auckland