R. v. Marney, 2020 BCPC 178

Citation: R. v. Marney 2020 BCPC 178 Date: 20200914 File No: 21120-1 Registry: Western Communities IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. BRENDAN CHRISTOPHER MARNEY ORAL REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE L. MROZINSKI Counsel for the Crown: S. Rupertus, by teleconference (agent for P. Cheeseman) Counsel for the Accused: T. Morino, by teleconference Place of Hearing: Colwood , B.C.

Dates of Hearing: September 1 and 2, 2020 Date of Judgment: September 14, 2020 [ 1 ] THE COURT: At issue in this trial is whether the defendant Brendan Marney can be held criminally responsible for his actions on January the 31, 2019, which have resulted in three charges under the Criminal Code . [ 2 ] On that day, at around 9 a.m., Brendan Marney was walking precariously atop the railing of an overpass near Burnside Road and the Island Highway. At times, his eyes would have been closed.

[ 3 ] Nancy Sermons was approaching the overpass in her vehicle when she saw Mr. Marney. She quickly pulled her Ford 150 pickup truck over onto the shoulder of the road, close behind another driver who had also pulled over. She called 9-1-1 immediately, and then she and the other driver, Naval Captain Trainor, approached Mr. Marney. Together, the two coaxed Mr. Marney down off the railing. [ 4 ] Certainly, Ms. Sermons thought something was quite wrong with Mr. Marney. She suspected possible suicidal ideation, but Mr. Marney denied feeling that way.

He was, he told both witnesses, happy to be on the railing. [ 5 ] Eventually, Ms. Sermons and Captain Trainor convinced Mr. Marney to come not just down off the railing but to cross over the road with them toward their parked vehicles. By then, Mr. Marney was expressing a strong desire to have Ms. Sermons drive him to the University of Victoria. Ms. Sermons had no intention of doing so. Rather, she and Captain Trainor tried to keep what was becoming a very agitated Mr. Marney with them until police or ambulance services arrived. [ 6 ] When Ms. Sermons finally told Mr.

Marney she had made the 9-1-1 call, he immediately bolted and ran toward her vehicle. Ms. Sermons quickly realized that Mr. Marney was going to take her truck and gave chase. Before she could catch him, Mr. Marney sped away, and she and Captain Trainor watched as Mr. Marney steered the truck in the direction of the Helmcken Road overpass ramp. There, Mr. Tyson, a driver waiting to turn left off the ramp onto Helmcken Road, watched with concern as the truck driven by Mr.

Marney quickly came up behind him, missed a right-hand turn at the intersection, and careened over several medians before striking a light standard with such force as to cause the pole to bend. Mr. Tyson then observed Mr. Marney get out of the vehicle and run down an embankment away from the crash site. [ 7 ] Within minutes, police arrived at the scene of the collision and RCMP officer Constable Boisvert went looking for the driver. He soon located Mr. Marney paddling a canoe in circles with his hands in the Portage Inlet. Constable Boisvert communicated with Mr. Marney, who was by then about 40 feet off shore.

He immediately suspected Mr. Marney was suffering from some sort of psychosis or perhaps a head injury. [ 8 ] Constable Boisvert was able to coax Mr. Marney back to shore, which was accomplished by Mr. Marney getting out of the canoe in the inlet and making his way onto land. Constable Boisvert covered Mr. Marney with a blanket, escorted him to a waiting ambulance, and travelled with him to the nearby Victoria General Hospital, where Mr. Marney was briefly seen by Dr. Hadley and quickly released back into police custody. Later that day, Mr.

Marney was released on an undertaking to appear and driven by police to his home. [ 9 ] As a result of these incidents, Mr. Marney is charged with three counts of theft of a canoe, theft of a motor vehicle, and the operation of a motor vehicle in a manner dangerous to the public. Mr. Marney admits carrying out the acts alleged. There is, for example, no question on the evidence that Mr. Marney did take Ms. Sermons' truck without her permission, as well as the canoe.

There is no question that his driving was dangerous, having regard to all of the circumstances. [ 10 ] At issue in this trial is the question of mens rea . Specifically, Mr. Marney pleads not criminally responsible by reason of mental disorder. In doing so, Mr. Marney acknowledges he bears the onus of proof, on balance of probability that, at the material time, he was suffering from a mental disorder that rendered him incapable of appreciating the nature and quality of his actions or omissions or of knowing that they were wrong. [ 11 ] In support of this defence, Mr.

Marney testified extensively as to his state of mind in the days leading up to January 31, 2019, as well as on that day and in the days following. In brief, he describes achieving a heightened awareness concerning the true state of reality by January 31 of 2019. This was the result of thoughts that had been percolating in his mind over the previous few days. [ 12 ] He realized, he testified, that the entire world was fake and that it was a trap created by some unknown captors that made everything appear real even though it was not. He felt it was part of that trap to keep him inside the system.

He worried that the captors might become aware of his critical insight into the nature of reality. [ 13 ] He became weary of all other persons, whom he considered zombies. He decided, though, that it was necessary for his own safety to bring one of these zombies over to his side and to awaken their power. He chose one of his instructors at the University of Victoria for this mission and decided it was best to walk from his home in the Goldstream area to the university, a distance well outside any normal walking range. It was on this walk that he came into contact with Ms.

Sermons, and thus began the events that bring us here today. [ 14 ] The Crown takes issue with the truthfulness of Mr. Marney's evidence regarding his state of mind. It asks this court to disbelieve that evidence in whole. Although much of what Mr. Marney describes is reminiscent of the basic plot of the popular Matrix movie series, it does not follow that he cannot at the same time have believed what he says he believed. [ 15 ] Mr. Marney gave a similar outline of his thought process, as I have just described it, to Dr.

Coupland, staff psychiatrist with Island Health, who was qualified in this trial to give an expert opinion on Mr. Marney's mental state. Dr. Coupland gave the opinion that Mr. Marney was suffering from a severe psychotic episode on January 31, 2019 and that his actions were consistent with what Mr. Marney thought were reasonably necessary to save his own life. Dr. Coupland's experience and training convinces him that Mr. Marney's description of his mental state is sincere and consistent with a severe psychotic episode. [ 16 ] Aside from arguing that this court should doubt the veracity of Mr.

Marney's testimony, the Crown submits, in the alternative, that, even if this court believes his evidence, it follows only that Mr. Marney was suffering an acute psychotic episode on January 31, 2019. The evidence, it is submitted, does not go so far as to suggest, on balance, that Mr. Marney did not appreciate the nature and qualities of his actions or that he did not understand they were wrong. [ 17 ] Finally, Mr. Marney testified to smoking marihuana in the days leading up to January 31, 2019.

The Crown submits that this substance was likely the cause of his mental state, such that the defence of not criminally responsible by reason of mental disorder is not available in any event.

[ 18 ] For the reasons that follow, I find Mr. Marney has proven, on balance, that on January 31, 2019 he was suffering from a mental disorder that impaired his ability to appreciate that those actions were wrong, such that he ought not to have committed them. [ 19 ] I have described, in brief, the view Mr. Marney formed of the state of reality at the material time. It is a view that caused Mr. Marney to doubt the very existence of the laws of nature, most particularly the law of gravity. [ 20 ] As Dr. Coupland emphasized in his testimony, when considering the veracity of Mr.

Marney's narrative, it is impossible to ignore the fact he was walking on top of the metal railing on the overpass, risking a fall that would either cause death or catastrophic injury. [ 21 ] As Mr. Marney testified, his view of reality caused him to believe that death was not real. He had no fear of death, he had no fear of falling, and so felt no compunction about walking along the highway with his eyes closed or over the overpass along the railing. This is real evidence that supports Mr. Marney's testimony concerning his actual state of mind that day. [ 22 ] In addition, I accept the opinion evidence of Dr.

Coupland that other indicia consistent with psychosis are described by Mr. Marney. These include Mr. Marney's sense that he could feel electricity; his hypersensitivity to sound; his belief that he could close his eyes and change reality; his manic behaviour, such as eschewing sleep and food; and excessive physical activity, as evidenced by his walk from Goldstream to the overpass, let alone his intention to walk to the University of Victoria or down to Arizona to visit his parents. [ 23 ] As Dr. Coupland puts it, there is not too much to explain how Mr.

Marney came up with such a rich description of what occurred and one that is so consistent with psychosis. Either Mr. Marney is telling the truth that he suffered an acute psychotic episode, as Dr. Coupland opines, or he is lying. [ 24 ] The Crown points to several inconsistencies in Mr. Marney's evidence to support the submission that the court should disbelieve his evidence concerning his state of mind in whole. Some of these submissions concern how it is that Mr. Marney interacted with Ms. Sermons and, later, police, medical personnel, and a legal aid lawyer.

I will address these shortly, but not before addressing questions around Mr. Marney's memory. [ 25 ] As Mr. Marney commenced his testimony in direct, it quickly became apparent that he had memorized, in some considerable detail, the days leading up to January 31 and the events on that day and in the days following. Mr. Marney conceded, on cross-examination, that his recollection was due to his having recounted these matters a number of times and to his having thought about it as well.

He offered that the effects of the psychosis altered some of what he could remember, though some things he could still remember in great detail. [ 26 ] There is no question Mr. Marney had a good grasp on the details that he could remember. His evidence, when repeated on cross, was nearly verbatim from that given in direct. Still, there is a difference, for example, in what Mr. Marney may have told medical student Sophie Lee, a mental health care professional, on February the 2 nd , 2019, about his consumption of marihuana and his evidence given in court. It is a minor difference. [ 27 ] Mr.

Marney may also have told Ms. Lee that he was home alone in the two days leading up to January 31, when in court he testified to travelling to the university on the 30 th and going for a walk that same day. Mr. Marney is adamant he did go to the university and did go for the walk as he testified. He testified, and this is noted in the report by the mental health care professional, that he was quite confused and feeling numb when he provided his account of events on February the 2 nd , 2019. Neither of these two inconsistencies, in the context, cause me to disbelieve Mr. Marney's testimony overall. [ 28 ] Mr.

Marney testified that after police dropped him at his parents' home in the afternoon of January 31, 2019, he connected with a family friend, Mr. Steven Buhr, who was a pastor and who testified on Mr. Marney's behalf at this trial. Mr. Buhr met with Mr. Marney for some time at his home on the 31 st . They discussed, among other things, Mr. Marney's bridge walk. Mr. Buhr was shocked. He eventually invited Mr. Marney back to his residence, feeling it was better not to leave Mr. Marney alone. [ 29 ] At Mr. Buhr's residence, the two talked more and Mr. Buhr convinced Mr. Marney to sleep. Mr.

Marney still held the belief that sleep was not real, but tried to lie down so as not to offend Mr. Buhr. Before doing so, he testified, he had a shower and washed the glass from Ms. Sermons' broken windshield off of himself. Crown pressed him on this detail in cross-examination. In what Crown submits is a convenient lapse of memory, Mr. Marney was unable to specifically remember where the glass was, but testified, "If pressed, I would say my face, my hands, and possibly my arms." [ 30 ] As Mr. Buhr acknowledged, Mr. Marney's face did not appear to be visibly impacted by glass shards.

It is, I agree, difficult to believe that Mr. Marney would not have been treated at the hospital if glass from the broken windshield had been lodged in his face or even his hands. It seems unlikely, therefore, that Mr. Marney was washing glass from his face, as he recalls doing. Mr. Marney did testify to running through brambles on his way to the Portage Inlet, and that would account for scratching and perhaps even dried blood. [ 31 ] When I consider this evidence, I find it cannot be true that Mr.

Marney was washing chunks of glass from his face and hands, as Crown put it in argument, but that is not strictly his evidence, in any event. Mr. Marney may have thought he was washing out glass, however unlikely the possibility. Certainly, having listened to his testimony, I am convinced Mr. Marney believes this to be true. It may well be a false memory. It does not follow and I do not find that Mr. Marney deliberately deceived the court, nor does this evidence cause me to disbelieve the entirety of Mr. Marney's testimony. [ 32 ] The overwhelming evidence in this trial supports the view that Mr.

Marney was suffering an acute psychotic episode on January 31, 2019, an episode that had been building for some days. The central thesis of Mr. Marney's state of mind was that he had awoken to the realization he was in a trap. He felt this knowledge put him in a position to escape, but he could not be discovered lest his captors submit him to a terrible and eternal agony by, among other things, turning him into a table.

[ 33 ] To avoid being caught, Mr. Marney's first plan was to convert his university instructor to his side for aid. Secondly, once he was in the company of Ms. Sermons, he did what he could to avoid arousing suspicion. He did not want to alert his captors to his insight. Mr. Marney lied to Ms. Sermons about his reasons for being on the railing in an effort to prevent her from discovering his state of heightened awareness. [ 34 ] He testified that he was terrified when he learned Ms. Sermons had called 9-1-1. He ran, he said, with no thought but that of escape.

He saw a truck on the side of the road and got into it without thinking. Certainly, the concept of private property was nowhere in his mind. He drove, thinking it would be safe if he could get away again. He knew, as he approached the Helmcken ramp, that he needed to brake, but could not manage it. The truck crashed. As he left the truck, he closed his eyes, thinking his captors would not be able to find him. He ran with his eyes closed, falling into a prickle bush and then into the water. He took off his coat and his pants, as they were slowing him down. He then found a canoe, jumped in, and started paddling.

As he did so, he closed his eyes again, convinced that would have the effect of completely altering his circumstances. [ 35 ] By the time he began communicating with Constable Boisvert, Mr. Marney felt it was a distinct possibility his captors were going to kill him and erase his memory. He feared his insight into the nature of reality would be forever lost. Alternatively, as noted, he feared he would be turned into a table and left to suffer an eternity of agonizing pain. With these thoughts in mind, Mr. Marney decided it was best to play along at being normal so his captors would leave him alone.

He testified to feeling generally confused, but not so confused or disoriented so as to be unable to respond to questions in real time, providing what he hoped the questioner would perceive as an appropriate response. [ 36 ] Mr. Marney told police, people he did not believe were really police, that he understood his rights and that he wanted to speak to a lawyer. Thinking people could simply change themselves into anything they wanted, Mr. Marney told police his mother was a lawyer. He believed his mother could just make herself one.

When he spoke to a legal aid lawyer, he formed the belief he was speaking to someone outside the system who had escaped and who was helping him. The advice he received was to speak to no one. [ 37 ] Before releasing Mr. Marney, Constable Parker recorded an interview he conducted. Constable Parker testified, among other things, that Mr. Marney appeared, to him at least, to be oriented to time and place and to understand what was going on that day. Still, the officer thought Mr. Marney looked to be in shock.

He had trouble making eye contact during the interview and also appeared to stare through or past the officer. He seemed to Constable Parker to be almost vacant. [ 38 ] The interview is notable, in that this is both consistent with Mr. Marney being oriented to time and place, and, at the same time, it is not at all difficult to imagine Mr. Marney trying to act normal, as he testified he was doing, so as to avoid being caught by his captors. [ 39 ] Constable Parker thought Mr. Marney also appeared to be in a state of high remorse. At times that day, Mr. Marney did express to police his concern for Ms.

Sermons and particularly for the damage to her vehicle. Mr. Marney testified that despite knowing Ms. Sermons was a zombie, he still felt badly about damaging her truck. [ 40 ] Crown submits all of this conduct is evidence of an operating mind, that even if Mr. Marney were in a psychotic state, he was oriented without doubt and, moreover, oriented enough to appreciate the nature of his acts, as evidenced by his remorse and his lying to police and Ms. Sermons, if not the doctor at the hospital, to whom Mr. Marney is said to have denied using drugs. [ 41 ] Opining on Mr.

Marney's mental state at the material time, Dr. Coupland testified that neither Mr. Marney's lying to police about his mother or to Ms. Sermons about his reasons for walking on the railing are inconsistent with psychosis. Dr. Coupland gave no opinion on the alleged lie to the doctor. [ 42 ] Mr. Marney denies this. Rather, he testifies that the person he spoke to, whom Mr. Marney did not believe was a real doctor, asked if he was on methamphetamine, to which Mr. Marney replied that he had not done any drugs at all. That was strictly true, though, of course, Mr.

Marney had smoked marihuana the night before. [ 43 ] As Dr. Coupland explained, on some level, Mr. Marney was seeing the world quite differently. He was, as he testified, dissembling, to avoid being caught by his captors. At the same time, Crown submits that these lies are capable of supporting an alternative explanation. That is, that Mr. Marney was simply lying in order to carry on doing what he was doing or what he wanted to do. [ 44 ] On balance, however, I find the weight of the evidence supports the former. That is to say that Mr.

Marney committed the acts he committed and said the things he said to avoid being caught by these captors. His operating mind was governed by his psychoses. In that psychotic state, Mr. Marney perceived all of the prompts of the real world as being both false and malicious. He reacted and was perceived to have reacted as if he was oriented to time and place. Yet, at the same time, Mr. Marney doubted the very existence of his time and place, of reality generally. It was, he thought, all part of a plot to keep him imprisoned. He yearned to escape, yet harboured an existential fear of being caught trying to escape.

It was in these circumstances that Mr. Marney stole and drove Ms. Sermons' truck and later the canoe. [ 45 ] I find that Mr. Marney has discharged his onus to prove, on balance, that, at the material time, when he stole Ms. Sermons' truck and drove it in a dangerous manner and subsequently stole the canoe, he was suffering from a mental disorder. Namely, an acute psychotic episode. I find, on balance, based on all the evidence in this trial, that this disorder prevented him from knowing that what he was doing was wrong. [ 46 ] As Mr.

Marney testified, he knew he was driving a truck, but he did not appreciate, given his mental state, that he was stealing the truck. To paraphrase, from the testimony of Dr. Coupland, we can assume Mr. Marney knew he was driving a truck, but that, at the same time, he was convinced he was fleeing from zombies. That would have taken a higher priority in his mind than the concept of ownership. [ 47 ] Mr. Marney knew he needed to slow down at the Helmcken overpass. Again, as Dr. Coupland testified, none of this is inconsistent with psychosis. As we know, Mr. Marney was unable to slow down. He does not know why.

In any case, he did not believe

he was operating in any real world. [48] Finally, when he stole the canoe, I am satisfied, on balance, that Mr. Marney was motivated entirely by a desire to escapeunknown captors, who he was certain would, if they caught him, cause him eternal agonizing pain and suffering. His mental staterendered him unable to appreciate or know that what he was doing was wrong. [49] These findings still raise the question whether Mr.

Marney can rely on the defence of not criminally responsible by reason ofmental disorder, given his consumption of marihuana in the days leading up to January 31, 2019. [50] The Crown submits that Mr. Marney has not proven, on balance, that his psychotic episode was caused by something inherentin his ideological makeup rather than something that was caused exclusively from the voluntary consumption of drugs. In other words,although psychosis is a disease of the mind, the question is whether Mr.

Marney's drug use caused the psychosis, so as to take hisparticular condition that day out of the disease of the mind category. [51] In submissions, counsel for Mr. Marney spoke briefly to the reasons of the court in R. v. Sullivan, 2020 ONCA 33, largely todistinguish the defence of non-mental disorder automatism caused, in that case, by excessive intoxication and the NCRMD defenceadvanced here today on behalf of Mr.

Marney. [52] In its submissions, Crown noted that there is Supreme Court of Canada authority to the effect that self-induced states of mentaldisorder brought on by drug or alcohol use do not qualify as diseases of the mind for the purposes of the NCRMD provisions in s. 16 ofthe Code. While no cases were cited specifically, I have considered the reasons in R. v. Cooper, (SCC), [1980] 1 S.C.R.1149; R. v. Rabey, (SCC), [1980] 2 S.C.R. 513; R. v.

Stone, (SCC), [1999] 2 S.C.R. 290; and R. v.Bouchard-Lebrun, [2011] 3 S.C.R. 275. [53] None of these authorities are factually on point, but together they make it clear that self-induced intoxication, even if it results ina state of psychosis, does not absolve the offender of responsibility for the commission of offences. It is clear, also, that thecharacterization of a mental condition as a mental disorder, for the purposes of s. 16 of the Code, is a legal exercise, as the court put it inBouchard-Lebrun, with a medical and scientific substratum.

It is appropriate, even despite the legal nature of the question, for the trier offact to consider scientific opinion, in that the court may hear evidence from a mental health expert as to whether or not a conditionconstitutes a disease of the mind. At the end of the day, of course, the court must be satisfied that, as a legal matter, the offender wassuffering from a disease of the mind at the material time; and, secondarily, once this is satisfied, that that precluded the offender fromappreciating the nature and quality or wrongfulness of their actions. [54] On the evidence in this case, it is clear that Mr.

Marney was, as Dr. Coupland testified, suffering from a disease of the mind atthe material time. That is, that he was in an acutely psychotic state. Because of Mr. Marney's admission that he ingested marihuanaregularly, and did so at least two days before January 31, the question becomes whether the marihuana caused the psychotic episode. Ifso, if it was the cause of the episode, Mr. Marney cannot be found NCRMD. [55] From the time it became legal in October 2018, Mr. Marney recommenced his use of marihuana, after stopping in or around2016.

He testified that, in the evening of January 29, he had two or three puffs of marihuana. It was, he testified, slightly less than heusually smoked, but still he did feel the effects. Mr. Marney denies having smoked marihuana on January the 30, the day his thoughts ofa heightened awareness began, or the next day, when these offences occurred. [56] Mr. Marney also conceded that he was a regular user of marihuana years earlier when he was at university in Ontario. Duringthat time, in 2015 and 2016, while regularly using marihuana, Mr.

Marney began to develop delusions about a supernatural force orpresence that was behind reality. [57] In the second instance, when his use of marihuana was much less, Mr. Marney left school and returned to his parents' home hereon the Island. Mr. Marney consulted with a psychiatrist about these delusions in 2016, and he was instructed to refrain from smokingmarihuana. Mr. Marney told Dr. Coupland he did not quite understand or get the association between his drug use and his mental illness. [58] Dr. Coupland holds the opinion that Mr. Marney had suffered two prior psychotic episodes in 2015 and 2016.

He found it mostunfortunate these episodes were left untreated. As Dr. Coupland explained, in the case of drug-induced psychosis, it is necessary to spendsome considerable time with a patient to ensure they understand the diagnosis and the relationship between the diagnosis and the drug.This was not done in Mr. Marney's case, at least until the present. [59] With respect to the relationship between Mr. Marney's marihuana use and these offences, Dr. Coupland testified that Mr.Marney's consumption of marihuana is the most significant exacerbating factor in this case.

It was, he testified, an exacerbating factorthat likely triggered a genetic predisposition. Dr. Coupland's working diagnosis for Mr. Marney is that of a psychotic disorder nototherwise specified. He continues to prescribe Mr. Marney antipsychotics, though Mr. Marney has long since stopped using marihuana. [60] While Dr. Coupland agreed, on cross-examination, that he had no definitive way of knowing whether it was the marihuana thatcaused Mr.

Marney's episode of psychosis in late January 2019, his considered opinion is that it was more likely than not that marihuanaconsumption was merely an exacerbating factor to an underlying health issue. [61] As Dr. Coupland noted several times in his testimony, and accepting this is not necessarily entirely within his area of expertise,but certainly within his area of knowledge, many, many people consume marihuana. Most do not become psychotic. I accept Dr.Coupland is in a position to make this observation. [62] In this instance, Mr.

Marney could be characterized as a regular user of marihuana, at least from October 2018, yet he does notexperience psychosis during this period of consumption until January 2019. Moreover, as the evidence in this case makes clear, Mr.Marney's psychosis did not diminish instantly upon the cessation of his consumption. It was gradual, so that, by February 25 of 2019, Dr.Coupland could detect some ongoing symptoms, though the delusions were gone.

[ 63 ] Mr. Marney remains on antipsychotic medication and his mental illness remains, as yet, not completely diagnosed. Dr. Coupland strongly suspects schizophrenia. [ 64 ] Mr. Marney's symptoms of psychosis built gradually from January 29 to the 31 and subsided only gradually with medication. [ 65 ] The evidence supports Dr. Coupland's opinion that the marihuana use triggered the psychosis, but, on balance, does not appear to have been the sole cause of the psychosis. [ 66 ] On the evidence, Mr. Marney's prognosis is not good.

This is suggested by, among other things, the detail by which he could recall the episode in January 2019. [ 67 ] The evidence overall suggests that Mr. Marney's mental condition continues to pose a threat such that there are valid reasons to initiate the special procedures provided for in the NCRMD provisions of the Code . [ 68 ] In these circumstances, I find that Mr. Marney was suffering from a mental disorder, for the purposes of s. 16 of the Code , when he committed these three offences on January 31 of 2019. Mr.

Marney cannot be held criminally responsible for the offences at issue in this trial by reason of mental disorder. [ 69 ] Pursuant to s. 16 of Code , I would enter a verdict of not criminally responsible by reason of a mental disorder on all three counts. [ 70 ] Pursuant to s. 672.45 of the Code , I would refer this matter to the Review Board for disposition. [ 71 ] A copy of the transcripts of the trial must be forwarded to the Review Board, as well as a copy of the opinion of Dr. Coupland, which was entered as an exhibit in this trial. (REASONS CONCLUDED)