R v W [2016] NZHC 2923 (5 December 2016)

Last Updated: 13 January 2017

THE NAME OF THE DEFENDANT AND ANY IDENTIFYING DETAILS ARE SUPPRESSED UNTIL 12.00 PM ON 16 DECEMBER 2016.

OTHER SUPPRESSION ORDERS, WHICH WILL NOT BE BREACHED BY REPRODUCTION OF THE CONTENT OF THIS JUDGMENT, ALSO EXIST.

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI 2016-085-1400 [2016] NZHC 2923

THE QUEEN

v

_W

Hearing:	1 December 2016
Counsel:	G J Burston and E M Light for Crown C J Tennet and C Hirschfeld for Defendant
Judgment:	05 December 2016

ORAL JUDGMENT OF SIMON FRANCE J

_{(Criminal Procedure (Mentally Impaired Persons) Act 2003, ss 9, 14 and 20)}

[1] The defendant, D, is charged with the murder of Ms Heidi Pryor, a then

37 year old woman who was the defendant’s friend. Ms Pryor was visiting D at the time to share an evening meal. During the course of the evening it is alleged D stabbed Ms Pryor several times, resulting in her death quickly thereafter.

[2] D rang the police and admitted the stabbing. The police attended the scene and D was arrested. At that time, and for some period thereafter, she was very unwell mentally. Successive decisions of this Court have remanded D under the

_{provisions of the Criminal Procedure (Mentally Impaired Persons) Act 2003}

R v W [2016] NZHC 2923 [05 December 2016]

(the Act). The expert advice, which was accepted, was that D’s mental state was

such that the criminal process could not progress.

[3] The Court is now advised D’s mental health has stabilised such that she is

now able to enter a plea.

[4] Section 9 of the Act requires that a Court, before finding a defendant is unfit to stand trial, must be satisfied the defendant is responsible for the act underlying the charge. Counsel for the defendant does not contest the point. There is a certain circularity to that because it is a concession based on instructions, which themselves would only be valid if the defendant is fit to give them. Accordingly, I consider it proper for the Court to make its own assessment, and the Crown has provided the

materials to enable that.¹

[5] The evidence is overwhelming, even leaving to one side statements made by the defendant immediately following the arrest. There is sensibly no possible basis on which to dispute that D killed Ms Pryor by stabbing her to death. In the circumstances I do not consider it necessary to detail the various sources.

[6] Section 9 requires that I be satisfied to the balance of probabilities. Recognising that it is likely I will soon be considering a plea of not guilty by reason of insanity, I confirm that I am satisfied to the criminal standard that D killed Ms Pryor.

Facts

[7] It will be convenient at this point to detail the objective facts. I exclude from this summary the evidence yet to be given about D’s state of mind at the time.

[8] The defendant and the deceased came to know each other as a result of a long standing friendship between their respective partners. On the night in question Ms Pryor’s husband was out of town and returning by air that night. Ms Pryor went to dinner at D’s house with the idea she would then go to the airport to pick up her

_husband.

¹ Criminal Procedure (Mentally Impaired Persons) Act 2003, ss 7 and 9.

[9] During the evening Ms Pryor became concerned about D’s mental well-being. The defendant was acting in a peculiar way. For example, she placed a beanbag near a chair, and then stood on the chair with the apparent intention of falling backwards onto the bean bag. Ms Pryor stopped this happening.

[10] Ms Pryor told the defendant she was going to telephone the defendant’s parents to see if they could come and help. It seems this alarmed the defendant and while Ms Pryor was on the phone the defendant attacked her with a large knife. Ms Pryor was stabbed numerous times. Two wounds to her chest area severed vital veins and arteries. Ms Pryor collapsed and died almost straight away.

[11] After a period D rang 111 and said she had stabbed a girl and the girl was not okay.

Fitness to stand trial

[12] Section 14 of the Act requires the Court to receive the evidence of two health assessors prior to determining whether the defendant is fit to stand trial. In the present case, I received written reports from three experienced psychiatrists, and oral evidence from two of them.

[13] Dr Gordon Lehany provided an updating report dated 5 August 2016. He had previously advised the Court that D was unfit to stand trial. However, in his latest report he records that D has improved considerably from a mental health perspective since she was first admitted following the stabbing. In August she was able to give Dr Lehany a good account of legal process. She was able to discuss with Dr Lehany her intended plea and she had a clear understanding of the consequences. She also understood the consequences of a plea of guilty. Dr Lehany considered that D had been fit to plead for about two months. He considered she could follow a trial and instruct counsel.

[14] Dr Justin Barry-Walsh interviewed D on 9 May, 13 June and 22 July. He prepared his report on 27 July, so one to two weeks prior to Dr Lehany’s updated assessment. Based on his interviews Dr Barry-Walsh concluded D was fit to stand trial. He observed:

... On my most recent interview I found [D] to be organised. She displayed a good understanding of the plea options available to her, the significance of these including of entering a plea of not guilty by reason of insanity. She was organised in her thinking and I am satisfied she would be able to follow legal process and adequately instruct counsel. Whilst she is fragile in mental state, and the court process will represent a significant test for her, I am satisfied that with the appropriate support available she is ready to go through the legal process. For these reasons I do not consider she is unfit to stand trial.

[15] Subsequently Dr Barry-Walsh re-interviewed D three days ago on

28 November 2016. He notes some deterioration brought on by anxiety about the Court proceedings and the name suppression. However, the mood change was being managed and Dr Barry-Walsh remained confident D understood the necessary matters and was able to participate in the criminal process.

[16] Dr Philip Brinded interviewed D on 25 August. Based on this he also was of the view that D had sufficiently recovered to be able to follow the Court processes, to instruct counsel, and to challenge evidence.

[17] The Court heard oral evidence from Drs Barry-Walsh and Brinded, both of whom confirmed their assessments. The evidence confirms the experts had regard to the important issues of D’s understanding of what she has been charged with, why she has been charged, whether she had a lawyer and her ability to instruct that lawyer. Consideration was also given to her ability to comprehend documents, and to follow questions and conversation threads.

[18] I am satisfied D is fit to stand trial, and as part of that, to plead. Whilst she has a mental impairment, it is clear she understands the plea options available to her, and the consequences of each. She has experienced counsel assisting. Her intimated plea of insanity is a rational choice given the available evidence, and does not of itself raise any concerns.

Not guilty by reason of insanity?

[19] At the conclusion of the oral evidence I indicated to counsel and D that I was satisfied under s 14 of the Act that she was fit stand trial and to enter a plea. I then had D arraigned, and her plea was not guilty by reason of insanity.

[20] Section 20 of the Act authorises the Court, pre-trial, to enter a verdict of insanity if:

(a) the defendant indicates that will be the defence;

(b) the prosecution agrees that not guilty on account of insanity is the only reasonable verdict; and

(c) the Court is satisfied, having received expert evidence, that the defendant was insane within the meaning of s 23 of the Crimes Act 1961.

[21] Section 23 of the Act provides:

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 or her when labouring under natural imbecility or disease of the mind to such an extent as to render him or her 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 or she did or omitted the act, and insane delusions, though only partial, may be evidence that the offender was, at the time when he or she did or omitted the act, in such a condition of mind as to render him or her 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.

[22] In the present case expert advice was provided in written reports, and again orally, by Drs Barry-Walsh and Brinded. Each reached a consistent view as to D’s thought processes at the time she stabbed Ms Pryor, and it is necessary to recount some of that history.

[23] D experienced a first serious mental health issue in April 2015, and on

29 April 2015 she was seen by a crisis team. D was at that time found to be suffering from delusions, and appeared fixated on a friend. She had delusional beliefs about their relationship. D was seen by a psychiatrist who diagnosed a possible major depressive disorder with psychotic features. She was prescribed anti-psychotic and anti-depressive medicine and her mood seemed much improved. There were on-going assessments throughout 2015 and in December she was assessed as being well. This 2015 incident is properly classified as the first psychotic episode. It was her only such episode prior to the psychotic episode that she suffered at the time of killing Ms Pryor.

[24] In the early part of 2016 some deterioration was noted. D was again obsessing about her friend, and believed he was communicating with her via music playlists he had posted on social media. This delusion about the significance of music and lyrics remained with D. D occasionally met the friend, and says she was confused by the mixed messages she felt she was receiving. The friend did not display the same interest and affection in person as she believed he was showing by his communication with her through music lyrics.

[25] It seems that in the period leading up to Ms Pryor’s death D’s delusions were getting worse, but those around her were not aware of it. It was only the night before the fatal event that two friends who were with her became concerned about D’s behaviour. Nor did D herself recognise her mental health had deteriorated despite it mimicking her condition in 2015.

[26] On the day on which she stabbed Ms Pryor, D started suffering from very serious delusions. She believed she was receiving instructions from a higher power that she needed to act in order to save the earth. She believed she had been told that Ms Pryor was a martyr whose death would save the world. It appears D was also experiencing many other messages from multiple sources, the details of which need not be given. Following her arrest D was assessed by the on-call psychiatrist and two crisis team nurses. She was described as rambling with her utterances being delusional. A preoccupation with the friend was also noted.

[27] Both Dr Brinded and Dr Barry-Walsh have reviewed the reports of D’s behaviour in the days and weeks after the incident. The conduct there described is consistent with a person suffering serious mental health deterioration, and with the conclusions they drew from their own interviews with D.

[28] Dr Barry-Walsh considers there is abundant evidence D was suffering from a disease of the mind. At present the diagnosis is a psychotic illness which worsened in the days preceding the offending. Dr Barry-Walsh describes D’s 111 call, and the statements she made to police officers immediately afterwards as being “replete” with evidence of psychosis. She was suffering from delusional beliefs and was undoubtedly actively psychotic.

[29] In terms of the second limb of s 23, Dr Barry-Walsh notes the delusional beliefs including that Ms Pryor was selected to be a martyr, and that D was carrying out the instructions of a guardian angel. There also appear doubts that D appreciated that Ms Pryor would be seriously harmed. At times D seemed confused over who she had stabbed. In Dr Barry-Walsh’s opinion D was unable at the time to reason about the moral wrongness of her actions. He further considers there are questions as to whether she appreciated the nature and quality of her act, given her belief Ms Pryor was now in a safe place.

[30] Dr Brinded’s conclusion is to like effect. He considers it clear that D was suffering from a disease of the mind, although is of the view it is not yet clear whether it was a form of schizophrenia or bipolar disorder. As a consequence D was experiencing delusional beliefs, auditory hallucinations, and thought disorder.

[31] Of her understanding as to what she was doing, Dr Brinded observes:

... She thought that by stabbing the victim she was “saving the world” and that it would not harm [Ms Pryor] as she was “going to a better place”. She said that she thought that her actions would lead to her, her loved ones and her friends all going to “the Land of the Light” and felt that her actions were good and right. Given her state of mind at the time of the alleged offending, in my opinion [D], due to her disease of the mind was unable to make rational decisions with any sense and composure about the moral quality of her actions or the reasons which to ordinary people would make her actions to be wrong. She felt she was doing a positive and beneficial act. In such a state of mind it is my view that she was labouring under a disease of the

mind that was so severe that it rendered her incapable of knowing the moral wrongfulness of her actions, having regard to the commonly accepted standards of right or wrong.

[32] An aspect of the facts meriting comment is the fact that D made a 111 call. This might be thought to indicate she was aware of what she had done and its wrongness. Dr Barry-Walsh provides two observations in response. First, the call does not point to any understanding of moral wrongness. It is clear that D thought killing Ms Pryor was the correct thing to do and the she thought this because of her delusions. It may be that the call shows she understood what she had done, but says nothing about whether she understood the moral wrongness. A second possibility is that the 111 call occurred in a brief period of relative rationality, or pursuant to a different delusion. The evidence suggests D’s thinking was much disorganised with her mind switching across different thought processes and delusions. The 111 call could owe its genesis to a different thought process than the one concerning the need to save the world.

[33] In light of all the evidence, I am satisfied D was insane at the time she tragically killed Ms Pryor. Her mental disorder seems to have been worsening throughout the first part of 2016, although this was not appreciated by those around her. There then seems to have been a very rapid degradation in the 24 to 48 hours preceding Ms Pryor’s death. Her psychotic illness is a disease of the mind. I am satisfied it robbed her of the ability to determine the moral wrongness of her conduct.

[34] I note for completeness that the opinions of both psychiatrists are in part informed by assessments made by experienced persons who saw D immediately after the offending. This provides solid information as to her state of mind at the time Ms Pryor was killed. There is accordingly no prospect that D is malingering, and there is no uncertainty as to the state of her mental health at the time.

[35] I find that D is not guilty of the murder of Ms Pryor on account of the fact that she was insane at the time she stabbed Ms Pryor to death.

Disposition

[36] Section 23 of the Act requires a court to make inquiries into disposition options once a determination of insanity has been made. The Court was again able to obtain the evidence of Drs Barry-Walsh and Brinded on this matter as part of their evidence. Both had addressed this in their reports, and were aware they would be called on to give evidence on the point.

[37] The disposition options are set out in ss 24 and 25 of the Act. Section 24 proffers what can be termed special care status, and s 25 provides a range of lesser options from being an ordinary patient under the Mental Health (Compulsory Treatment and Assessment) Act 1992 through to immediate release. It is common ground that D requires on-going supervision at this point, so the options are:

(a) detention as a special patient under the Mental Health (Compulsory

Treatment and Assessment) Act 1992; or

(b) an order that the defendant be treated as a patient under that Act.

[38] It is necessary to first identify the differences between the two, which primarily relate to greater checks and balances on a special patient. From a clinical treatment viewpoint, there is little difference in what will occur in the short term.

[39] When a person is committed as a patient under s 25, it is the clinicians who are the decision makers in terms of matters such as release back into the community (under oversight from the Director of Mental Health). Further, the ability to control this type of patient once released is quite restricted. There is no power, for example, to direct where the patient lives once released.

[40] By contrast, in relation to a special patient under s 24, many decisions are made under the oversight of the Ministry of Health. Dr Barry-Walsh, who provided a helpful explanation of the differences, identifies any type of leave as an example of a decision needing Ministry approval. Further, the ultimate decision to remove special detainee status can only be made by the Minister of Health. Finally, special patient status gives the clinicians much greater powers in terms of imposing

conditions regulating D’s life once she is released. This will ensure better monitoring, something I consider to be important given the rapid deterioration that occurred on the present occasion.

[41] Mr Tennet urges the Court to consider disposition under s 25 of the Act with an order that D be a compulsory patient. He notes that there is no requirement that one acquitted of murder by reason of insanity always be detained as a special patient. Here D has insight, has responded well to treatment, and there were no underlying substance abuse issues. She is compliant with advice and takes her medication as required. She was not on medication at the time of the second psychotic episode but now would be. It is submitted that compulsory treatment status will provide sufficient security in the short term, and sufficient oversight longer term if community release is directed.

[42] Both physicians firmly recommend detention as a special patient. Both pointed to the same characteristics of the present incident as suggesting such a disposition was appropriate:

(a) the speed with which D’s mental health deteriorated to the psychotic state she went into;

(b) the fact that even though it was the second time it happened, D had no insight into what was happening;

(c) the fact that this manifested itself to those who knew her only quite late in the process, and also the difficulty for some people who saw signs to recognise them as such; and

(d) how D acted once in that state, with the tragic loss of Ms Pryor’s life.

[43] I agree those features mean special patient status is required. In my opinion all safety measures that are reasonably available should be used. I place particular importance on the greater ability to impose controls and monitor D once back in the community.

[44] In terms of s 24(1)(c) of the Act I am satisfied that it is necessary in the interests of the public that D be detained as a special patient under the Mental Health (Compulsory Assessment and Treatment) Act 1992, and I so order.

Name suppression

[45] The final issue is that of permanent name suppression.² The application is opposed.

[46] I address first the available evidence. The physicians all support name suppression. In contrast to a case such as Silverwood,³ it is plain D is deeply concerned about publication of her name. Her concerns seem driven as much by anxiety for the impact on her son and parents as it is for herself. That said, the medical experts agree that lifting name suppression will have a negative impact on her immediate mental health, and rehabilitation.

[47] The most recent advice is from Dr Barry-Walsh who observes:

Name Suppression

I previously found strong psychiatric grounds to recommend continuation of name suppression, commenting [D] risked marked deterioration in her mental state with possible suicidality should she lose name suppression. It is striking that a recent and understandable deterioration in mental state as her court date approached, included as a causative factor fears about the possible consequences of the loss of name suppression. It is evident [D]’s recovery remains fragile, and it therefore remains my opinion that it is very much in her interests from a psychiatric perspective to have name suppression maintained, not only for the general benefit of her potential rehabilitation pathway but also specifically because loss of name suppression is likely to provoke deterioration in her mental state with potentially serious consequences.

[48] Dr Brinded likewise supported name suppression. In reaching that view he

had consulted with D’s treating physician. The concern is the impact on her health if name suppression is lifted.

2. Although labelled permanent, s 208 of the Criminal Procedure Act 2011 makes it plain that a permanent order may be revoked at any time.

³ R v Silverwood [2016] NZHC 1496.

[49] These topics were explored further in oral evidence as a result of which I

draw the following conclusions:

(a) Lifting name suppression will have an immediate detrimental effect on D. Whilst that might often be the case, a difference here is that D’s mental state is already fragile. Physicians have already observed that just the knowledge that the issue was to be decided as this hearing led to a deterioration in D’s mental health.

(b) It cannot be predicted how serious that impact will be but it is apparent D is very concerned about it, and that will be a key factor in the severity with which it is felt.

(c) Lifting name suppression will affect rehabilitation prospects at least by making it harder. Beyond that one cannot say. Dr Brinded, however, adds the helpful observation that the absence of name suppression is not a bar to rehabilitation. Publicity is the norm, and rehabilitation is still achieved in many cases.

[50] Finally, in terms of evidence, I note I have received information concerning the views of Ms Pryor’s family. Her husband has written directly. His primary concerns are for the risk D might pose in the future if released, or for the right of people to make informed choices. I have also been provided by the police with a summation of the family’s views. They oppose suppression. The family consider D has some responsibility for what happened to Ms Pryor, and that her name should be released. They also perceive injustice in the fact that Ms Pryor’s name and life has been exposed in the media, whereas D’s may never be.

[51] I make the following findings in order to provide a factual framework against which to assess the statutory criteria. D will suffer mental health impacts if name suppression is lifted. For a period they may be severe. How long they will last is not clear, but there is no evidence to suggest it will be other than a significant set back from which she will likely recover. It will thereafter be a matter that she will

need to confront when the time is reached for reintegration into the community, and this will make it more difficult for her.

[52] Against that assessment I turn to the statutory test. Reliance is placed by D on s 200(2)(a) of the Criminal Procedure Act 2011 – namely, publication is likely to cause extreme hardship to her. Although not specifically relied upon, I consider s 200(2)(e) – likely to endanger the health of any person – is also relevant.⁴

[53] Counsel for D filed an article that arose from New Zealand research on homicide cases where mental health is an issue. A particular focus was the differences in what is reported in cases where a defendant is convicted from those where he or she is found not guilty by reason of insanity.⁵ The article concluded that where the verdict is not guilty by reason of insanity, the media tend to report significantly on the private personal lives of the defendant, their mental health

history, and very little on the legal process and its meanings.

[54] The article was proffered as evidence of the consequences that will flow from the lifting of name suppression, and which will then influence the extent of any harm to D’s mental health. The extent to which there is likely to be publicity has always been recognised as relevant to the test of extreme hardship, although often it is a matter that cannot be given significant weight. The article provides helpful information on the possible focus of that publicity.

[55] The key assessment needed is whether the significant, but likely temporary, mental health deterioration that D will suffer as a result of lifting name suppression amounts to extreme hardship. The idea of someone’s mental health suffering as a result of these decisions is always troubling. However, it is a sad reality that those caught up in the criminal processes will often be experiencing mental health issues. Decisions such as the denial of name suppression will then often exacerbate that

_{condition. Whether it will do so to an extent that one could say extreme hardship is}

⁴ In D (CA443/15) v Police [2015] NZCA 541 the Court considered para (e) could include the defendant even though (a) is targeted to the defendant. However, it noted that a real risk of endangering a defendant’s safety is anyway likely to encompass extreme hardship.

⁵ McKenna, Thom and Simpson “Media Coverage of Homicide Involving Mentally Disordered Offenders: A Matched Comparison Study” (2007) 6 International Journal of Forensic Mental Health 57.

likely to be caused is not easily to be predicted. Further one must factor into these assessments the reality that the effects will usually be temporary. As Mr Hirschfeld acknowledged, a test of “extreme hardship” deliberately sets the bar high.

[56] D is and will continue to receive the best of medical care in a secure facility which will minimise any risk of self harm in the immediate timeframe. The loss of name suppression will be a significant setback in her mental health and she will need help to work through it. However, given that there is no evidence she will be unable to, with time, I do not consider the test of extreme hardship is met.

[57] I recognise that different views could be taken of these circumstances, and whether the s 200(2)(a) test is met. D’s mental health is already fragile so in terms of “degree” and likely impact, she is already some way along the spectrum. It is arguable that the set back she will suffer is extreme hardship, however temporary.

[58] Given this acknowledgement that different views can be taken, it is appropriate that I indicate albeit briefly why I would have exercised my discretion against suppression.⁶

[59] The starting point for name suppression applications is open justice and D has the task of overcoming that.⁷ Whilst she has been acquitted and her culpability is very low, the reality is that an innocent life has been lost in tragic and very violent circumstances. There is a legitimate public interest in knowing the identity of the person acquitted by reason of insanity.

[60] It appears likely that at some point in the future D will be released into the community. The Crown submits that those who may come into contact with D have a right to know. This is both because they can then make their own assessment of the risks, and also so they can be a further set of eyes alert to the possible danger signs and able to get D assistance should her mental health again deteriorate. As

_{regards this latter point, Dr Barry-Walsh advises that release plans under the special}

⁶ The existence of a risk of self harm does not mean suppression will be granted, the courts must still consider the discretion point: D v Police, above n 4.

⁷ The leading, pre-Criminal Procedure Act 2011 case is R v Liddell [1995] 1 NZLR 538, which is still good authority. The courts continue to emphasise the presumption of open justice, R v Robertson [2015] NZCA 7.

patient regime would involve providing information to key persons (including employers) to ensure there is a network around D that can perform that function.

[61] There is merit in the Crown point which ultimately, however, is really just the articulation of a particular facet that underlies the open justice principle. Providing people with information allows them to make their own choice and assessments. In the case of one who has a mental illness that has manifested itself so violently, that right for people to know is certainly not diminished.

[62] The reason I would exercise my discretion against permanent suppression is because my assessment is that any extreme hardship will ultimately pass, and D will be in a similar position to any acquitted defendant. There is a significant public interest in knowing D’s identity. The possible future impact on D’s rehabilitation is not enough to displace the presumption of publicity and so I would not have

_{exercised my discretion to suppress D’s identity.}

Simon France J