In the matter of Smail Ayad

[2018] QMHC 5

MENTAL HEALTH COURT

CITATION:

In the matter of Smail Ayad [2018] QMHC 5

PROCEEDING:

Reference

DELIVERED ON:

5 April 2018

DELIVERED AT:

Brisbane (ex tempore)

HEARING DATE:

5 April 2018

JUDGE:

Dalton J

ASSISTING PSYCHIATRISTS:

Dr JA Reddan
Dr RE Phillipson

DETERMINATION AND ORDERS:

1.    The defendant was of unsound mind when the offences were committed;

2.    The criminal proceedings against the defendant are to be discontinued;

3.    The defendant is ordered to be detained for involuntary treatment at the Park;

4.    The defendant is granted limited community treatment, restricted to escorted leave on the grounds of the Park; and

5.    Parties to provide written submissions by email within 14 days on whether there ought to be a non-revocation period for the Forensic Order.

COUNSEL

G Bashir SC and S Robb for Mr Ayad
SJ Hamlyn-Harris for the Chief Psychiatrist
TA Fuller QC for the Director of Public Prosecutions

SOLICITORS:

Murphy’s Lawyers for Mr Ayad
Crown Law for the Chief Psychiatrist
The Director of Public Prosecutions (Qld)

1. Well, so I will make an order that proceedings in the Court today can now be published.

2. The defendant is charged with 16 offences all from the same episode.  The most serious charges are charges of murder on the 23rd of August 2016 of Ms Mia Ayliffe-Chung and Mr Thomas Leslie Jackson. 

3. There was also undoubtedly an offence committed against Mr Grant John Scholz that day.  It was charged as attempted murder.  For technical reasons, essentially, the Prosecutor has undertaken to withdraw that charge.  That means that, in fact, there will be no charge in relation to the stabbing of Mr Grant John Scholz.  That was a non-fatal stabbing.  I would acknowledge, though, that that was a serious injury and it was undoubtedly suffered by Mr Scholz, and was undoubtedly an injury inflicted by the defendant.

4. In relation to the reference so far as it concerns that attempted murder charge, I give leave for the Chief Psychiatrist to withdraw the reference.  That is because the Prosecutor has undertaken to have that charge discontinued. 

5. As well as those charges, the defendant is charged with several counts of serious assault against police, which took place on the 23rd and 24th of August 2016, and one charge of serious animal cruelty.  As I say, all these charges stem from really one series of events which were both dreadful and tragic, and occurred, in the main, at a backpackers’ hostel in Home Hill.

6. The defendant is a now 30 year old single French national who was staying at the hostel.  At about 11 o’clock in the night of 23rd August 2016, he created a disturbance.  One of the first things he did was drag Ms Ayliffe-Chung from her bed and stab her repeatedly.  The manager of the hostel, Mr Scholz, attempted to intervene and it was then that Mr Ayad stabbed him in his leg.  Mr Ayad then threw himself headfirst from the balcony of the first floor of the hostel.  He landed on the ground on his back.  This was an extraordinary action, and I think in the context of all this offending, points to how frightened he was, and how ill he was.  He fractured his back and neck in several different places in that fall.

7. The owner of the hostel, Mrs Shelley Norris, had arrived on the scene at that time and with her dog approached the defendant.  She realised he was armed with a knife still and she fled when she saw that.  Mr Ayad repeatedly stabbed her Alsatian dog, who he believed was attacking him.  He returned to Ms Ayliffe-Chung’s room.  That is where he encountered Mr Jackson, who was trying to assist Ms Ayliffe-Chung.  The defendant repeatedly stabbed Mr Jackson, who died of his wounds several days later.

8. When police arrived at the hostel, the defendant initially complied with their command to lie on the ground.  His account is that he then became of the view that the police, like others, were attempting to do him harm – in fact, to kill him, and that they were acting really in concert with the owner and manager of the backpackers’ hostel.  He then began to violently resist arrest, and many of the charges of serious assault against police stem from that time.

9. Police took him to the Townsville Hospital where he was treated for some of the physical injuries he had suffered, and the next day police took him from the hospital to the watch-house.  They took him in an unmarked police car, and during that transfer, he again became highly agitated and violent, and assaulted several police officers, and that is the occasion of the remaining serious assaults against police.

10. In this Court, we have received reports from four doctors:  Dr Olav Nielssen engaged by lawyers acting for the defendant; Dr Voita, who treated Mr Ayad after his transfer to the High Secure Unit at The Park on 8 September 2016; and also Dr Scott and Dr Heffernan, both of which doctors were engaged by this Court to provide independent reports on the defendant’s state of mind at the time of the offending.  All four doctors gave evidence today, and all agreed that at the time of the offending, the defendant was of unsound mind.

11. As well as the doctors to whom I have just referred, this Court has also had information which was generated by the medical and psychiatric examinations which the defendant received almost immediately after the offending, and I will detail that body of medical evidence before going on to discuss the opinions of the doctors who provided reports to the Court. 

12. As I have said, police took the defendant from the hostel to hospital.  It was ascertained that he had several stable neck and back fractures and soft tissue injuries caused by his having jumped off the first floor balcony.  At the Townsville Hospital, Mr Ayad was reviewed by a psychiatrist, Dr Jason Lee, on 25 August 2016.  The defendant told Dr Lee that he had been having trouble sleeping and was suffering from a reduced appetite.  He said that this was because he was stressed at work, because people were making trouble for him.  He thought people were interfering with his work to make it look as though he were not performing his work properly.  He said he thought he could hear people talking in a negative way about him, and that people were watching him. 

13. The defendant told Dr Lee he had been using three to four joints of cannabis a day over a long time.  Dr Lee formed the view that he was insightless, that he was suffering from a mental illness.  He declined to take any antipsychotic medication recommended by Dr Lee.  Dr Lee’s opinion was that the defendant was suffering from the first episode of a psychosis of a schizophrenic type. 

14. On 29 August 2016, that is, four days later, the defendant was reviewed by Dr John Reilly at the Townsville Hospital.  Dr Reilly is now the Chief Psychiatrist of Queensland.  The defendant told Dr Reilly that for a month and a-half, he had known people wanted to kill him.  These were the people at the hostel.  He could not really tell Dr Reilly why they wanted to kill him, but thought that they were motivated because he did a good job packing fruit at his work.  He told Dr Reilly that he believed two of the detectives who were involved in his arrest also wanted to kill him.  The defendant was adamant about his beliefs and rejected any possibility that they were due to mental illness.  Again, Dr Reilly thought that the defendant was suffering some kind of psychosis of a schizophrenic type, and he began making arrangements to transfer the defendant to The Park, which is Queensland’s high secure mental hospital. 

15. On 31 August 2016 before he was transferred to The Park, Dr Voita first spoke to the defendant.  He told her that police were trying to kill him.  He knew that because they had taken him away not in a police car but in an unmarked car.  He also seemed to attribute his injuries, including the fractures to his neck and back, to police. 

16. The defendant told Dr Voita that he had packed his bags, that is, at the backpackers and that they all wanted to kill him, that is, the police and the people at the backpackers’ hostel.  He told Dr Voita that he was in jail because he had tried to defend himself against these people who wanted to kill him.  He said he had been receiving threats for the last month and a half and that he never wanted to hurt anybody. 

17. The defendant told Dr Voita that he smoked marijuana and had done so since age 13, normally three to four joints a day but, he said, less in the last few months – one to two joints a day.  He said he did not drink alcohol or use other illicit drugs.  He said he was so scared for his life that he had not been able to eat or sleep properly for some time.  He was also scared for his family. 

18. The defendant told Dr Voita that he had jumped out of the – he told Dr Voita he had jumped out of a window at the backpackers’ hostel in order to kill himself because 50 farmers had wanted to kill him the day before.  He said he had seen the farmers going around with machinery and he knew that they wanted to kill him.  He said the cleaners and managers at the hostel had told him to leave. 

19. Dr Voita obtained a history as to the defendant’s childhood and upbringing.  There was nothing remarkable there in terms of explaining his conduct. 

20. Dr Voita had the opinion that the defendant had no insight at all into the fact that he suffered from a mental illness.  He refused to take any antipsychotic medication but did agree to take antibiotics for some of the physical damage he had done to himself.  He was also in considerable pain because he had suffered considerable fractures and he refused to take any painkillers.  He was scared that if he took painkillers he would go to sleep and he felt that he needed to stay awake to protect himself. 

21. Dr Voita considered that the defendant was psychotic.  She ordered blood tests and made plans to have him admitted to The Park.  She noted at this stage the risks of aggression and self-harm were high.  

22. One last psychiatrist examined the defendant before he was transferred to The Park, and that was Dr Mohiuddin.  At this stage, the defendant was in pain both from fractures and also from an infection, and he did agree to some blood tests to monitor his physical health.  He continued to express persecutory delusions relating to the police and Dr Mohiuddin formed the view that he was suffering from some schizophrenic-like illness. 

23. After transfer to The Park, the defendant was commenced on antipsychotic medication.  He continued to report delusional thinking.  He said that he had almost no memory of what had happened at Home Hill, and Dr Voita recorded that he appeared shocked when he was informed of the charges he was facing.  She diagnosed him with a first episode of a schizophrenic-like illness. 

24. There were difficulties medicating the defendant because he began refusing medication when he realised that it sedated him and, again, he expressed the idea that he was vulnerable if he fell asleep.  He incorporated people from The Park into his delusions.  He said that one of the farmers from Home Hill had connections to people in The Park and that he felt in danger even at The Park.  Doubts about the defendant’s compliance with medication continued and, in January 2017, he was commenced on depot injection medication and that led to an observable improvement in his mental state. 

25. The version of events which the defendant gave Dr Voita as to the offending was similar to that that he had given immediately after his arrest and detention, that is, for a month and a half before the offending he had been receiving death threats, including from the owner of the hostel, the manager of the hostel, a particular farmer, the man who was selling him cannabis, an Italian backpacker and the police. 

26. He said that on 22 August 2016 he had tried to check out of the hostel.  He thought that the manager of the hostel and the cleaner had told him that he was to die that day.  That night, that is, the night of the 22nd of August, he said goodbye to people at the hostel.  And the next day, the 23rd of August, the day he planned to leave, he saw or he thought he saw the farmer who was the subject of his delusion outside the hostel with a telephone – a mobile telephone.  When he saw him, he knew that he was there to keep an eye on him.  The farmer was not alone.  He was with another man, and the defendant incorporated that other man into the delusion.  He thought that the other man was transporting a large pizza oven on a trailer and he realised when he looked at the oven that it was big enough to fit his body inside.  He knew that it would be used to burn him. 

27. He then reversed his decision to leave the hostel because he felt that he was safer if he stayed inside.  He said that he had difficulty discussing what he wanted to do with the owner of the hostel that afternoon, and that is borne out by her statement.  She did have a very confusing conversation with him that afternoon about his intention.  He thought that at one point in this conversation she said to him, “You have to go upstairs.”  And it is likely that she probably did say something like that to him.  However, he interpreted it as meaning that he had to die and go to heaven.

28. After she said that, he did leave her office and go upstairs, and he thought that he could hear everybody else in the hostel clapping because they all wanted him to leave because they wanted his job.  He said that at about 8 o’clock that night he smoked cannabis with Mr Jackson and at that point he realised that Mr Jackson was part of the conspiracy to kill him. 

29. The defendant began packing after this, but he was scared and he realised that he had no idea how to leave the hostel.  He believed he could hear people talking loudly.  He thought that they had been drinking and using drugs and he thought they were with the manager of the hostel.  He felt that he was trapped and he had to do something to make the police come and rescue him.  To that end, he threatened Ms Ayliffe-Chung. 

30. He apparently had ideas of taking her hostage.  At the time the defendant spoke to Dr Voita and, in fact, for quite some considerable time, the defendant did not accept that he did not just threaten to take Ms Ayliffe-Chung hostage.  In fact he stabbed her, killing her.  As I have explained, he jumped off the balcony in order to kill himself because he felt so scared and could not see any other option.  He returned to his room after this and at that stage he perceived that Mr Jackson was threatening him, so he stabbed him.  The version that he gave to Dr Voita was that he went downstairs and prayed for forgiveness for what he had done. 

31. Dr Voita and some of the other psychiatrists who have given evidence today thought it was possible that because he was so agitated and frightened and aroused during all this time he genuinely did not lay down memory of what had happened through this time.  Other alternatives, though, are that he simply subconsciously could not face what he had done, so that there was unconscious inability to remember.  There was also, of course, the possibility that he was simply consciously lying about the events.  No one will ever know what the truth is about that.  In terms of the findings I must make it simply does not matter, that there is no doubt that the defendant acted as the prosecution allege.

32. Dr Voita’s opinion is that the defendant was suffering from schizophrenia – paranoid schizophrenia – at the time of the offending and that he had been suffering from that illness for more than four weeks prior to the offending.  She thought that he was deprived of the capacity to know he ought not do the acts involved in the offending because of that illness.  Dr Voita did not think the defendant was intoxicated with cannabis at the time of the offending.  She based that on not just what the defendant told her but also on witness reports of his behaviour and upon a blood test which showed which showed a very low level of cannabis in his blood.

33. I will turn now to discuss the report and evidence given by Dr Nielssen.  Dr Nielssen obtained a very similar, and for our purposes, uneventful childhood history from the defendant.  He obtained a history of cannabis use from about age 13.  The defendant had no mental health history and no criminal history before this. 

34. Dr Nielssen noted statements which were taken by police from other backpackers that the defendant had, indeed, been acting in a peculiar way, suspiciously in a paranoid way and saying very strange things, including communicating that he thought local farmers were waiting outside the hostel to kill him. 

35. He noted that both the owner and manager of the hostel had had confusing and inconclusive conversations with the defendant as to his checking out of the hostel immediately prior to the offending. 

36. Dr Nielssen thought there was no issue of intoxication, again, relying on contemporary statements as well as the defendant’s own statement and, again, on testing.  Dr Nielssen thought that the defendant suffered from a psychotic illness.  He thought the aetiology of that was unclear, but he thought that it had developed over several weeks and then suddenly become acute within a matter of days of the offending.

37. Dr Nielssen noted that there are statistics which show that someone suffering a first episode of psychosis is at a greatly increased risk of committing a crime which involves lethal violence.  Statistically that is so.  It cannot be used to reason, therefore, that the defendant was suffering his first episode of psychosis. But accepting that that is the opinion of all the psychiatrists who have seen the defendant, I think it is some relevant context to the offending which this Court is dealing with. 

38. I now turn to Dr Scott, the first of the two psychiatrists who the Court commissioned independent reports from.  Dr Scott took a similar history to the other psychiatrists from the defendant as to his childhood and drug use.  Dr Scott I thought spent some considerable time in his report making a careful summary of statements which the police collected from other backpackers, from the owner and manager of the hostel, and some other witnesses, all of which indicated that there was objective support for the fact that the defendant had really changed the way he presented to other people, that he was behaving inappropriately, whispering, appearing paranoid, saying things that did not make sense, and including sending, I must say, some rather desperate-sounding and nonsensical text messages, which are recorded with accuracy, of course.

39. The defendant told one other backpacker at the hostel that there were farmers waiting outside the hostel to kill him; that he wanted to leave but he could not get out because the farmers were outside.  Dr Scott noted that the manager of the hotel described the defendant as a polite and well-behaved young lad generally.  I think his exact words were, “he was one of the good ones.”  The owner of the hostel, Dr Scott records, describes the very strange conversation she had with the defendant on the evening of 22 August about whether he would check out of the hostel.

40. Dr Scott took a history from the defendant.  The defendant told him that the farmer for whom he worked, the foreman who worked at the farm and another worker at the farm all knew that he, the defendant, was to be killed.  The latter worker, he said he saw crying because he was friends with the defendant and he did not want the defendant to be killed.  The defendant told Dr Scott that immediately prior to the offending, the farmers “and everyone” were waiting outside the hostel, circling, planning to kill him and burn his body.  He thought that a cleaner at the hostel had told him he would be killed when he went to check out, and he thought the owner of the hostel was making excuses as to why he could not leave.  He interpreted her as telling him that he had to die.

41. The defendant expressed remorse for what he had done to Dr Scott when he was interviewed by him.  He said that he was very sorry.  I think his words were that he cries every day for the pain he has caused to the victims’ family, but that he was so scared, scared for his life at the time of the offending. 

1. Like the other doctors, Dr Scott did not think there was any intoxication affecting the defendant’s state of mind at the time of the offending.  He thought he suffered from paranoid schizophrenia.  He thought that that illness deprived him of the capacity to know he ought not to have done what he did.  Dr Scott said that the defendant “misinterpreted the actions and attributed a malevolent intent to those around him, including the operator of the farm at which he had been working, the hostel owner, the hostel manager and cleaner, and his fellow backpackers and police.  In his psychotic state, Mr Ayad was convinced that they were going to kill him.”

2. Lastly I come to the views of Dr Heffernan, who was the second doctor making an independent report to the Court.  Dr Heffernan also concluded that the defendant suffered from schizophrenia at the time of the offending.  He thought that any dispute of fact arose from his mental condition.  He did not think he was intoxicated at the time of the offending.  He thought that he was unsound because he was deprived of the capacity to know he ought not do the acts involved in the offending.

3. As well as those reports, I have a letter from Dr Andrew Aboud, who is the Clinical Director of the Prisoner’s Mental Health Service.  He is a very experienced and respected psychiatrist.  He is currently treating the defendant.  He also agrees that the defendant is properly diagnosed with paranoid schizophrenia. 

4. So the only evidence before this Court is that at the time of the offending, the defendant was of unsound mind, and, as I say, four psychiatrists actually saw the defendant before he got to The Park.  Four separate psychiatrists made reports to this Court, and as well we have Dr Aboud’s opinion.  So my finding is that on all the charges before the Court, the defendant was of unsound mind and the criminal proceedings ought to be discontinued.

5. I make a forensic order detaining the defendant to The Park High Secure Service.  I think it is imperative for the safety of the community as well as his own treatment needs that the defendant be detained there.  I will grant limited community treatment, which will be limited to escorted leave on the grounds of The Park.  That gives the psychiatrist who treats the defendant the option – the option – of allowing that leave under escort if it is considered appropriate for him.  I understand from Dr Voita’s evidence today that she certainly would not be rushing to grant that leave, but will want a period to be assured of his state of mind, but nonetheless, the option is there should she need it.

6. The category of forensic order will be an inpatient order, and I will not make an order allowing a treating or authorised doctor to change the category of the order to community.  That is, the only change can come from this Court or from the Mental Health Tribunal.

7. Argument was made as to whether or not there ought to be a non-revocation period for the forensic order.  I think if Mr Ayad was not a French national, my decision in relation to that would be much simpler.  I think it is in everyone’s interest that, providing proper accommodation can be made for his illness, he be repatriated to France as soon as is possible.  I certainly do not want to make any order which would prevent or delay that.  The Court has some difficulty because there is no definite information from the Department of Immigration as to its attitude towards the defendant.  No doubt that will become clearer after the delivery of this decision.  If he is to be repatriated in the near future there seems, I suppose, little point in making a non-revocation period for the forensic order.  I think I will reserve my decision as to that one point and invite written submissions from the parties to be delivered to my Associate by email within 14 days.