R v Black [2017] NZDC 24508 (27 October 2017)

Last Updated: 21 June 2018

EDITORIAL NOTE: CHANGES MADE TO THIS JUDGMENT APPEAR IN [SQUARE BRACKETS].

IN THE DISTRICT COURT AT ROTORUA

CRI-2016-063-004258 [2017] NZDC 24508

THE QUEEN

v

_{[SCOTT BLACK]}

Hearing:	27 October 2017
Appearances:	A Gordon for the Crown L Te Kani for the Defendant
Judgment:	27 October 2017

_{ORAL JUDGMENT OF JUDGE P W COOPER}

[1] In this case, the defendant is charged with the abduction of a child, an offence pursuant to s 210 Crimes Act 1961. The facts of the case and the defendant’s actions in abducting the child are not in dispute. It is accepted that he did abduct the child and the only issue in this case is whether the defendant was insane at the time of the commission of that crime.

[2] The facts of the case that are accepted can be summarised as follows. At the time of the offending, the defendant was 17 years of age. On the evening of [date deleted] December 2016, the defendant was at a party in the [location deleted] area. He was drinking with friends. He began fighting with them and was asked to leave the address at about 11.00 pm. Between 11.00 pm and 2.00 am the next morning, the defendant was walking around the area going up and down the driveway to addresses

_{without authority. He went into the complainant’s property in the early hours of the}

R v [SCOTT BLACK] [2017] NZDC 24508 [27 October 2017]

morning and broke into the house by lifting the window latch with a piece of nylon. Once inside the house, he walked through the hallway, turned on a light and entered a bedroom. He removed [the baby – name deleted] who was aged 18 months, from his cot. The defendant then walked back to his friend’s house, taking the baby with him. On route, he removed the baby’s nappy and discarded it on a walking track.

[3] At his friend’s house, he lay the baby down on a bed and he himself fell asleep. The next morning the defendant was asked by the occupants of the house whose baby it was. He said to one person the baby was his nephew and to another person that he had no idea whose the baby was. At about 8.00 am that morning, the police received information that the defendant was at an address with a baby not known to the occupants. The police went to the address and located the baby who was being looked after by the defendant’s [relative].

[4] When spoken to by the police subsequently, the defendant said initially that he had been out with friends the night before and had found the baby lying near a rock along the walkway. He said that he took the baby to his friend’s house and lay him on the bed and fell asleep. He said he never thought to call the police at the time. The defendant also said to the police that he was drunk and blacked out and that he could remember leaving his friend’s house and returning with the baby but he could not remember getting the baby. He stated that it was probably him who took the baby. He also made a comment that he wants a baby so that he could feel settled and normal and that without a baby or a girlfriend, he feels “a deep dark death”.

[5] The Court has received reports from three psychiatrists, Dr Catherine Krasnik, Dr Justin Barry-Walsh and Dr Shailesh Kumar. Their reports have been accepted as evidence in the case by consent. Dr Barry-Walsh and Dr Kumar appeared in Court to give evidence and speak to their reports. Dr Barry-Walsh’s report draws significantly on the report of Dr Catherine Krasnik and her clinical findings. All three experts referred to information gathered from other sources and it is accepted that the information gathered from those other sources is properly evidence in the case.

[6] Insofar as the defence of insanity is concerned, s 23 Crimes Act 1961 provides:

“(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.”

[7] Section 23(3) also provides that:

“Insanity before or after the time that 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.”

[8] The first question then is, was the defendant suffering from a disease of the mind at the time the offence was committed? There is little dispute about that, but it is appropriate that I refer to the evidence of the three experts in relation to it.

[9] Dr Kumar, in his report, having summarised his assessment and inquiries, makes the following comments at page 10:

“Mr [Black] presents with [medical details deleted] His symptoms cannot be attributed to the direct physiological effects of a substance or a general medical condition. His psychotic symptoms have persisted even when he has not had access to alcohol or drugs and he has received consistent supervised psychiatric treatment. It is therefore my considered opinion Mr [Black] fulfils the diagnostic criteria for Schizoaffective Disorder as outlined in DSM IV TR.

In addition, Mr [Black] continued to use large quantities of alcohol and multiple psychoactive substances despite being aware of their harmful effects. He has not only organised his life around procuring and maintaining his substance abuse but has also committed crime in order to support them. Several attempts to engage Mr [Black] in to drug and alcohol counselling have been unsuccessful. He therefore fulfils the diagnostic criteria for Polysubstance Dependence and Alcohol Abuse.”

[10] So in summary, Dr Kumar says that Mr [Black] presents with an abnormal state of mind characterised by delusions and hallucinations of continuous nature and such severity that he poses a serious risk to the safety of others.

[11] In relation to the question of disease of the mind, Dr Krasnik, in her report, makes the following comments after comprehensively summarising her clinical findings and the information that she has gathered. She says at page 18:

“Mr [Black] continues to present with attenuated symptoms of psychosis, an abnormal state of mind characterised by delusions, and disorder of perception. He has also presented with a disorder of mood. Though treated, his thought disorder can become exacerbated with increased stress. As a consequence of his abnormal state of mind, Mr [Black]’s behaviour can become unpredictable and erratic. There is a documented history of [details deleted]. His presentation is consistent with Schizoaffective Disorder, bipolar type. As such, in my opinion that he is currently mentally disordered as defined by section 2 of the Mental Health (Compulsory Assessment and Treatment) Act

1992.”

[12] Dr Barry-Walsh, in his report, agrees with Dr Krasnik’s findings. He says this:

“Mr [Black] suffers from a severe psychotic illness described by Dr Krasnik as schizo-affective Disorder. This illness emerged in the context of polysubstance abuse and conduct disturbance. More recently Mr [Black] has developed a more complete and distinct psychotic illness with [details deleted]. This illness persisted despite abstinence from substances and had required a number of months of treatment with antipsychotic medication to resolve. It therefore cannot be solely attributed to substance abuse.

There is abundant evidence Mr [Black] was mentally ill at the time of the alleged offending. There are accounts from family and friends of behaviour consistent with psychotic illness prior to the alleged offending. He was found to be seriously mentally ill when assessed in prison, was admitted to [medical centre details deleted] and when I assessed him on [date deleted] January I

found ongoing evidence of illness. From the report of Dr Krasnik during interview with police and discussions with police following his arrest he

exhibited signs of mental illness. Additionally, from his account Mr [Black]

was heavily intoxicated with alcohol which probably provides a reasonable explanation for his difficulty in recalling his actions at the time.”

[13] So it is clear from the evidence of the three expert witnesses that the defendant was both suffering from a disease of the mind and has long term substance abuse issues. The question is whether, when the defendant abducted the baby, the disease of the mind, which he clearly demonstrates, was such as to render him incapable of knowing that the act or omission, in other words, the abduction of the baby, was morally wrong, having regard to the commonly accepted standards of right and wrong. And again, turning to the evidence of the experts in relation to this, we now have a difference in opinion.

[14] Dr Kumar, on the one hand, concludes:

“That on the balance of probabilities, the defendant was probably not insane and does not have the defence of insanity available to him.”

[15] Dr Krasnik and, perhaps more definitively, Dr Barry-Walsh conclude:

“That the defendant was insane at the time of the offence.”

[16] I need to also mention that Dr Kumar had set out in his report, which I will come to shortly, just how difficult this assessment is in this particular case. Dr Kumar says in his report at page 11, headed under ‘Factors in favour of insanity as defence for Mr [Black]:

“Mr [Black] presents with a diagnosis of Schizoaffective Disorder which is usually accepted by New Zealand Courts as ‘disease of the mind’. There is ample evidence, from Mr [Black]’s self-report and from the collateral information available from multiple sources, that he was experiencing [details deleted]. These symptoms have persisted even after his incarceration when he would not have had access to drugs and he has received consistent psychiatric treatment. The apparent nonsensical nature of his offending from which he had no secondary gain does suggest Mr [Black]’s ability to understand ‘the moral wrongfulness’ of his actions could have been compromised. He does acknowledge having broken into other people’s homes on multiple occasions when he stole items of material value. In contrast, on the index occasion, he stole a baby from which he did not stand to gain in any manner. Such bizarre and unexplainable action around the time when he was displaying active signs and symptoms of ‘disease of the mind’ does raise the possibility of a defence of not guilty by reason of insanity being available to Mr [Black] with ‘regard to the commonly accepted norms of right and wrong.’”

[17] Having said that, Dr Kumar went on to outline factors against insanity as a defence for Mr [Black]. He said:

“There are, however, other factors that would argue against the possibility of insanity as a defence being available to Mr [Black]. He reports drinking large quantities of spirits over a brief period, possibly on an empty stomach while also smoking cannabis and synthetic cannabis. Unfortunately, no contemporaneous laboratory results are available to indicate whether

Mr [Black] had indeed smoked cannabis at the time when he was drinking and collateral information from his associates appears inconsistent. His ability to recall his actions at the material time makes it very difficult to draw a nexus between his ‘disease of the mind’ and his ability to ‘understand the nature and quality of his actions’ or their ‘moral wrongfulness’. Such absent nexus would argue against insanity and is explored further.

Mr [Black]’s history suggests he was heavily intoxicated at the material time which may explain his inability to recall his actions. Rapid consumption of high concentration alcohol on an empty stomach, especially in young people, with concurrent use of drugs such as cannabis, increases the risk of experiencing

‘black out’.

Alcoholic blackout is a form of memory impairment (anterograde amnesia) that occurs during a period of heavy drinking .... One’s ability to recall details of very recent events such as journey to hospital, or last meal may be impaired but usually there is no skill deficit .... Consumption of large amounts of alcohol may induce what is described as dissociative state. Dissociation is defined as a disruption of the normally integrated functions of consciousness, memory, identity and motor behaviour in a state of clear consciousness. Therefore, we find that during the blackout the person is awake and conscious, may be engaged in activity or conversation and at least to external observers appear to be perfectly orientated. Two types of blackout have been ... En bloc blackout: Individuals cannot remember any of the events that took place while they were under the influence of alcohol and even with cues. Fragmentary blackout: These are episodes of impaired memory for some events or details during a session of drinking.”

[18] Dr Kumar says:

“It is my opinion, on the balance of probability, that Mr [Black] was not insane (or does not have a defence of insanity) at the material time of the alleged offending. His report of amnesia relating to the index alleged offending is consistent with Alcoholic Blackout and not with insanity. Intoxication is usually not accepted by New Zealand Courts as ‘disease of the mind’ as the person consuming alcohol or drugs is expected to have made the choice of using alcohol or drugs. External impairment of a person’s ability to understand the nature and quality of their actions or to understand the moral wrongfulness of their actions falls short of the definition for ‘disease of the mind.’”

[19] Just pausing there, I observe that Dr Kumar is correct of course when he says that alcohol by itself, intoxication, is not a defence. The question in this case really comes down to I think the impact of the alcohol on the defendant’s underlying mental illness, something which I will refer to more later.

[20] In her report on the issue of insanity, Dr Krasnik says this at page 18:

“Having regard to [the definition of insanity], it is my opinion that Mr [Black] is very likely to have a defence of insanity available to him. This opinion is based on Mr [Black]’s psychiatric history, collateral information provided by [family members] and recent psychiatric evaluations just after the index offence, the DVD recordings at the time of the index offence and further comments made to Constable Joshua Tapsell as provided on 13 December

2016.

Mr [Black]’s own description of his state of mind on the day of the alleged offending appears to suggest he likely was intoxicated and psychotic. He stated repeatedly and consistently that he was ‘not in his right mind’. He also stated that a reason that he may not recall what happened is that he may have been so intoxicated as to have ‘blacked out’. Over the course of his admission, he has given different explanations in this regard:

a. That he has been set up

b. That he did not take the baby; the baby came to him

c. That he may have been under someone else’s control

4. That he believed the baby was his nephew and he was looking after it.
   

Collateral reports and information from his family indicate [details deleted]in the weeks leading up to the index offence. Mental health assessments around the time of the index offence confirm that Mr [Black] presented with [details deleted]. They also revealed that he did not have insight into his illness at the time and also he had no insight into the potential for alcohol and cannabis to exacerbate his underlying psychotic disorder. In fact, his view at the time was that cannabis helped him to maintain his special powers and his ability to communicate with the Gods.

Retrospectively, Mr [Black] appears to have some insight and knowledge that his actions may be punishable by the law. However, at the time of the offence he appears to have been so thought-disordered and disorganised and/or to have been operating under the influence of a delusion, as to truly not appreciate his circumstances or that he had engaged in any wrongdoing. Aspects of the history that support this include that he appeared perplexed when he realised that he had a baby in his possession the following morning. Throughout his statement to the Constable he was contrite and genuinely appeared confused, distressed and remorseful. He did not attempt to hide the offence. He was forthcoming with information. He turned himself in and cooperated with police, believing he had not done anything wrong. At one point, he indicated that he believed

that he had been helping the baby or that he thought that he may have been charged with the responsibility of looking after his nephew. In addition, Mr

[Black]’s statement to Constable Joshua Tapsell after the DVD recording

indicates that Mr [Black] may have been labouring under a delusion that he

‘needed to get ‘a special person’s blood’ to open the portals to free the Gods’.

In light of the above, Mr [Black]’s admission to the Constable that he lied about having found the baby on a pathway, by a rock, does not appear in this instance to be an example of malingering. Rather it more likely represented Mr [Black]’s attempt to make sense of the circumstances after the fact. Similarly, his differing and inconsistent explanations of why he may have had the baby in his possession are more likely representative of the severity of his thought disorder and disorganisation at the time ....”

[21] Dr Barry-Walsh in relation to this question of insanity, first of all at page 4 of his report in describing his assessment on 4 January 2017, says:

“... I found convincing evidence of persisting serious mental illness in

Mr [Black]. I described him as fatuous with mild religious euphoria and noted he was disorganised in his language. He was describing a number of psychotic

experiences including that he communicated with God, that he could predict the future and that God answered him through television or chants. He had anticipated the flight that he was on was going to have a mechanical problem and probably crash. He spoke to me briefly around the offending suggesting either that he wasn’t in his right mind or that someone else had committed the offending added noting it was possible someone else had been in control of his body.”

[22] Dr Barry-Walsh went on to say:

“In my opinion Mr [Black] would have a defence of insanity. As I note there are limitations in my opinion which is further limited by Mr [Black]’s inability to give any account of his motivations or thoughts at the time of the alleged offending. However, I am satisfied that he was suffering from a disease of the mind at the time. Further this illness was of such severity that he was disorganised in his thinking and had a number of delusional beliefs with supporting experiences including hallucinations. As a result of this it seems unlikely that he would have been able to reason as to the moral wrongfulness of his actions. In addition when one considers the nature of the offending which appears to be without motivation and bizarre in manner the most economical explanation was that it was as a result of his mental illness. Undoubtedly, his consumption of alcohol contributed to his actions at the time but in my view on balance he would have a defence of insanity as he was unable to reason at the time of the moral wrongfulness of his actions.”

[23] The determination of the question of the insanity of the defendant is a judicial one. That judicial determination is informed by the expert evidence that has been presented to the Court. Having considered all of that evidence, I have come to the conclusion that at the time of the offending, the defendant was labouring under a disease of the mind as such as to render him incapable of knowing that the act or omission was morally wrong, having regard to the commonly accepted standards of right and wrong.

[24] The assessment in this case is complicated by two factors; the degree of intoxication of the defendant and, as a result of that degree of intoxication, his inability to properly recall the events in question. But having regard to the clear demonstration of his mental illness prior to the offending and the clear symptoms of serious mental illness after the offending, it is obvious that he was suffering under that mental illness at the time of the offending. The question is, was that mental illness such as to impact on his ability to recognise that what he was doing was morally wrong?

[25] Looking at the nature of the delusions and behaviour that he was exhibiting prior to the offending and afterwards, I am of the view that at the time of the offending, he was not in a position to appreciate the moral wrongfulness of what he was doing.

[26] I accept Dr Kumar’s comment that the delusions that he exhibited prior to the offending were not such as to be regarded as completely unusual, but it is also recognised that the consumption of alcohol and consumption of drugs can significantly exacerbate underlying mental illness and I am of the view in this case that the defendant’s mental illness during the time of the actual offence itself had been significantly exacerbated by the alcohol he had consumed such as to render him unable to appreciate the moral wrongfulness of his actions. It is not a case of him being intoxicated and committing the offending, it is a case of him being mentally unwell, exacerbated by alcohol to the point where he could not recognise that what he was doing was morally wrong and thus committing the offending.

[27] So I now record a formal verdict of not guilty by reason of insanity.

P W Cooper

District Court Judge