IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE	
CRI-2018-096-3103
[2019] NZHC 480	

THE QUEEN	

v	

DAVID CHARLES GILCHRIST	

Hearing:	18 March 2019	
Counsel:	G J Burston for Crown P Paino for Defendant	
Oral Judgment:	18 March 2019	

ORAL JUDGMENT OF CHURCHMAN J

Introduction

[1]	Mr Gilchrist has pleaded not guilty to the murder of Glen Edward Collins on 20 September 2018. The basis of that plea is that he was not guilty on the grounds of insanity. That has been confirmed today.

[2]	The Crimes Act 1961 provides that a person who is insane at the time of committing an offence shall not be convicted of that offence.1

[3]	Previously, the issue of whether or not a defence of insanity was made out was a matter left to the jury. However, the Criminal Procedure (Mentally Impaired

1	Crimes Act 1961, s 23.

R v GILCHRIST [2019] NZHC 480 [18 March 2019]

Persons) Act 2003 (the Act)2 now provides for an alternative procedure, and this is the procedure that the Court is undertaking today. This particular section is applicable if the defendant indicates that he intends to raise the defence of insanity, and the prosecution agrees that the only reasonable verdict is not guilty on account of insanity and the Judge is satisfied, on the basis of expert evidence, that the defendant was insane within the meaning of s 23 of the Crimes Act 1961 at the time of the commission of the offence.

[4]	That is the reason why today we have had Dr Barry-Walsh give evidence to the Court and why the Court has also been supplied with detailed psychiatric opinions. Those are the documents that were referred to by Dr Barry-Walsh during the course of his giving his evidence.

[5]	The purpose of this hearing today is to establish whether the Court can be satisfied on the basis of that expert evidence that Mr Gilchrist was insane at the time he killed Mr Collins.3

[6]	If the Court is satisfied that the defendant was at the time of the offence, insane, as that concept is defined in the Crimes Act, the Court is required to enter a verdict of not guilty on the grounds of insanity.

[7]	The issue of whether the defendant was insane at the time of committing the offence is a separate issue as to whether or not the defendant is fit to stand trial. In the present case no issue arises in respect of that matter as both the Crown and the defence are satisfied on the basis of the psychiatric evidence that has been made available to the Court that the defendant is now fit to stand trial.

[8]	If the Court is satisfied that the defendant was insane at the time of committing the offence, then it is obliged to consider all the circumstances of the case, the evidence of one or more health assessors as to whether the detention of the defendant is necessary, and it is obliged to make one of two orders. Either that:

2	Section 20(2) of the Act.
3	Section 20(2)(c) of the Act.

(a)	the defendant be detained in a hospital as a special patient under the Mental Health (Compulsory Assessment and Treatment) Act 1992, and this is the course that Dr Barry-Walsh was asked about and covered in the last few questions and answers in his evidence; or

(b)	alternatively, that the defendant be detained in a secure facility as a special care recipient under the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003.4

Facts

[9]	I will now traverse the facts of this case.

[10]	In early September last year, Mr Gilchrist had recently moved from Whangarei to Upper Hutt and had started work at a rubbish collection company. He was residing at a company-owned house along with Mr Glen Collins.

[11]	Mr Gilchrist, as a result of the health difficulties that Dr Barry-Walsh has addressed the Court on, had formed the view that Mr Collins had some form of power over him and that he was the cause of his problems. Mr Collins was completely unaware that Mr Gilchrist held this view of him. In fact, Mr Collins had been friendly, helpful and supportive toward Mr Gilchrist and had been teaching him to drive his employer’s trucks.

[12]	On 20 September, after work, Mr Gilchrist took a stainless-steel knife from the kitchen of the house that he was residing in. He drove to another property where he knew Mr Collins would be at that time.

[13]	Without warning he stabbed Mr Collins in the back with the knife causing part of the blade to break off. He then proceeded to stab Mr Collins about the neck and upper body with the broken blade. A neighbour heard Mr Collins’ screams. When the neighbour said she was calling the police, Mr Gilchrist ran off driving back to the house he was residing in. Mr Collins died of his injuries.

4	See s 24 of the Act.

[14]	As we have heard today from Mr Barry-Walsh, Mr Gilchrist has a long history of psychotic illness. When unwell, he also has a history of violent behaviour. He further has a history of illicit drug taking including a prior addiction to cocaine that saw him imprisoned in England for robberies committed to fund that addiction. He has also been an occasional methamphetamine and cannabis user in New Zealand and has abused alcohol in the past. It does not appear on the particular date of the events in question that these matters were a factor in the offending.

Court processes

[15]	In terms of the Court processes, when this matter came before the Court on 27 November 2018, Justice Simon France noted that a report had been received indicating that Mr Gilchrist was then presently fit to enter a plea and likely had a defence of insanity. He noted that a second psychiatric assessment as to fitness to plead was required by law and that the same psychiatrist could provide a report both on this matter and on the issue of insanity.

[16]	That minute also referred to the processes under s 9 of the Act. Justice Simon France noted that this section had just been amended and assessed it as being in the interest of justice that the matter proceed under the amended Act.

[17]	On 14 November last year, s 9 of the Act was replaced with s 8A which provides:

8A	Determining of defendant unfit to stand trial

(1)	The Court must receive the evidence of two health assessors as to whether the defendant is mentally impaired.

(2)	If the Court is satisfied on the evidence given under subsection (1) that the defendant is mentally impaired (the Court must record a finding to that effect) and–

(a)	give each party an opportunity to be heard to present evidence as to whether the defendant is unfit to stand trial; and

(b)	find whether or not the defendant is unfit to stand trial; and

(c)	record the finding made under (b).

[18]	Having reviewed the psychiatric reports of Dr Justin Barry-Walsh and Dr Nick Judson, and having heard Dr Barry-Walsh give evidence, I am satisfied that the defendant is fit to stand trial and I make an order to that effect under s 8A(2)(b) of the Act.

The reports

[19]	I am not going to go into detail to the contents of the two reports. Dr Barry- Walsh’s reports traverse in some detail the defendant’s psychiatric history: his diagnosis of schizophrenia in 2003, and his hospitalisation for that reason in the United States, United Kingdom and New Zealand.

[20]	The reports confirmed that Mr Gilchrist was receiving treatment through the Community Mental Health Team in Whangarei with an injectable anti-psychotic drug.

[21]	In early September last year, Mr Gilchrist left the Whangarei area to travel to the Hutt Valley and ceased receiving the injections. When spoken to on 21 September, Mr Gilchrist said that his reason for moving to the Wellington area was to escape the Whangarei Mental Health Team who were administering the medication.

[22]	The report noted that Mr Gilchrist had a history of alcohol and drug abuse.

[23]	The report also expressed the conclusion that Mr Gilchrist was fit to stand trial and expressed a preliminary view that at the time of the offence Mr Gilchrist was suffering from a disease of the mind so as to have available to him a defence of insanity. That is the evidence you also heard him give in Court today.

[24]	The report from Dr Judson of 4 March 2019 made similar observations to those made by Dr Barry-Walsh in relation to the history of Mr Gilchrist’s psychotic illnesses. Dr Judson expressed the opinion that Mr Gilchrist met the criteria for a mental disorder as defined by the Mental Health Act. He stated that Mr Gilchrist’s illness had now been stablished sufficiently with medication so that he was fit to stand trial. He concluded Mr Gilchrist suffered from schizophrenia and that, as a result of that, had a defence of insanity to the charge of murder.

[25]	As to disposition, the written view expressed by Dr Judson and confirmed by Dr Barry-Walsh today as set out in Dr Judson’s report is:

Mr Gilchrist will require a prolong period of treatment in hospital to ensure that his illness is adequately treated, to effectively manage future risk, and to gradually embark on a process of rehabilitation. Given the nature of the index event, and the likely risk to other people if he is not adequately contained and treated, I would respectfully recommend that the most suitable disposition option would be as a Special Patient pursuant to s 24(2)(a) of the Criminal Procedure (Mentally Impaired Persons) Act 2003.

[26]	On the basis of the evidence that I have heard from the two psychiatrists, I find the defendant not  guilty  on  the  charge  of  murder  on  the  ground  of  insanity.  Mr Gilchrist’s psychotic state at the time of the offence was undoubtedly caused or contributed to by his absconding from Whangarei and his failure to take the prescribed medication.

[27]	Mr Burston, on behalf of the Crown, has accepted that no verdict other than not guilty on the ground of insanity could be reached having regard to that expert evidence. That is an appropriate position for the Crown to take in this case.

Disposition

[28]	I turn now to the disposition of this matter.

[29]	Section 24 of the Act provides that when the Court has sufficient information on the condition of a defendant who has been acquitted on account of his or her insanity, the Court must consider all the circumstances of the case, the evidence of one or more health assessors as to whether the detention of the defendant in accordance with one of the orders specified in s 20(2) is necessary, and make one of the orders referred to in s 20(2)(b) if it is satisfied that the making of such an order is necessary in the interests of the public or any person or class of person who may be affected by the Court’s decision.

[30]	The facts I take into account in making this  decision include the  fact that  Mr Gilchrist has a longstanding history of psychotic illness. His illness has, at times, been exacerbated by drug and alcohol abuse. There have been times when his illness has been satisfactorily controlled with anti-psychotic medication. However, there

have been a number of times when Mr Gilchrist has failed to comply with his medication regime resulting in him becoming unwell and acting in a violent manner.

[31]	I am satisfied that,  notwithstanding  there  has  been  an  improvement  in  Mr Gilchrist’s health as a result of recent medical treatment, he presents significant risks to society. I accept the opinion expressed by Dr Judson, and confirmed today by Dr Barry-Walsh, that it is appropriate that Mr Gilchrist be detained as a Special Patient pursuant to s 24(2)(a) of the Act, and I make such an order.

[32]	Section 33 of the Act applies upon the making of an order for detention as a Special Patient. The order under which Mr Gilchrist is to be detained continues in force until:

(a)	a direction is given under s 33 that he be held as a patient or a care recipient; or

(b)	the defendant is discharged in accordance with a direction given under s 33.5

[33]	What that means is that, essentially, Mr Gilchrist’s detention will continue indefinitely until a direction is given by the Minister of Health that he be reclassified or discharged. This will not occur until his continued detention is certified as being no longer necessary to safeguard the interests of the public.

Result

[34]	For the reasons I have given, I make an order pursuant to s 24(2)(a) of the Act that Mr Gilchrist be detained as a Special Patient under the Mental Health Act with all the consequences that flow from that.

Acknowledgement

[35]	Before concluding this hearing of the Court today, I specially want to acknowledge the family of Mr Collins. Nothing that I can say or do in this Court will

5	Criminal Procedure (Mentally Impaired Persons) Act 2003, ss 33(2)(a) and (b).

in any way lessen your loss. It took real courage Ms Collins, for you to address the Court today, and I acknowledge your heartfelt and moving statement about the effect that this loss of your son has caused for you.

[36]	The statement read to the Court is not formally a victim impact statement because victim impact statements as such are only read on sentencing. It is not something that can influence the Court in coming to the decisions that the Court is obliged to make under the various mental health-related pieces of legislation. However, it is of fundamental importance for the community. For you and the family of Mr Collins, it is important that you have had the opportunity to express your views and have done so in such a restrained and dignified manner.

[37]	It is my hope that the opportunity to do that will have assisted you in some way in coming to terms with the loss of your loved one, and I acknowledge that process will be a long and difficult one.

[38]	Thank you counsel for your submissions. The Court will now adjourn.

Churchman J

Solicitors:
Crown Solicitor, Wellington for Crown
Paino & Robinson, Upper Hutt for Defendant