In the Matter of Ronald James Riley
[2014] QMHC 1
•13 May 2014
MENTAL HEALTH COURT
CITATION:
In the Matter of Ronald James Riley [2014] QMHC 1
PROCEEDING:
Reference 0162/2013
DELIVERED ON:
13 May 2014
DELIVERED AT:
Brisbane
HEARING DATE:
30 April 2014
JUDGE:
Dalton J
ASSISTING PSYCHIATRISTS:
Dr J J Sundin and
Dr S J Harden
FINDINGS AND ORDER:
Mr Riley was of sound mind at the time of the offending alleged on 9 March 2012.
The Proceedings against Mr Riley are to continue according to law.
COUNSEL:
Mr J D Briggs for Mr Riley
Mr J Tate for the Director of Mental Health
Mr S Dullaway for the Director of Forensic Disability
Mr S Vasta for the Director of Public ProsecutionsSOLICITORS:
Legal Aid for Mr Riley
Crown Law for the Director of Mental Health
Crown Law for the Director of Forensic Disability
Director of Public Prosecutions (Qld)
Mr Riley is charged with assault occasioning bodily harm on 9 March 2012. He refers the matter to this Court claiming that he was of unsound mind at the time of the offending, having regard to the definitions in the Schedule to the Mental Health Act 2000 and s 27 of the Criminal Code (Qld).
Section 27(1) of the Criminal Code provides that a person is not criminally responsible for an act if, at the time of doing it, the person was suffering from such a state of mental disease or natural mental infirmity as to deprive him of the capacity to: (a) understand what he is doing; (b) control his actions, or (c) know that he ought not do the act or make the omission.
No psychiatrist supported Mr Riley’s being deprived of any capacity except the third mentioned above in relation to this offending. As to this deprivation, there was a dispute on the psychiatric evidence. Dr Reddan thought that Mr Riley was not deprived of the relevant capacity, and Dr Schramm thought he was. The assisting psychiatrists supported Dr Reddan’s view in their advice to me.
The Alleged Offending
Mr Riley lives in public housing – a unit block. His account of the offending to the examining psychiatrists was as follows. From inside his unit he noticed another resident asking a woman (the complainant) whether she would sell him marijuana. Mr Riley says this took place close to the front door of his (Mr Riley’s) unit. In response, Mr Riley opened the door to his unit and told the two to “piss off” and go and do that in front of their place, not his. The woman abused him verbally and Mr Riley told her to “fuck off”. He says that the woman then approached the gate to his property while screaming at him. He says he threw coffee (from a coffee cup he was holding) over her. He says the coffee was lukewarm. He says the woman then swore at him again. He says his memory is unclear but he concedes that he may have pushed her and/or that she may have fallen over.
The complainant told police that Mr Riley threw a cup of coffee over her, pulled her hair which caused her to fall backwards, bruise her buttocks and cause abrasion to her arm. Mr Riley told police that he thought the complainant fell over after he threw the coffee on her, but told police that he did not punch her, did not slap her, did not do anything, and specifically, when it was put to him, Mr Riley denied pulling the complainant’s hair and said again that the complainant fell over when he threw a cup of coffee at her. Mr Riley said to the police, “Thinking on it now, I know I shouldn’t have done it. You know, but you know, somebody who doesn’t even live on your property is mouthing off to you because you’ve told them to piss off has been doing drug deals at your front door. You know, for real, fuck off.”
In this matter there is a dispute about some facts but there is not, in my opinion, any reasonable doubt that Mr Riley committed the offence of assault within the meaning of s 268(1) of the Mental Health Act. Thus I go on to consider whether or not Mr Riley was of unsound mind pursuant to s 267(1)(a) at the time of the offence.
Mr Riley told the examining psychiatrists that he became involved with the other resident and the woman because he understood that one could lose one’s place in Housing Commission units if there was criminal activity in the units and for that reason was concerned that the drug sale not occur, or at least not occur near his unit.
Mr Riley told the examining psychiatrists that a few hours after this occurred he was subject to some verbal provocation from the woman involved, to which he did not react, and that the next day the same woman, with an unknown man, knocked on his door, asking to talk about what went on the day before, but Mr Riley would not open the door to them. Further, he says that a few days later, when he was riding his bicycle, he became involved in a minor exchange with a policeman and that on 20 December 2012 he was charged with assault, when he reacted to abuse from a fellow resident by hitting that resident.
Natural Mental Infirmity or Mental Disease
Mr Riley resides by himself. He has family who he sees from time to time and with whom he says he has good relations. He is a disability support pensioner and has not worked since about 1985 when he had a car accident. He was quite severely injured in that accident and suffered some brain damage. Dr Reddan thought it was likely that Mr Riley was of low average intelligence prior to the accident and that, although many of his cognitive functions returned to “baseline” after it, he was left with some “residual impairment primarily in the area of executive functioning of the frontal lobes”.
Mr Riley relies upon family and workers at an institution called Blair Athol to assist him. He goes to the Blair Athol facility every night for dinner, riding his bicycle along the streets there and back. He does some volunteer work there. He does his own grocery shopping and makes his own breakfast and lunch at his unit. He keeps his unit clean and manages his own finances, albeit they are simple. He rides a bicycle about on the Gold Coast. He does have a car, and a licence, but says he does not like driving as he tends to get lost. He is not currently on any medication. He sees a psychologist from time to time for advice as to how to manage his anxieties and irritabilities. According to him, although he received compensation in relation to the motor vehicle accident, he has ended up with almost nothing to show from it because, although he bought a house and a car, the house was sold and his parents used the money to buy a home in their name. I note there is no independent evidence of this.
Dr Reddan found him co-operative with reasonable, but unsophisticated, social skills. She thought his speech was mildly pressured at times, but his emotion was reactive and congruent with his mood. She did not find him irritable, although she thought he was somewhat anxious and agitated at times. She found his thought‑form disorganised but without any formal thought disorder. She thought the content of his thinking was within normal limits and there was no delusional thinking.
Dr Schramm was generally in agreement with this assessment but he thought that qualitatively Mr Riley was less able than the assessment of Dr Reddan revealed. He thought that Mr Riley described what he called “classic problems” associated with those living in the community with brain damage, especially of the frontal lobes. Mr Riley reported that he gets cranky, try as he might, and not uncommonly finds himself in arguments with people. Dr Schramm reported that Mr Riley told him that he did not act violently when cranky and had not for years (with one exception), and that he (Mr Riley) knows that he needs to walk away from situations which arouse him and that for the most part Mr Riley says he can do that. Dr Schramm noted that Mr Riley described what Dr Schramm thought were common problems for persons with brain injuries: tending to brood on various issues, particularly considering that he had been unjustly dealt with, causing anger.
Dr Schramm was able to access some old psychology testing (1995) which showed that there were moderately impaired higher cognitive functions, including perseveration, reduced verbal fluency and impulsivity. These seem to have been the result of the brain damage sustained in the motor vehicle accident. Further, Dr Schramm accessed the files of the psychologist who Mr Riley now sees and said, “She implies your client had some difficulty with getting upset, with a focus in therapy on teaching skills to manage those emotional responses”. Again the cause is said to be the head injury acquired from the motor vehicle accident.
Dr Schramm did some cognitive function assessment with Mr Riley, although he says in his report the he considered it “quite coarse”. He found deficits, and in particular deficits in relation to temporal lobe or executive functioning. He thought he had an IQ of less than 70, which he says would give him the mental age of a 10‑year-old. He says it is difficult to know how much of his cognitive impairment is due to the result of a brain injury and how much is due to his pre-injury state. Dr Schramm says, “He displays features consistent with someone who has damage to the front part of their brain featuring difficulties in problem-solving, considering things in the abstract but, especially in regards the behaviour leading to this offence, a marked emotional lability and impulsivity, especially when aroused”. He says further, “The most common features of frontal lobe damage involve issues relating to impulsivity and mood, especially heightened emotional responses. These deficits occur along a spectrum.”
Further Dr Schramm says, “In calm states a person with frontal lobe damage may appear not to be particularly impulsive, or only mildly so, but when agitated (remembering the front lobe damage ironically often heightens or exaggerates a person’s emotional responses, including irritability and excitement) such impulsivity is marked and greater than a non-brain injured person would be at the same level of arousal”.
Capacity to Control His Actions
Dr Schramm gave his written opinion that Mr Riley’s brain damage “would certainly have acted to substantially impede (probably not completely deprive) his ability to control himself, remembering that such ability is exponentially increased in those with frontal lobe brain damage (akin to how a child may be able to control oneself usually, but when aroused, such ability is markedly diminished)”. I read the word “increased” in that sentence as meaning decreased; that is that Dr Schramm was intending to indicate a decrease in Mr Riley’s ability to control himself because of the brain damage. Thus Dr Schramm does not say that Mr Riley was deprived of the capacity to control himself.
Capacity to Know he Ought Not do the Act
On the other hand Dr Schramm says this: “I would though argue that in those seconds, he would have been deprived of the capacity to know wrongness so long as the definition of deprivation is accepted (as it usually is at the Mental Health Court) as being ‘unable to reason with a moderate degree of sense and composure’. That is, in a calm state Mr Riley, despite his impairment, knows that it would be wrong to throw liquid and shove someone and would be able to stop himself from doing so, but in an aroused state, his front lobe brain damage meant he was not so able.” (my underlining).
As is apparent from the words in which Dr Schramm chose to express his written opinion, he had some conceptual difficulty with this point. And that is not surprising for it is an area where concepts of anger, loss of control, loss of reasoning power and the ability to know right from wrong intersect in a way which is not always tidy – see the discussion in A-G (Qld) v Bosanquet [2012] QCA 367, [53]‑[55], [60], [63]-[66], [67], [73], [84], [85].
Dr Schramm was explicit as to his difficulties. He said:
“I think we have here a technical difference in understanding when this capacity to know wrongness has been deprived.” – t 1-14 l 15 (my underlining).
“I acknowledge that, for the most part, Mr Riley does not function with such dysfunction that he has an inability to reason with composure. When he’s calm, he’s able to do so. And as her Honour pointed out, we all have the capacity to lose our temper. When we lose our temper, we lose our temper. My position is that, by virtue of Mr Riley’s mental disease, his brain impairment, he reaches that state upon far less provocation and far more quickly than a person who does not have that mental disease. So what I am suggesting, and I don’t know whether this is necessarily a circumstance where it would be accepted by the court that he would be deprived – my opinion is that it would be, but this is why I say it’s a technicality. I would suggest that in those moments, not beforehand, not the next day when they came back, but in those moments, under that provocation, and only because he had that pre-existing brain impairment, he was operating with not – without a moderate degree of sense and composure, which I have always taken as the definition of when one is – has that capacity to know wrongness deprived.” – t 1-14 ll 30-45 (my underlining).
“Persons with frontal lobe impairment have a propensity to experience much more quickly wider ranges of emotional responses to things. We all have the capacity to become angry, for example, but persons who have frontal lobe damage will become not only angry on less provocation, but more angry than a person without such damage. And I think that’s the case with Mr Riley. So under this provocation, which for a person without brain damage would not have been enough to cause them to be so aroused that they were in a state when they weren’t able to reason with composure, Mr Riley, with his damaged frontal lobes, reached that position, reached that state …
HER HONOUR: He reached that state sooner than a normal person would?---Reached that state sooner and with less provocation.
Yes. He became more angry, more quickly, than a normal person?---Yes. That’s right. And he wouldn’t have, if he didn’t have that mental disease.” – t 1-15.
Dr Schramm explained under cross-examination that he was not talking about Mr Riley’s capacity to control himself:
“I thought long and hard about that, and I’ll stand by my position that his ability to control himself was significantly impaired, but I, on balance, decided that I couldn’t confidently argue that that was completely deprived. What I could confidently – What I confidently believed was that in those seconds, the composure and sense that Mr Riley had, in those seconds before he threw his cup of coffee, was not one of composure and sense.” – t 1-16.
Then further he again indicated his difficulties saying this to cross-examination:
“MR VASTA: Thank you. You’re saying his reaction is, to this woman saying, look, I – you know, on his view, she’s selling drugs. She’s telling him, get away, it’s got nothing to do with you. That this reaction, to throw the cup of coffee and to pull her hair and so on: he could not tell whether that was the right thing to do or not the right thing to do?---That’s what I’m telling you. I’m saying that all of us can get to that point under enough provocation. But that is not – I appreciate that that’s never, or shouldn’t be, the grounds for a finding of unsoundness of mind. I appreciate that. What I’m saying is that, in this circumstance, he got to that point faster and with less provocation because of a mental disease, and maybe that should be seen as deprived capacity.” – t 1-16 (my underlining).
And further returning to the same difficulty he says in response to cross‑examination:
“Well, no. We know that these are things that happen. What I’m trying to ask you is, why is it that you’re saying that it’s his natural mental infirmity that deprives him of the ability to know whether something is right or wrong?---I don’t know if that is what I’m saying. What I’m saying – I accept that his natural mental infirmity, by itself, day to day, most of the time, is not enough to deprive him of that capacity. All I’m saying is that it’s like – I suppose it’s fertile ground, that without that fertile ground, without that mental disease, he would not have got to that point where he was deprived. So I’m suggesting that maybe that should be a situation where the court may find him of unsound mind, but I appreciate that it’s a legal technicality that is not for me to say. I can only tell you – I can only repeat again that his brain disease means that he gets to the point where he can’t reason with a moderate degree of sense and composure faster and with less provocation.” – t 1-17 (my underlining).
Then, in response to a question from the assisting psychiatrist, Dr Sundin, there was this exchange:
“Dr Schramm, you said earlier on that you thought the absence of a capacity of control and you thought that there was a significant impairment of that capacity but not an absolute deprivation in the context of a man with an organic brain disorder and particularly frontal lobe features. Could you just be more clear for her Honour as to why you think it’s an impairment and not a deprivation?---I should be candid and say that this is something I’ve vacillated on and it’s something that I at one point had myself convinced that he was deprived, but then I thought was he completely unable to control his motor actions and use that test, and on that test I didn’t think he was at that point.” (my underlining).
Dr Reddan was of the view that there was no deprivation of any of the three capacities. Her view was that Mr Riley had not lost the capacity to control himself, which she correctly understood as volitional capacity – t 1-5. As to the capacity to know that he ought not do the act, Dr Reddan said this:
“We know that Mr Riley is capable of – and indeed, the facts surrounding all of this matter suggest that he’s capable of controlling himself. Certainly, when he’s aroused and angry that control is less, but that could also be said to be true of most people. But in fact he – if we look all of the context, he clearly is able to exercise better judgment if he wishes to. I don’t agree with Dr Schramm that cognitive or emotional arousal causes one to become deprived of the ability to know one ought not do an act, in that that’s related to one’s sense of ethics and ethical behaviour, as well as what is criminal or not criminal behaviour. And that does not – one doesn’t lose that, even if one’s emotionally aroused, and even if one’s got mild brain damage. So I don’t agree with Dr Schramm on that point. …” – t 1‑4-5.
Expanding on that last concept she said this in response to questioning from me:
“… it’s my view that one doesn’t lose one’s ethical sense merely because – even in the presence of brain damage, merely because one is emotionally upset.
Because anybody losing their temper loses their temper - - -?---Yes. That’s correct.
- - - and does the wrong thing, which they’ll acknowledge almost immediately afterwards?---Yes. That’s correct. And that’s a common experience of everyday life, you know. But one doesn’t lose one’s superego or one’s conscience or one’s ethical sense because one’s upset, or even in the presence of brain damage, particularly this degree of brain damage, which is not severe.
Yes?---One doesn’t lose one’s sense of ethics, morality, you know, or superego functions because of that.
Yes. So you’re saying it’s not something that comes and goes?---No. It can in psychosis, your Honour.
Yes. But not in a normal person, and not in this person, albeit he does have some impairment?---Yes. That’s correct, your Honour. It doesn’t come and go, except in severe mood disorders that are pervasive in nature, or psychosis.” – t 1-6.
There was a great deal of cross-examination of Dr Reddan on the grounds that Mr Riley was impulsive and it is clear from her answers that she saw that as relevant to Mr Riley’s ability to control himself, not his ability to know right from wrong. I would agree insofar as this is a legal not clinical matter, and so far as it is a clinical matter, I prefer that view.
Advice from Assisting Psychiatrists
The advice from the assisting psychiatrist Dr Harden was that the difference between Dr Reddan and Dr Schramm as to the extent of cognitive impairment was of “a small degree”. The assisting psychiatrists both preferred Dr Reddan’s view as to Mr Riley’s capacity to know he ought not do the act in question. Dr Harden said that the idea of a transient deprivation in the capacity to know what one ought or ought not do was not something which was “universally shared”. Dr Sundin’s view was that, taken overall, Mr Riley’s behaviour did show an awareness by him that he ought not to do the act in question. She was not convinced by Dr Schramm’s reasoning.
The Legal Test
The submissions on behalf of Mr Riley were very much put upon the passages which appear in Stapleton v R (1952) 86 CLR 358, at p 367, including the passage from the case of R v Porter (1933) 55 CLR 182, cited at that page, “…that, given a disease disorder or defect of reason, then it is enough if it so governed the faculties at the time of the commission of the act that the accused was incapable of reasoning with some moderate degree of calmness as to the wrongness of the act or of comprehending the nature or significance of the act of killing.”
While the tests from Porter and Stapleton are of great authority, I think two points must be made. The first is one which is made in Stapleton itself – the tests are, to adopt the words of the High Court itself in that case (as to other judgments on the topic of capacity) “not to be construed as a legislative declaration and, their meaning, if any difficulty exists about it, is best ascertained by looking at the authorities upon which the statements of the judges was founded.” – p 368. A similar caution is expressed in Bosanquet – see [55] – “However, each case is to be determined on its own facts and circumstances. It would not be appropriate to draw too close an analogy with Re W, which did not concern mania but a defendant who was suffering from delusional disorder … .”
The second point to be made about Stapleton is that it is a consideration of the common law M’Naughten rules, not the definition from s 27 of our Code. There is a significant difference which I think is relevant here: at common law there was no defence equivalent to that part of s 27(1) which reads “ … as to deprive the person of capacity to … control the person’s actions …”.
The facts in Stapleton were quite unlike the facts here. In that case the defence was based on what the Court referred to as “the production of an insane excitement and aggression in a person of inherited mental instability or deficiency.” The Court was at pains to outline that many members of the appellant’s family had been found to be insane and/or criminally insane – p 360 of the judgment. Then the facts of the matter are set out at length between p 360 and p 363. Against a long history of alcohol consumption over the days preceding a murder, there was a sustained period of quite irrational behaviour by the accused man who, perhaps initially angered by a joke in a restaurant, left the restaurant, returned to his home, took out a gun and organised ammunition, caught a taxi, and drove about in the taxi with the driver at gun‑point, seemingly for irrational reasons. Then, for no apparent reason, abandoning the expressed purpose of the taxi ride, got out of the cab, struggled, but failed, to pay the driver and began walking in the street. When he was walking down the street, he saw his victim who he did not know, and shot him, for no apparent reason. The entire sequence of events is not timed, but the evidence was that the taxi ride alone took some 20 minutes – see p 362. Throughout this time the accused man made various statements which made little sense. The next morning he did not have any recollection of the events.
The expert evidence at trial was that Mr Stapleton was a schizoid psychopath, which was a hereditary abnormality. The evidence was further that a relatively small quantity of liquor would incite him to abnormal excitement and aggression, so that he was not aware of what he was doing. In those circumstances the psychiatrist who gave evidence in Stapleton said that he did not think that the accused man understood the nature of his act and did not think he was in a position to realise right from wrong at the time he shot his victim. It is in that context that the dicta as to reasoning with some moderate degree of calmness as to the wrongness of the act were made. And, as I say, the context where the common law did not admit of a defence based on an inability to control one’s actions.
At p 368ff the High Court in Stapleton set out many formulations from the cases as to what is to be understood by the ability to know right from wrong. It is evident that the concept has been expressed in many different ways in different cases over time. I think it would be wrong to place too much emphasis on the idea of reasoning with a degree of calmness in a case such as this. The words are difficult to use in a case where Dr Schramm’s opinion is that Mr Riley’s brain injury meant that he got more angry, more quickly, than a person without brain damage. The idea of reasoning, and the idea of a moderate degree of calmness, do not sit well when what is being discussed is, in essence, a loss of temper for a matter of a couple of seconds.
In my view Mr Riley was not deprived of any relevant capacity at the time of the alleged offending. I prefer the views of Dr Reddan and the assisting psychiatrists to those expressed by Dr Schramm. Accepting that Mr Riley’s natural mental infirmity made him more angry more quickly than another person (without temporal lobe damage) would be when confronted with the lady outside his front door, I do not accept that at the time of the alleged assault Mr Riley was deprived of the capacity to know right from wrong. Mr Riley acted in the context of a reasoned response to what was going on: he might lose his public housing if drug dealing occurred outside his home; therefore he ought to ensure that drug dealers moved on from his front door; persons dealing in drugs who did not live in the unit block had no right to be abusive to him when he was acting responsibly in trying to remove them. That is, there was rational enough thinking, in fact based on notions of what was right and what was wrong, behind Mr Riley’s actions. Afterwards, in the interview with police he conceded that he had over-reacted, as anyone who has lost their temper might do.
I accept Dr Reddan’s view that unless there is a psychosis or an extreme and persistent mood disorder the ability to know right from wrong is not something so transient that it can be regarded as departing for a few seconds in order to afford a defence within the meaning of s 27(1) of the Criminal Code on the basis that the person does not know they ought not do the act in question.
I was somewhat concerned by the way Dr Schramm referred to control of motor actions when he was asked about loss of control in cross‑examination (see the extract above at [23]), but that matter was not pursued, and I am not prepared to find on the basis of this stray comment that Dr Schramm was applying the wrong test in giving his evidence about whether or not Mr Riley was deprived of the ability to control himself at the relevant time. There is no opinion before me that Mr Riley was so deprived.
In circumstances where Mr Riley was not deprived of the capacity to control himself, I cannot see that he has a defence pursuant to s 27(1) of the Criminal Code because he acted when angry, even if he reached that state of anger more quickly and more intensely than someone without brain damage. I do not regard that state of being upset or loss of temper as the deprivation of the capacity to know that he ought not do the acts which are alleged to have constituted the assault. I therefore determine that Mr Riley was of sound mind at the time of the alleged assault
There was no evidence that Mr Riley was unfit for trial.
The advice from assisting psychiatrists was that if I reached that position, a forensic order was not necessary and I agree, having regard to those matters at s 288(4) of the Mental Health Act 2000. I record that no party asked for such an order to be made in the event that I found there was no unsoundness.
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