R v Allen HC Nelson CRI 2011-042-000060 [2011] NZHC 1108 (14 September 2011)

Last Updated: 16 October 2011

IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY

_{CRI 2011-042-000060}

THE QUEEN

v

MAITLAND BRUCE ALLEN

Hearing: 14 September 2011

Counsel: M O'Donoghue for the Crown

J Sandston for the Accused

Judgment: 14 September 2011

_{JUDGMENT OF MALLON J}

Introduction

[1] Mr Allen is charged with two counts of attempted murder. He has indicated, through his counsel, that his plea will be not guilty on the basis that at the time of the alleged offending he was suffering from a disease of the mind so that the defence of insanity applies.[1] The prosecution agrees that the only reasonable verdict available is not guilty by reason of insanity.

[2] The questions for me are:

(a) Whether I am satisfied that the prosecution has proved the actus reus of the charges (ie the conduct which makes up the charge) from which

R v ALLEN HC NEL CRI 2011-042-000060 14 September 2011

the mens rea (ie the intent component of the charges) could be inferred from the conduct, presuming for this purpose that Mr Allen was sane at the time of the conduct.[2]

(b) If so, whether I am satisfied, on the basis of expert evidence, that the defendant was insane at the time of committing the offence.[3]

(c) If so, then I must consider what order to make as to how Mr Allen is to be dealt with.[4]

Conduct giving rise to charges

[3] On the evening of 6 January 2011 Mr Allen was at his holiday bach at Golden Bay. He had been drinking alcohol and became loud and aggressive. At around midnight he was “ranting and raving” which woke up occupants of a neighbouring property. One of the neighbours was a 14 year old boy. The boy walked to the nearby beach and was approached by Mr Allen and asked if he would “come and party”. The boy declined the invitation. Mr Allen responded by saying “fine don’t be my friend, I’ll f**ken kill you.” Soon after this Mr Allen returned to his bach to uplift a slasher with a long wooden shovel handle on it. He walked back to the beach where two campervans were parked. Mr Allen banged on the side of one of the campervans with the slasher head, yelling at the occupants that “if you’re still here when I get back it will get ugly”. The occupants hurriedly drove off but as they went past Mr Allen whacked the slasher on the side of the vehicle and then threw the slasher.

[4] After this, Mr Allen obtained methylated spirits from his bach. He used the slasher to smash the headlamps and the front windscreen of the second campervan. As he was doing this he was verbally abusive and made threats to the two occupants of the campervan. He said to the two occupants that “if you don’t move now I’ll

_{shoot you” and he also threatened that he would ignite the van. He poured the}

methylated spirits into the cab of the campervan. The couple were in a sleeper unit on top which was not accessible from the cab. Mr Allen poured methylated spirits directly beneath where the two occupants were holed up. He ignited the methylated spirits and flames took hold.

[5] While the female occupant was on the phone to emergency services her partner managed to use a fire extinguisher to put out the fire (via a small access window between the cab and the sleeper unit). Police arrived shortly after and Mr Allen was located and arrested. The attempted murder charges relate to the two occupants of the van which Mr Allen set alight.

[6] The above description of the facts comes from the summary of facts. The summary of facts is supported by the committal statements which I have reviewed.[5]

Counsel for Mr Allen advises that on Mr Allen’s behalf it is accepted that the summary of facts accurately summarises the evidence from the committal statements and no issue is taken as to proof of the conduct that makes up the charge. I am satisfied that these facts establish the actus reus of the charges. I am also satisfied that the facts establish conduct from which the mens rea for the charges could be inferred if Mr Allen were presumed to be sane at the time of the offending.

Insanity defence

[7] Section 23 of the Crimes Act provides, so far as is presently relevant, that a person is not to be convicted of an offence:

(a) by reason of an act done when they were labouring under “ a disease of the mind”;

(b) which is to such extent as to render the person “incapable” of either

_{“understanding the nature and quality of the act” or “of knowing that}

the act ... was morally wrong, having regard to the commonly accepted standards of right and wrong.”

[8] On the question of whether Mr Allen was insane at the time of the offending, so that the defence provided by s 23 of the Crimes Act would apply, I have in evidence before me reports from two psychiatrists and a report from a clinical psychologist. The reports were admitted into evidence under s 9 of the Evidence Act. The experts were not required to give oral evidence. Collectively, these reports provide detailed information about Mr Allen’s history, the events leading up to the events on 7 January 2011, Mr Allen’s account of his conduct on 7 January 2011, Mr Allen’s state immediately after the events and his health since then. They also provide the report writers’ opinions on the s 23 matters.

[9] Starting first with the background, Mr Allen is 60 years old. He was 59 years old at the time of the events that gave rise to the charges. The evidence is that he has a history of mental illness dating back more than 30 years. That history is described as being “well documented.” Mr Allen has had periods of inpatient care but has also had relatively successful independent functioning for extended periods. Up until the events on 7 January 2011 Mr Allen had no history of violent offending other than one conviction for male assaults female which related to an incident in 2010.

[10] The male assaults female charge occurred shortly after a long-term flatmate and friend had moved away. Mr Allen got a new flatmate, who distilled his own alcohol. Mr Allen believes that this was a bad influence on him as he increased his alcohol intake and was also occasionally taking marijuana. By early January 2011

Mr Allen noticed that his mood was elevating. He found this “seductive” because he felt so well. Over a period of days he began to notice some different things. Amongst other things, he thought he could communicate with the radio, predict earthquakes and other cataclysmic events and that he could actually create them. He thought that the police may have hidden microphones in the house. He began to believe he was Jesus Christ.

[11] On 6 January 2011 he drove from Christchurch to the bach at Golden Bay. He thought that maybe the police or others were helping him or guiding him. When

he arrived at the bach he became furious because the door was locked and his key would not work. He thought his brother had done this but also wondered if someone was conspiring against him and if this was a “test”. He got into the garage and he and a friend began drinking gin and tonic and smoking cannabis. In the course of the day he threw some chairs around. At some stage in the evening he saw lights out at sea and wondered if he was being spied on. As the day and evening wore on he became more frustrated about things (although by this stage he had gained entry to the bach) but also believed that he and his friend could “solve the riddle of the universe”. When he noticed the campervans on the beach he became very angry. He thought they were abusing him “like I’m the new Messiah.” He wondered if there was a speaker and a “set up”. He then acted in the way described above.

[12] Against this background I turn to the views of the report writers about whether Mr Allen qualifies under s 23. The first report is from Mr Craig Prince, a Senior Clinical Psychologist with the Canterbury Regional Forensic Psychiatric Service. His report is dated 27 January 2011. He interviewed Mr Allen at Christchurch Men’s Prison on 12 and 13 January 2011, ie shortly after the events which gave rise to the charges. He interviewed him again on 20, 25 and 26 January

2011. He had access to, amongst other things, Mr Allan’s medical records. He also obtained information from Mr Allen’s brother, his long-term flatmate, his employer and his GP. He concludes as follows:

Mr Allen has a “disease of the mind”, namely Bipolar Disorder. His alleged offending appears to have occurred in the context of a manic/hypomanic episode. While he is likely to have known that his actions were morally wrong, there is debate whether he fully understood the nature and quality of his actions. On balance, it is my opinion that Mr Allen meets the legal criteria for a defence of insanity.

[13] The next report is from Dr Jill Buchan. She is a consultant psychiatrist with the Forensic Psychiatric Service at Hillmorten Hospital. She too reviewed the detailed information about Mr Allen and conducted two interviews of him. Her report is dated 4 March 2011. Her conclusion is as follows:

Mr Allen has a major mental illness which has been diagnosed as Bi Polar Affective Disorder Type I. His most recent episode was classified as a manic episode with psychotic symptoms. It is my opinion that this disorder meets criteria for a “disease of the mind” as defined under Section 23 of the Crimes Act 1961. The alleged offences occurred at a time when Mr Allen

was experiencing acute mood and psychotic symptoms. Mr Allen’s inability to fully recall the reasons for his behaviour at the time of the alleged offence make it difficult to determine the extent of the connection between the psychotic symptoms and the alleged offence. Nonetheless, on the balance of probabilities it is my opinion that his mood and psychotic symptoms are likely to have significantly impaired his judgement and decision making at the time of the alleged offences, such that he was rendered incapable of understanding the nature and quality of the acts. His behaviours immediately prior and following the alleged offence appear to have been significantly disorganised and uncharacteristic for Mr Allen.

Therefore, on the balance of probabilities, in my opinion there is sufficient evidence to suggest that a defence of insanity may be available to Mr Allen.

[14] The third report is from Associate Professor Brinded. His report was requested by the Crown. Amongst other things, he had the reports from Dr Buchan and Mr Prince. He interviewed Mr Allen on 12 August 2011. Associate Professor Brinded’s report is dated 19 August 2011. His conclusion is as follows:

Mr Allen suffers from a serious mental disorder, Bi Polar Affective Disorder (or Manic Depressive Illness). His condition meets the definition of Mental Disorder as contained in the Mental Health (Compulsory Assessment & Treatment) Act 1992.

With respect to “Disease of the Mind” as contained in the legal definition of “Insanity”, I believe the Courts would accept Bi Polar Affective Disorder with Psychotic Features as meeting that definition.

Combining Mr Allen’s description to various clinicians of his thoughts at the time of the alleged offending with the observations of the Police, Mr Emerson (Forensic Nurse) and Dr Austin who all assessed immediately after the alleged offending, it appears that Mr Allen was in a psychotic state at the time of the alleged offending. He described an escalating mood which included ideas of reference, delusional thoughts and grandiose beliefs which are consistent with him being in a manic state at the time of the alleged offending. Whilst it is hard to quantify the contribution to his state of mind of his having drunk alcohol and taken a “toke” of marijuana, I think it reasonable to accept that his thoughts and actions were largely driven by his abnormal mental state caused by his mental illness.

...

In my opinion, Mr Allen was in a psychotic state at the time of the alleged offending and his thinking was extremely disorganised and irrational. He may not have truly appreciated the nature and quality of his actions due to his delusional beliefs. However more importantly I believe that his mind was so affected by the paranoid and grandiose delusional beliefs that he was experiencing that he was incapable of making any rational or moral decision with respect to subsequent actions. Consequently I believe that he was incapable of knowing that his actions were morally wrong given the commonly accepted standards of right and wrong and it is for that reason that I would support a defence of Insanity for Mr Allen.

[15] Therefore all the experts agree that Mr Allen suffers from Bipolar Affective Disorder (also known as Manic Depressive Illness). They regard this as a “disease of the mind” for the purposes of s 23 of the Crimes Act. They also agree that he was suffering from that disease of the mind when he acted in the way he did in relation to the occupants of the campervan. They are therefore unanimous as to the first component of the s 23 defence.

[16] Where they differ is in relation to the second component of the s 23 defence. Mr Prince and Dr Buchan are of the view that Mr Allen was incapable of fully understanding the nature and quality of his acts (Mr Prince perhaps expressing the more qualified view about that). In contrast Associate Professor Brinded is of the view that Mr Allen was incapable of knowing that his actions were morally wrong. I do not view this difference of view as particularly significant in my assessment of whether s 23 is proven. The difference in view is not unexpected in matters of this kind. The important point is that all experts agree that the criteria necessary for a s 23 defence is met.

[17] I accept the views of the experts. There is no question about their expertise. They have had access to the detailed information and have interviewed Mr Allen. They have set out in detail the information they have relied on in forming their views. Having reviewed their reports there is nothing that causes me any concern such as could warrant rejecting their views. I am therefore satisfied that the criteria in s 23 are met. I find Mr Allen not guilty on account of insanity.

Disposition

[18] Having seen the reports obtained on the issue of insanity, and following a telephone conference with counsel on 8 September 2011, I foreshadowed that I was likely to find Mr Allen not guilty by reason of insanity. In anticipation of that I directed, under s 23 of the Criminal Procedure (Mentally Impaired Persons) Act

2003 (“the Act”), that enquiries be made to determine the most suitable method of dealing with Mr Allen under s 24 or s 25 of the Act. I requested that two reports be obtained. Following that direction I have received reports from Associate Professor Brinded and Dr Earthrowl. Dr Earthrowl is Clinical Head and Consultant Forensic

Psychiatrist at the Canterbury Regional Service. He is involved in Mr Allen’s

current treatment.

[19] Under s 24 I must make an order that Mr Allen be detained in hospital as a special patient if I am satisfied that this is necessary in the interests of public (or the particular person or group that may be affected). This is a requirement directed to public safety. It requires an assessment of Mr Allen’s risk in light of all the circumstances (which includes the nature of the offending) and the expert evidence. If I am not satisfied that it is necessary for the safety of the public (or particular persons or groups) then I must deal with Mr Allen in one of the ways set out in s 25. One of those options, and the one set out at s 25(1)(a), is that he be treated as a patient under the Mental Health (Compulsory Assessment and Treatment) Act 1992.

[20] Despite the serious nature of the offending, both the experts agree that it is not necessary to make an order under s 24 and that the most suitable method of dealing with Mr Allen is by an order under s 25(1)(a) (to take effect as an inpatient order). Their reasons are relatively brief. However, that is perhaps a reflection of the detail that has already been provided in the earlier reports. The important points that emerge are that:

(a) Mr Allen is now 60 years old and, despite having had his illness for over 30 years, he does not have a history over that period of serious violence.

(b) Mr Allen’s aggression is related to periods of elevated mood, psychosis and alcohol use. His relapse on this occasion occurred over a period of weeks rather than days. At the time he was under the care of his GP. Under more structured and intensive supervision from specialist Mental Health Services there is the potential for a more successful intervention should relapse occur.

(c) Mr Allen is generally compliant with his medical treatment and has been fully compliant while under his present compulsory care. His current treatment regime allows for monitoring of compliance through

blood tests and one of his treatments is available in a long acting form. His clinical treatment team have a treatment pathway for him (involving a further period of inpatient treatment and rehabilitation leading to a graduated period of leave initially escorted and ultimately community living with assertive follow up).

(d) Mr Allen has largely recovered from the acute episode of psychosis during which the events of 7 January 2011 occurred.

(e) Mr Allen has displayed insight and great remorse for what he put his victims through.

[21] Mr Allen’s counsel emphasised Mr Allen’s remorse at this hearing before me. He advised that Mr Allen is intending to continue to comply with treatment. He does not want anything like this to occur again.

[22] Both counsel advise that they do not oppose what the experts have said as to the most suitable method of dealing with Mr Allen. The Crown does not seek to argue that an order that Mr Allen be detained as a special patient is necessary. Having considered the reports, and seeing what Dr Earthrowl says about Mr Allen’s ongoing treatment, I am satisfied that an order under s 24 is not necessary and that

the appropriate order is under s 25(1)(a) which is to take effect as an inpatient order.[6]

On the evidence before me this is not a case where, for the purposes of public safety, it is necessary to have the additional controls that the special patient regime provides.

Result

[23] Accordingly:

(a) On the two charges of attempted murder I find Mr Allen not guilty on account of insanity;

(b) I order that Mr Allen be treated as a patient under the Mental Health (Compulsory Assessment and Treatment) Act 1992 which order is to take effect as an “inpatient order.”

[24] Mr Allen does not seek name suppression. The interim name suppression is accordingly at an end.

Mallon J

---

[1] _{Section 23 Crimes Act 1961.}

[2] Bruce Robertson (ed) Adams on Criminal Law (Looseleaf ed, Brookers) at [CA23.2] and _[CM20.02].

[3] _{Section 20 of the Criminal Procedure (Mentally Impaired Persons) Act 2003.}

[4] Sections 23, 24 and 25 of the Criminal Procedure (Mentally Impaired Persons) Act 2003.

[5] At a hearing in the District Court convened pursuant to s 11(2) of the Criminal Procedure (Mentally Impaired Persons) Act 2003 the District Court determined, with the consent of Mr Allen’s counsel, that, based upon the formal written statements and the summary of facts, on the balance of probabilities the evidence was sufficient to establish that Mr Allen caused the acts which formed the basis of the offences charged.

[6] Section 28(1)(b) of the Mental Health (Compulsory Assessment and Treatment) Act 1992.