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Court of Appeal of New Zealand |
Last Updated: 23 October 2013
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IN THE COURT OF APPEAL OF NEW ZEALAND
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BETWEEN
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Appellant |
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AND
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Respondent |
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Hearing: |
30 September 2013 |
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Court: |
O'Regan P, Panckhurst and MacKenzie JJ |
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Counsel: |
M A Stevens for Appellant
M J Grills for Respondent |
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Judgment: |
JUDGMENT OF THE COURT
The appeal against conviction is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by O’Regan
P)
Introduction
[1] Mr Duval-Smith was convicted following a jury trial of one count of burglary, three counts of assault with a weapon and one count of intentional damage. The trial Judge, Judge Crosbie, sentenced him to imprisonment for two years and eight months.
[2] The appellant largely accepted the Crown version of the events that happened on the night on which the offending occurred. His defence at trial was insanity.
Issues
[3] The issues to be determined are framed by the two grounds of appeal, which are:
(a) that the trial Judge did not adequately direct the jury on the legal test for a verdict of not guilty on the grounds of insanity in terms of s 23(2)(b) of the Crimes Act 1961;
(b) that the trial Judge failed to give the jury an indication of the consequences of a verdict of not guilty by reason of insanity, and that this has led to a miscarriage of justice.
[4] The focus of the argument at the hearing of the appeal was on the first ground.
Factual background
[5] The events leading to the charges involve the appellant and two other men entering the house of the victim in the early hours of the morning and subjecting the victim to threats and assaults. The background to these events was that the appellant believed that the victim owed him $3,000 arising from events that had happened in 1985, more than 25 years before the date of the assault. The three men woke the victim and he answered the door to them. They then forced their way into his house and during the next one–two hours the victim was assaulted with a weapon (he was hit over the head and on the legs with a wooden club or stick by the appellant), assaulted with a knife and a bottle by others involved in the events, and was also made to kneel for long periods and forced to drink alcohol and had alcohol poured on him. His house was trashed in his presence.
[6] One of the three men pleaded guilty and was sentenced before the appellant’s trial. The appellant and the other co-accused were tried together.
[7] As mentioned earlier, the appellant’s defence at trial was that of insanity. He did, however, take issue with some of the facts alleged by the Crown, and in particular asserted that the victim had voluntarily allowed the offenders to enter his house and that the assaults were not of the severity alleged by the Crown.
Insanity defence
[8] Section 23(2) provides as follows:
(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.
[9] The appellant relied on s 23(2)(b).
Appellant’s mental health history
[10] The appellant has a history of bipolar affective disorder giving rise to manic and depressive episodes. The appellant’s evidence is that he first suffered from depression in 1979. He was diagnosed with bipolar disorder in 1984. Bipolar disorder is characterised by prolonged periods of depression, and prolonged periods of mania. During the offending the appellant was suffering from an elevated mood. The evidence of Dr du Fresne, the expert psychiatrist called by the defence at trial, was that during elevated mood periods a person:
... may appear euphoric or grandiose, believing they have special powers and purposes, or are exempt from some of the constraints of other people, but they may also appear irritable and more ready to use aggression.
[11] Following his diagnosis in 1984, the appellant was prescribed the mood stabilising drug lithium carbonate. The appellant only episodically took his medication. He suffered a relapse in 1985, but it appears that he was relatively well between 1985 and 1996, with his mood swings not being severe enough to lead to medical intervention. In 1996 the appellant suffered manic episode followed by a serious depression. After that episode the appellant was referred to Dr Wisely for treatment. The appellant was again prescribed lithium carbonate, and was treated as an outpatient by Dr Wisely from 1996 up to the time of offending.
[12] Two psychiatrists gave expert evidence as to the appellant’s state of mind at the time of the offending: Associate Professor Brinded, for the prosecution, and Dr du Fresne for the defence. The two psychiatrists presented an agreed statement of facts in relation to the appellant’s state of mind at the time of offending:
1. That the accused has bipolar disorder;
2. That his mood was elevated at the time;
[13] Also relevant to the offending is the appellant’s history with the victim. It appears that during a manic episode in 1985 the appellant impulsively purchased a BMW car and was convicted of dangerous driving. He gave the car to the victim to sell. The car was damaged while the victim was driving it, and it was consequently sold for much less than the appellant had paid for it. The appellant formed the view that the victim had agreed to pay him $3,000 in compensation.
[14] Over the following years the appellant continued to maintain that the victim owed him $3,000, although this was never paid and the victim disputed the debt. There were instances over the years when the appellant would publicly yell at the victim about the debt being unpaid. Four days prior to the offending, the appellant went to the victim’s home and asked for the $3,000, giving him seven days to pay the money.
[15] There was evidence at the trial that the appellant had no history of violence. His son and his former wife gave evidence that they had never seen the appellant being violent. His wife said she knew he abhorred violence.
[16] At trial, the appellant argued that at the time of the offending he considered that he was morally justified in his actions. He did not argue that he had a total loss of capacity to make moral judgments, but rather that he did not regard his actions toward the victim as morally wrong due to suffering from a manic episode.
Expert evidence on whether appellant incapable of knowing his acts morally wrong
[17] As noted, two expert witnesses gave evidence about whether, in their opinion, the appellant was incapable of understanding that his actions were morally wrong as the time of the offending.
[18] Dr du Fresne was of the opinion that the appellant was incapable of understanding at the time of his offending that his actions were morally wrong. She stated in her report:
It is my professional opinion that Mr Duval-Smith was impaired in his capacity to know at that time the moral quality of his actions. He has believed for many years that the alleged victim was in debt to him and continues to believe that, but at the time of the alleged offending he believed that it would be “good” and “heroic” to recover the money by threats and the use of intentional violence, whereas that is not his usual belief system.
[19] Dr du Fresne’s evidence was not that the appellant had lost the capacity to form moral judgments. Indeed, her evidence was that during manic episodes people will often make strong moral judgments. Rather, her evidence was that at the time of offending the appellant did not know that the actions that led to the charges against him were morally wrong.
[20] Associate Professor Brinded was of the opinion that the appellant was not insane in terms of s 23. Associate Professor Brinded stated in his report:
I understand that the Court’s interpretation of the legal test is whether or not the accused “knew what he was doing was morally wrong” or not.
Whilst Mr Duval-Smith’s mood was almost certainly elevated at the time of the alleged offending it is questionable whether it was to such a degree that he was not able to know that his actions were morally wrong. He appears to have been disinhibited (possibly also by marijuana and alcohol) to the point where he felt justified in his actions. However his actions were purposeful and arose in the context of a long standing conflict with the victim over a debt. It appears most likely that Mr Duval-Smith was in a hypomanic state as opposed to being in a full state of mania. Whilst he appears to have displayed elevated mood, an increased sense of entitlement and some grandiose thinking associated with sleep disturbance, the alterations in his mental state were not described as severe by the Court Liaison and Prison nursing staff who interviewed him immediately after the alleged offending, he has not required inpatient hospitalisation either immediately after the alleged offending or since and no psychotic phenomena are able to be discerned at the time of the alleged offending or since. Whilst Mr DuvalSmith was undoubtedly affected by the elevation in his mood this may also have been contributed to by his use of marijuana and alcohol. On reviewing the information available to me, I do not believe that Mr DuvalSmith’s mood, on the balance of probability was so elevated by virtue of “Disease of the Mind” that it could be said that he did not know that his actions were morally wrong. Indeed he expressed the view that (as observed by Dr Parker) some of the actions of his co-offenders were actions that he did not approve of at the time.
Consequently on the balance of probabilities I believe that whilst Mr Duval-Smith was suffering from elevation of mood as a result of his Bi-Polar illness at the time of the alleged offending, I am unable to conclude it to have been to such an extent that would meet the test for a successful defence of Insanity pursuant to Section 23 of the Crimes Act.
(Emphasis added).
The question trail and the Judge’s summing up
[21] The Judge provided the jury with a question trail dealing with the defence of insanity. The question trail stated that it was not in dispute that the appellant suffered from a disease of the mind, or that he understood the nature and quality of his actions. The question trail stated that the question for the jury on insanity was as follows:
The defence of insanity is also made out if it is established that the accused did not know that what he was doing was morally wrong, having regard to the commonly accepted standards of right and wrong. This is the issue for you relating to the defence of insanity in this case.
[22] It was common ground that this was a legally correct articulation of the issue. It was repeated and reinforced in the Judge’s summing up at [49].
[23] The Judge also directed the jury on the elements of insanity earlier in his summing up as follows:
[25] The defence of insanity is also made out if it is established that the accused was incapable of knowing what he did was morally wrong having regard to the commonly accepted standards of right and wrong. This element of the defence involves a somewhat less exacting test that might at first appear. It is satisfied if the accused shows that he was unable to think rationally with a moderate degree of sense and composure about the moral quality of the act, or of the reasons, that to ordinary people, make the act wrong. Now when you consider it, as I will point out in the question trail, the test for you is whether the defence has established, on the balance of probabilities, that Mr Duval-Smith, because of his acknowledged disease of the mind did not know that what he was doing was morally wrong.
[24] Counsel for the appellant, Mrs Stevens, also accepted that the direction given at the end of this paragraph was correct. We accept that the reference at the beginning of the paragraph to “incapable of knowing” and “unable to think rationally”, although consistent with the actual wording used in s 23, do not correctly state the legal test. But we think the clear direction at the end of the paragraph and in the question trail would have ensured the jury focused on the correct test.
[25] Later in his summing up, the Judge summarised the evidence of Dr du Fresne and Associate Professor Brinded. As much of the argument focused on this part of the Judge’s summing up, we will set out the directions in full. They were:
[118] Finally, in terms of the evidence, I just want to spend some time talking about the two experts. Obviously they are agreed that Mr DuvalSmith had a significant mental illness at the time. The view of Dr du Fresne is at the time of the offending Mr Duval-Smith had an elevated mood, possibly as a consequence of an inadequate level of medication. Cannabis and other drug use is unlikely to have led to a significant change in his behaviour. Dr du Fresne said that in his state of elevated mood it seems likely that he misjudged some of the seriousness of his behaviour and its likely physical and psychological effects. She considered that he was impaired in his capacity to know at that time the moral quality of his actions. Dr du Fresne considered that while he did, and now still does, believe that [the victim] was in debt to him, that at the time of his offending he believed that it would be good and heroic to recover money by violence whereas that was not his usual belief system.
[119] Dr du Fresne thought that at the time of this incident he was in a severe manic episode and she referred to the observations of others that I have just taken you through in terms of Dr Layton, Dr Wisely’s, his son and former partner. Now you will of course be interested in what is the evidence that Dr du Fresne relied on that at the time he did not know what he was doing was wrong. You will recall that Mrs Grills cross-examined Dr du Fresne on this. The doctor said that she was relying on Mr DuvalSmith’s account of his thoughts about what he was doing at the time “as opposed to his thoughts about what he did at that time now or at the time I saw him”. She went on to clarify that by saying, “I’m relying on his description of his sense of his moral view of what he was doing at the time of the alleged offending, that he said that he felt at the time what he was doing was good, heroic, right action and that once he had recovered from the manic episode by the time I saw him in January he thought his actions had been morally wrong.”
[120] Dr du Fresne also pointed to a strong sense in the video interview with the police of his sense of moral justification of what he had done at the time. That he had made the same statements to Dr Wisely. That he thought what he was doing at the time was morally right but not thereafter. The doctor also said that he made a clear distinction between his earlier verbal abuse and moving from that to one of entering the house and being physically aggressive. Dr du Fresne, of course, acknowledged that no one was in a position to examine his thought at the time and that he could be lying to her.
[121] Mrs Grills raised with Dr du Fresne the issue of Mr Duval-Smith saying that he thought what others were doing was wrong and whether this could be seen as suggesting that he knew his own actions were wrong and that the doctor was drawing a fine distinction. Mrs Grills referred her to Mr Duval-Smith’s evidence of making sure he damaged [the victim’s] property and not the owners. Dr du Fresne did not think that distinction was incompatible with her opinion that he was insane. She said that, “He did not know his actions were morally wrong because he decided they were not merely right but heroic, good, absolutely what they needed to do in that situation” and this, in terms of that question that was asked of her, seems to be the major point of distinction between Dr du Fresne’s opinion and Associate Professor Brinded.
[122] You will also recall portions of evidence and questioning about Mr Duval-Smith being disinhibited at the time as evidenced by this police video, and to this Dr du Fresne that if his behaviour during the interview was representative of his behaviour during the offence, then given the timeframe there may have been a connection. However, the doctor said that, in addition to the disinhibiting effect of the illness, there was a further step in which he came to believe that the injustice he thought he had suffered was such that his own behaviour to the victim was right and good. I questioned the doctor about this. Dr du Fresne confirmed that her position was that the impairment and Mr Duval–Smith’s capacity was such that his sense of righteousness and heroism was so elevated that he could not come to any other view. She disagreed with Associate Professor Brinded and Dr Parker’s view of the relevance to be attached to his view of the use of the bottle and the property damaged as pointing to the ability to make a distinction.
[123] Finally, in terms of my summary of her evidence and of her assessment of the difference between her view and that of Professor Brinded, the doctor said, “I think that the distinction is between an elevation of the sense of righteousness to a level at which only one line of reasoning can be pursued as against issues of disinhibition and lack of control.”
[124] Now looking at Associate Professor Brinded’s evidence and opinion, you will recall that in closing Mrs Stevens suggested that the Professor had applied the wrong legal test. I have told you what the legal test is and that is the test that is contained in the question that you have to ask yourself. But in my view both experts applied the same legal test but they came to different conclusions. They did so because of their individual assessment of the severity of the condition and associated factors. Professor Brinded’s view was that, while agreeing that Mr Duval-Smith’s mood was certainly elevated at the time of the offending, it is questionable whether it was to such a degree that he was not able to know that his actions were morally wrong. His view is that Mr Duval-Smith appeared disinhibited, possibly by cannabis and alcohol, to the point where he felt justified in his actions. His view was that those actions were purposeful and arose in the context of a longstanding dispute. It was most likely that he was in a hypomanic state as opposed to a full state of mania. He pointed to the observations of Court forensic liaison staff and prison nursing staff as not indicating severe symptoms and you will recall Dr du Fresne considering that this might have been because of a transient decrease in symptoms. The Professor said that he did not believe, on a balance of probabilities, that his mood was so elevated by virtue of a disease of the mind that he did not know his actions were morally wrong.
[125] Now an interesting part of Professor Brinded’s evidence was where he described what it is about a psychiatrist training that allows them to assess whether someone can make moral decisions. He agreed with Dr du Fresne that it is difficult because usually they are trying to look backwards at someone’s mental state to reconstruct it. Where psychiatric training assists is in the assessment, first, of whether a mental disorder exists, and in this case there is no dispute that it does. Second, if it does exist, how severe was it at the time of the alleged offending? How seriously affected was the person? That is key, in my view, to describe the difference between the two psychiatrists. Their assessment of the degree of severity in each case. Professor Brinded acknowledged that insanity is a legal concept not a medical one. For a successful defence in his experience to be established, has been that a person has to be severely affected by mental illness to the point where they have lost touch with reality. In other words they are unable to tell what is real from what is not. The level of illness is really the key. He said that what psychiatrists look for is evidence of a state of mind which could be so extreme that the normal ability to make moral judgments is absent. That is where the severity of the illness comes into play. That the severity of the illness is such that a person is so severely unwell that they just cannot make a moral judgment about what they are doing. He said that he looked for evidence of psychosis and did not see evidence of that at the time of the offending. He also based that on listening to Mr Duval-Smith’s evidence to you.
[126] Now you may wish to go back to see what the experts said at various portions and I have cautioned you of the need to do that in a balanced way should you wish to do so. But I have highlighted, the essential difference is the two opinions on the degree of the state Mr Duval-Smith was in. My assessment is that both used the same legal test, which is whether the defence has established on a balance of probabilities that Mr Duval-Smith, because of his disease of the mind, did not know what he was doing was morally wrong? ...
(Emphasis added).
The law
[26] There was no dispute about the law. Although s 23 uses the phrase “incapable ... of knowing”, a number of decisions of this Court have made it clear that the defence needs only to prove that the accused person has a disease of the mind that is such that he or she did not, in fact, know that the act or omission was morally wrong. It is not necessary to prove incapacity to have such knowledge. This has been confirmed most recently in R v Dixon in which this Court said, referring back to an earlier decision of this Court in R v MacMillan:[1]
We have no doubt that MacMillan represents the law in New Zealand. We note that it has subsequently been followed by this Court in [R v Smith[2] and R v Rotana[3]]. What it makes clear is that the question under subs (2)(b) is simply: “Did the accused, because of the disease of his mind, not know that what he was doing was morally wrong?” The focus is on the accused’s state of mind and whether he appreciated that what he was doing was wrong.
[27] In R v Dixon, the majority said:[4]
What is to be avoided is any suggestion that, under this limb of the insanity defence, the jurors’ task is to perform a neurological or psychiatric assessment of the accused’s brain or its workings, with a view to establishing its capacity.
[28] As mentioned earlier, Mrs Stevens accepted that the Judge’s question trail was correct and that his directions at the end of [25] and in [49] were also correct. She said, however, that this was undone in [125] of the summing up, where the Judge had summarised the evidence given by Associate Professor Brinded. She relied in particular on the part of that paragraph that we have highlighted. In essence, her case was that Associate Professor Brinded had applied the wrong legal test in the evidence he gave at the trial, in contrast to the defence expert, Dr du Fresne.
[29] Mrs Stevens supported her argument that Associate Professor Brinded had applied the wrong test by reference to the answers he gave in cross-examination. She relied in particular on the following exchanges:
- And the question here, the second matter that you consider when trying to make a determination of a person who knew what they were doing was or wasn’t morally wrong, is to make an assessment of the severity, as you’ve said of the illness?
- Yes, I guess that’s because it is arguably such a difficult determination to make that the ultimately for somebody not to know they’re doing is morally wrong is an extreme state. Most of us never reach that state. And so what we look for is evidence of a state of mind which would be so extreme that the normal ability to make moral judgements is absent and so that is where the severity of the illness comes into play. That the severity of illness is such that a person like the example I gave is so severely unwell that they just cannot make a moral judgement about what they’re doing.
...
...
[30] Mrs Stevens said these exchanges illustrated that Associate Professor Brinded’s approach focused on capacity to make moral judgments rather than whether the appellant did not, in fact, know that the actions constituting the offences were morally wrong. She also argued that he had wrongly eliminated the possibility that the appellant had not known the actions constituting the offences were morally wrong even though he did make moral judgments about other aspects of the events that occurred on the night of the offending.
[31] She argued that the Judge’s summary of Associate Professor Brinded’s evidence implied the Judge’s approval of that evidence, and this would have left the jury with the understanding that they needed to find a serious mental illness that had the effect of rendering the appellant incapable of making any form of moral judgment at all. She said this wrongly focused on capacity (contrary to R v Dixon) and did not limit the analysis to the question of whether the accused knew that his acts constituting the offences were morally wrong.
[32] For the Crown, Mrs Grills said the key difference between the experts was in respect of the level of severity of mental illness required to lead to a person not knowing the moral quality of their acts. She argued that this was a difference of opinion between experts, both of whom were focused on the correct legal test. She argued that Associate Professor Brinded’s evidence was addressed to the correct test and that the Judge’s description of the evidence of the experts and the differences between them was correct.
[33] We agree with Mrs Grills. In contrast to Dr du Fresne, Associate Professor Brinded expressed the view that the impact of the disease of the mind on the accused person must be severe to provide a foundation for a professional opinion the person did not know the moral quality of their acts. But that was his professional opinion and we do not consider there is any proper basis for the Court to second guess it. We do not believe that Mrs Stevens’ criticism that Associate Professor Brinded did not apply the correct legal test can be sustained in the face of the clear words at the conclusion of his report, which we have highlighted above.[5]
[34] Nor do we accept that the Judge’s summary of Associate Professor Brinded’s evidence would have led the jury to stray away from the legal test that he had correctly set out for them not only in his oral summing up but also in the question trail. We have set out the Judge’s comments at length because we think it is important to consider what he said at [125] of the summing up in context. He was careful to explain the positions taken by both experts, before attempting to explain their different approaches. In our view, he did that fairly.
[35] We are not satisfied that any error in the summing up has been established. This ground of appeal therefore fails.
Consequences of insanity verdict
[36] Mrs Stevens argued that the Judge ought to have set out for the jury the consequences of a finding of not guilty on the ground of insanity. She said the Judge’s failure to do this should be treated as a failure to direct the jury properly.
[37] Mrs Stevens accepted, as she had to, that there was no authority that omitting to give the jury an indication of the consequences of a verdict of not guilty on the ground of insanity is a misdirection. The opposite is, in fact, the case.
[38] Mrs Stevens relied on the decision of this Court in R v Lipsey-McCarthy that, in some cases, absent some emphasis on the distinction between an acquittal and a verdict of not guilty on the ground of insanity, there could be a risk that a jury would opt for a verdict of guilty rather than contemplate the prospect that a possibly dangerous offender could walk out of the dock into the street.[6]
[39] We see no error in this case. The authorities are clear that there is no obligation to give any direction about the consequences of a verdict of not guilty on ground of insanity, and the matter is left to the good sense of trial judges. In the present case, where the defence case was that the episode of insanity was transitory, it was far from clear what the consequences of a verdict of not guilty on the ground of insanity would have been, and a direction by the Judge may not have been helpful to the defence. In any event, the Judge did not have an obligation to give the direction and was not asked to do so at trial. He did not make an error. This ground of appeal also fails.
Result
[40] As both grounds of appeal have failed, the appeal is dismissed.
Solicitors:
Crown Law
Office, Wellington, for Respondent
[1] R v Dixon [2007] NZCA 398, [2008] 2 NZLR 617, referring to R v MacMillan [1966] NZLR 616 (CA).
[2] R v Smith (1995) 12 CRNZ 616 (CA).
[3] R v Rotana (1995) 12 CRNZ 650 (CA).
[4] At [32].
[5] At [20].
[6] R v Lipsey-McCarthy CA237/04, 28 October 2004. See also R v Lorimer [1966] NZLR 985 (CA) at 988 and R v Rotana, above n 3 at 655–656.
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