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Public Prosecutor v Nicholls [2003] VUSC 8; Criminal Case No 058 of 2002 (10 February 2003)

IN THE SUPREME COURT
OF THE REPUBLIC OF VANUATU
(Criminal Jurisdiction)

Criminal Case No. 58 of 2002

PUBLIC PROSECUTOR

-v-

CLAUDE NICHOLLS

JUDGMENT

The defendant is charged as follows:-

“COUNT 1

THREATS TO KILL PERSON – Agensem section 115 of the PENAL CODE ACT [CAP 135].

PARTICULARS BLONG RONG

CLAUDE NICHOLLS yu blong Franis mo yu stap liv long Port Vila. Samtaem long namba 17th November 2002 yu bin telephone long woman ia Nan Churchill olsem yu bin talem long hem se bai yu kilim hasban bong hem, Alan Churchill, I ded within 2 days.

COUNT 2

THREATS TO KILL PERSON – Agensem section 115 of the PENAL CODE ACT [CAP 135]

PARTICULARS BLONG RONG

CLAUDE NICHOLLS yu blong Franis mo yu stap liv long Port Vila. Samtaem long namba 17th November 2002 yu bin telephone long woman ia Julie Hawkes olsem yu bin talem long se bai yu kilim ol man ia olsem Phil Coller, Erick Foster, Owner blong Ex ANZ bank and Owner blong Olympic Hotel.

COUNT 3

UNLAWFUL ENTERING DWELLING HOUSE – Agensem section 143 (1) of the PENAL CODE ACT [CAP 135].

PARTICULARS BLONG RONG

CLAUDE NICHOLLS yu blong Franis mo yu stap liv long Port Vila. Samtaem long 17th november 2002 yu bin breakem doa mo go insaed long haos blong mama blong yu we long taem I mama blong yu ino bin save.

COUNT 4

MALICIOUS DAMAGE TO PROPERTY – Agensem section 133 of the PENAL CODE ACT [CAP 135].

PARTICULARS BLONG RONG

CLAUDE NICHOLLS yu blong Franis mo yu stap liv long Port Vila. Samtaem long 17th November 2002 yu bin go insaed long haos blong mama blong yu mo damagem about four doors inside long haos we value blong hemi about VT70,000.”

The prosecution case is this. The defendant’s mother runs a dairy farm. On 17th November 2002 she was away overseas. The defendant’s brother Yan Nicholls called at 8.30 a.m. to check with the dairy hands if all was well. He was surprised when the defendant answered the telephone. He spoke and then finished the call. He rang again a few times but the line was engaged. He thought something unusual was happening.

Etienne Iamha and Mesek Homan are milking boys at the farm. They saw the defendant. They were concerned about his behaviour “Mi tufala I harem hem I stap toktok long mitufala be toktok blong hem I no stret nating olsem we man we hed blong hem I good”. The defendant had a screwdriver and a hammer. He was breaking doors. He had been in the office by the telephone and computer. They were frightened of him and left. Another worker went to turn to tell Yan Nicholls. He couldn’t use the telephone to ring him.

At about 10 a.m. Nan Churchill received a telephone call from the defendant. He wanted to speak to her husband Alan but he was out. The defendant gave a message to pass on that “he was starting to kill”, he was going “to kill Alan in the next two days... he was also going, to kill members of the masonic lodge... I was safe because he loved me...Terry Malony was already dead”.

At approximately 10-30 a.m. Julie Hawkes received a telephone call from the defendant. He said there was a state of emergency “the order to kill had been given, Phil Coller – Kill, Eric Fester – Kill, Terry Malony – dead. It was now the skinning time. He will have no mercy. Claude is the killing machine. He was going to slaughter the masonic network. He would recycle everyone as tin meat”. He continued to talk for a while like that.

By that time Yan Nicholls had been alerted by the farm hand. He drove with a policeman to the farm. On the way he received telephone calls from those who had been telephoned by the defendant. At the farm the defendant was arrested. Yan Nicholls saw the damage to the four doors and produced photographs. The defendant was taken to the police station. The next day he admitted the damage to the doors.

The defendant pleaded not guilty to all counts. There was no challenge to the prosecution case. The defence rested upon section 20 Penal Code.

Section 20 stated:-

(1) Every person accused of a criminal offence shall be presumed sane until the contrary is proved; the burden of such proof shall lie upon the accused on the balance of probabilities.

(2) It shall be a defence to a criminal charge that the accused was at the time in question suffering from a defect of reason, due to a disease of the mind which rendered him incapable of appreciating the probable effects of his conduct. Such disease may consist of a mental disorder or deficiency which leads in relation to the criminal act to a complete deprivation of the reasoning power of the accused beyond a momentary confusion, absence of self-control or irresistible impulse. Any mental disorder which has manifested itself in violence and is prone to recur is sufficient. The disease need not be permanent or prolonged; a temporary loss of mental awareness shall constitute a sufficient defence.

(3) If the accused is found insane he shall be entitled to be acquitted. Notwithstanding such acquittal, the court may make an order for his confinement in a manner to be prescribed in its order.

(4) Involuntary intoxication shall for the purposes of the criminal law be deemed to be a mental disease.

In cross-examination Nan Churchill and Julie Hawkes said the defendant sounded normal. Both Iamha and Homan thought the defendant was not behaving like a normal person. Yan Nicholls recognised the symptoms of the defendant becoming mentally unstable. He gave a description of the illness, the treatment and medical assistance they had sought in New Caledonia and Australia, the help they had given and occasions in the past when there had been similar episodes. These problems occur when he had not been taking his daily lithium for a time, a few weeks or possibly one to three months.

The defendant did not give evidence. That is his right and I draw no adverse from it. He called Dr. Rachel Wells as an expert witness. She is the physician at Port Vila Central Hospital and responsible for mental health patients. She does not claim to be a consultant psychiatrist but has had the psychiatric training which comes with qualification as a doctor and a physician.

Dr. Wells described the mental health facilities in Vanuatu as rudimentary. There are about 30 other patients with similar conditions to that of Claude Nicholls. She stated if he takes his lithium then he functions at a high level. If it is discontinued then his state steadily deteriorates to one of manic depression. He is currently taking 500 mg of lithium twice a day. “Whilst he remains on lithium and avoids use of marijuana he clearly functions at a high level”.

(Her report of 3 February 2003). He is no longer showing the hyperactivity and agitation he displayed when she first saw him on 5 December.

I have her report of 5 December. From the information he gave and her observations and enquiries he apparently stopped his lithium while in prison in July, and because of that become psychotic and violent on 17th November. She described how he was hyperactive and agitated. He related to her how he was told there was some evil in his mother’s house and it had to be released. She had not been told by him about the telephone calls. Dr. Wells did not think this in any way altered her assessment.

In her report of 5th December Dr. Wells says “I believe he was mentally ill on 17th November and therefore not accountable for his actions”. In evidence she stated that it was her opinion that on 17th November he did not appreciate the probable effects of his conduct and this was due to his mental condition.

Guy Benard is his bail guardian. He accepted a number of tasks when the defendant was granted bail. He said within a few days he noted a great change in the defendant’s behaviour for the better. He has supervised the defendant whilst on bail.

I remind myself that the prosecution must prove their case beyond reasonable doubt before there can be a conviction. A defence has been raised under section 20. It is for the defence to prove their case on the balance of probabilities.

I accept the evidence of all the prosecution witnesses. I found them honest and reliable. There was no challenge. I am satisfied it was the defendant who telephoned the two women. They had both known him for a long time, he announced his name to each and talked in an almost identical way to each within minutes. He had no right to enter his mother’s house and he broke the doors.

I also accept the evidence of Dr. Wells. Whilst not a consultant psychiatrist, there are none in Vanuatu, she is sufficiently knowledgeable and experienced to form the opinions she did.

Guy Benard voluntarily took on a difficult and sustained task. He does not claim to be any kind of medical expert. He also noted the great improvement in the defendant from when he first met him.

I am satisfied on the balance of probabilities that the defendant has a disease of the mind. He suffers from manic depression. On the day in question that illness was not controlled whilst off medication. He was mentally ill and not accountable for his actions nor, as a result of that illness, did he appreciate the probable effects of his conduct. The evidence of the prosecution witnesses as to the defendant’s behaviour is consistent with this.

The section states that “Any mental disorder which has manifested itself in violence and is prone to recur is sufficient. The disease need not be permanent or prolonged ; a temporary loss of mental awareness shall constitute such a defence.

In closing address the prosecution raised the question as to whether the fact the defendant had left off taking his lithium and this led to the deterioration in his condition and the events of 17th November in fact negatived the defence available under section 20(2). A sequence of events analogous to criminal acts following upon voluntary intoxication. This was not raised during the trial nor were questions and evidence addressed to it. In those circumstances I must disregard this proposition.

Accordingly, I find the defendant not guilty of all four counts by reason of section 20(2) Penal Code.

I will hear submissions concerning what, if any, order I should make under subsection 3.

Dated at Port Vila this 10th day of February 2003.

R. J. COVENTRY

Judge.