In the matter of Trung The Ma

[2018] QMHC 15

MENTAL HEALTH COURT

CITATION:

In the matter of Trung The Ma [2018] QMHC 15

PROCEEDING:

Reference

DELIVERED ON:

6 February 2018

DELIVERED AT:

Brisbane (ex tempore)

HEARING DATE:

6 February 2018

JUDGE:

Dalton J

ASSISTING PSYCHIATRISTS:

Dr R E Phillipson and
Dr A S B Davison

APPEARANCES:

M Bosscher, solicitor, for the defendant

S J Hamlyn-Harris for the Chief Psychiatrist
D Balic for the Director of Public Prosecutions

SOLICITORS:

Bosscher Lawyers for the defendant

The Office of the Chief Psychiatrist
The Director of Public Prosecutions (Qld)

HER HONOUR:  This is a reference in relation to Trung The Ma, born on the 2^nd of January 1979.  He is charged with murder and interfering with a corpse.  Both charges date from 2 February 2014.  I note that he has no criminal history.  

Mr Ma was a financial adviser, and the deceased man was a Mr Bonham, who was one of his clients.  Investigations revealed that prior to the killing, Mr Bonham had expressed dissatisfaction with Mr Ma’s performance as a financial adviser.  It appears he had not realised at that stage, but it was in fact the case, that Mr Ma had stolen money from him.  

Mr Ma visited Mr Bonham at his home at Tallai on the southern Gold Coast, apparently with the purpose of speaking to him about the complaints that Mr Bonham had made about the financial performance of his investments.  Mr Ma, as I say, attended at his house, Mr Bonham’s house, and Mr Bonham was found deceased some time later.  The autopsy report showed that he had suffered multiple blows to the head, about 11 separate impacts.  There were severe skull and facial fractures, which appeared to result from the two most serious impacts.

I will just say something about the history of this matter in the Court.  The reference was one by Mr Ma himself, and in support of the reference, a report from Dr Ian Curtis, 12 February 2015, was filed.  That report to my mind did not adequately address the issues which bore on the legal matters this Court must decide;  that is, it did not support a defence for Mr Ma.  

When I raised that in a callover in this court with Mr Bosscher, he told me that he would have Dr Curtis provide a new report which addressed the deficiencies.  I was told today when the matter came on for hearing that no such report had been provided by Dr Curtis, and that the defendant did not rely upon Dr Curtis’ report.  I suppose this Court is not strictly an inter partes Court; the jurisdiction is inquisitorial, so I suppose that even had the defendant not wished to rely on Dr Curtis’ report, I could still take cognisance of what was in it.  As I say, the report never to my mind supported a defence, and really just was not helpfully expressed in terms of the legal framework this Court must make findings in.  So I really do not pay regard to Dr Curtis’ report.

I was further told this morning by Mr Bosscher on behalf of the defendant that having apparently given up on Dr Curtis providing a helpful report, the defendant through his solicitors had commissioned a report from Dr Andrew Aboud, a respected forensic psychiatrist.  That report was obtained by the defence solicitors.  It has not been filed in this Court, and Mr Bosscher this morning declined to file it and declined reliance on it, the clear implication being that it did not support any defence for Mr Ma.

That means that I have two reports.  One is from Dr Grant, 4 September 2017, and one is from Dr Neillie, 27 October 2017.  Both these psychiatrists are senior psychiatrists who have immense experience in working in forensic psychiatry.  

I will go first to Dr Grant’s report.  He describes the material starting with the police interview.  He says that during the police interview, Mr Ma appeared at first alert, cooperative and reactive, including with what Dr Grant describes as appropriate laughter in his interactions with police.  Mr Ma gives the police a false version of events, and as the interview wears on, the police decide to confront him with the fact that they had CCTV footage of his car in Mr Bonham’s driveway on the day of the killing.  

Dr Grant describes that after this, the defendant said nothing for quite a long time. 
Then he said to police that he had gone to Mr Bonham’s house to confront him and “I’m in big trouble”.  He then gives an account of talking to Mr Bonham, which account was in part untrue in that it minimised what had happened.  Mr Ma told police that after speaking to Mr Bonham, they agreed to part ways, that is, they agreed to end Mr Ma’s financial consulting to Mr Bonham.  Nonetheless, Mr Ma told police they had not had any significant argument.

In the way of things, the police then proceeded in the interview to confront the defendant with more evidence, at which point he said that he wanted to exercise his right to silence and wanted a telephone call to his wife.  At this point, he was arrested for murder.  He again asked for legal advice and again asked to see his wife.  

After speaking to a lawyer, Mr Ma agreed to speak to police again, and gave them another version of events.  In that version of events, he said he became enraged with the deceased man and hit him.  He said he snapped and could not control himself.  He thought that Mr Bonham would destroy his business because of the allegations he was making against him.  At some point during this part of the interview, Mr Ma told police he, meaning Mr Bonham, “just came at me and I hit him again”.  He said that he hit Mr Bonham three times.  He said that after this, he felt as though he wanted to kill himself.  He thought to himself perhaps nobody will ever know.  He told himself that it would all be all right.  

He told police that he cleaned up the blood at the house with a sponge after the killing, trying not to leave any traces of what had gone on.  He took Mr Bonham’s wallet and mobile phone from the bedroom.  He used a sheet to clean up.  He describes moving Mr Bonham’s body into the boot of his car, and then from there, moving it again, leaving it overnight in an abandoned factory, because he feared that if he left it in the boot of the car, his wife would find it.  He said that he knew he had not done the right thing.

Dr Grant conducted interviews with the defendant on the 5^th of May 2017 and the 16^th of August 2017.  At that stage, he, the defendant, had been in the Arthur Gorrie Correctional Centre since March 2014.  He was working in prison as a bail clerk, and he found that work quite rewarding.  He reported that he got on well with the other inmates and had no problems in prison.  

So far as medical history was concerned, it was largely irrelevant – a history of migraine and high blood pressure.

The defendant did not tell Dr Grant spontaneously, but did admit on questioning, that he had stolen from at least three of his clients and defrauded Mr Bonham of more than $300,000.  That apparently, he said, occurred in 2012 or 2013.  During this time, the defendant’s financial advising business was losing money and his plan was to take money from clients and replace it later on.  He said that he did this even though he had assets of his own which he could have sold to deal with his financial problems.  Selling his own assets would have made him feel like a failure, and it would have been obvious to his father and upset his father.

Dr Grant considered that the defendant minimised the influence of the fraud which he had committed against Mr Bonham as being a factor highly relevant to the offence, obviously in terms of motivation, and he states that Clearly enough, had Mr Bonham either investigated what was the cause of his apparently poor financial investments or had someone else do it, the theft would have become evident.

The defendant told Dr Grant that he saw his father as a demanding and meticulous man who was often very critical of him and expected more of him than the defendant could ever deliver.  He said he felt that he could never live up to his father’s expectations.  He said that he had argued frequently with his father over the years.  

In 2008, the defendant’s father had suffered psychotic depression, which required hospitalisation.  As well, the defendant had a sister 10 years his junior who has a diagnosis of bipolar affective disorder.  There is apparently more mental illness in the extended family, including a strong history of affective disorders.

The defendant told Dr Grant that he feared losing control of himself – this is in general as part of his personality – because he recognised that there was a side of him that could be violent.  He said that for that reason, he had never used drugs or alcohol.  He said he would sometimes lose his temper, including with his wife, but had never been violent to her.  In fact, he had never been violent to anyone else before the killing.  He had not been subjected to violence during his childhood.  His parents were never violent to him.  However, people making demands of him caused him to become very angry.

At the time of the killing, the defendant said he felt under pressure because of his business suffering financial problems, and because of his family’s health problems, and also because he was suffering from sleep apnoea and a problem which caused him knee pain.  He said he felt overwhelmed by these things at times.  He worried about how he would go on supporting his wife and daughter.  One of the stresses in this period before the killing as that Mr Ma had begun an online affair with another woman and his wife had discovered it.

The defendant told Dr Grant that when he spoke to Mr Bonham on the day of the killing, he became upset because of the repetitive nature of Mr Bonham’s criticisms.  He said he felt frustrated and he felt anger building, and then it exploded.  He describes the room being flooded with a brilliant, glary light as he attacked Mr Bonham with a hammer, which apparently had been sitting on a shelf nearby the place of their conversation.  He said that during the attack, he felt as though he could see the whole scenario happening as though he was a third party watching it, and he could almost hear himself saying, “Stop.  What are you doing?  Why don’t you stop?”  After the initial attack, the defendant told Dr Grant Mr Bonham fell to the ground.  Then he got up and came at him, so he hit him again.  He told Dr Grant he thought he hit him three times in total.  Then his mind snapped back to reality and he knew “his life was over”.
Dr Grant thought that before the killing, Mr Ma suffered from an adjustment disorder with mixed anxiety and depressive features of relatively mild severity.  He noted that he was continuing to function in most spheres of his life, albeit feeling stress and anxiety from time to time.  He thought he had underlying vulnerabilities in his personality, such as narcissistic traits, which were a compensation he thought for        underlying feelings of inadequacy and failure to measure up to his father’s expectations.  

In terms of the description of the light and the idea that he was a third party observing the attack, Dr Grant thought that the defendant suffered some kind of      dissociation at the time of the killing, which he says is not an uncommon thing in times of high emotional release or trauma.  Dr Grant in his report says that dissociation is not a mental disorder, although it can be a symptom of a disorder.  He was of the view that at the time of the killing, Mr Ma was experiencing an exaggerated severe emotional response to the situation, and he thought that his loss    of control, which led to him killing Mr Bonham, should be seen in that context rather than a symptom of any mental illness.  

Dr Grant did not support a defence of unsoundness of mind, or a defence of diminished responsibility.  So far as the latter partial defence is concerned, Dr Grant’s opinion was that while Mr Ma had a mild degree of impairment from an adjustment disorder, he will not have been substantially impaired in any one of the three relevant capacities.  Dr Grant thought Mr Ma was fit for trial.

I will now turn to the report of Dr Darren Neillie, 27 October 2017.  As part of the           background which he reports, Dr Neillie said that the defendant told him he felt responsibility to work hard from an early age because his father applied pressure to him to carry on the family name and make something of his life.  He told Dr Neillie that once he finished university, he “rose through the ranks quite quickly”, which he thought was due to his good communication skills.  He felt very driven by the need           to work and carry the family name.  He felt that his achievements could never live up to his father’s expectations, and that his father never acknowledged that anything he did was any good.  The defendant said that he found his father’s repetitive criticism of him very difficult to cope with, and this caused arguments between them.

The defendant gave to Dr Neillie the same history, that the defendant’s father began to experience mental health problems in 2008, and this worsened to the point where his father would talk repeatedly about paranoid beliefs.  Notwithstanding all of this history, the defendant told Dr Neillie he had always idolised his father, and that to see him break down in 2008 was very difficult for him.  He said he became very angry with his father because he always thought his father was so strong.  

The defendant told Dr Neillie that the defendant father’s mental health never really recovered, and that one of the consequences of seeing his father mentally ill was that he (the defendant) began to ruminate about his own vulnerability and to experience mental health difficulties under stress.  He told Dr Neillie about his sister being diagnosed with bipolar affective disorder and other mental health problems in the extended family.  

He said he was stressed in 2008 and 2009 because he was trying to establish his own business, and this was also the time when his first child was born.  He told Dr Neillie that he thought everyone had a certain side of their personality which they wanted to          suppress, and that he had a dark space in the back of his mind, and sometimes felt intense or extreme emotions, including flashes of violent thought.  He gave an example that he had once declined the opportunity to use a gun due to fear about what he might do with the gun.  He said generally he was conscious of keeping this intense emotion in check, and for that reason, never used alcohol or drugs because he    was worried that he might not be able to keep himself in check if he was intoxicated.

The defendant told Dr Neillie that at the beginning of 2010, his business came under significant financial pressure and lost around $200,000.  He said that between then and 2013, he stole client funds amounting to a few hundred thousand dollars,           including from Mr Bonham.  He said he always intended to pay this money back.  

The defendant said he married in 2005.  From 2009, he felt that within the marriage, he was never good enough.  When he explained to his wife how stressed he felt, his wife told him he just had to keep going.  Against that background, he began to           communicate with another woman through an internet dating site in 2012.  His wife found out and they separated for three months.  Then they resumed their marital relationship and engaged in marriage counselling.  

He said that during 2012, he felt anxious, frustrated, angry, and spelt a lot of time daydreaming in consequences of the stressors in his life.  He said he was tearful a few times a week, including in 2013.  He said he ate a lot and gained weight.

As for the circumstances of the offending, the defendant told Dr Neillie that he travelled to the deceased man’s house in Tallai and that they had an argument.  Mr Bonham threatened to ruin the defendant’s business by telling everybody that he was incompetent.  The defendant reported that that enraged him.  When Mr Bonham turned his back, he grabbed a hammer from a nearby bookshelf and struck Mr Bonham.  Mr Bonham fell to the ground, but then tried to get back up, at which point the defendant struck him a second time.  Mr Bonham then made a noise, and the   defendant struck him a third time.

The defendant told Dr Neillie that the argument lasted a long time and Mr Bonham was repetitive in his criticisms.  Sorry, this is the argument preceding the attack.  This caused the defendant, he said, to feel a build-up of frustration and anger as though he were talking to his father.  Mr Bonham suggested that the defendant give him access to his client database so that he could market his own business, that is, Mr Bonham’s business, to Mr Ma’s clients.  This enraged Mr Ma further because his own family were on that client database and he resented the idea that Mr Bonham would market his business to the defendant’s family.

The defendant told Dr Neillie that he struggled to control himself and then could not control himself.  He said that after the killing, he cleaned up the area, put Mr Bonham’s body in a sleeping bag and took away his wallet, phone and a dinner plate.  

Dr Neillie discusses the police material and it is clear from that discussion there is certainly objective evidence for the fact that the defendant’s business was in financial trouble and that he had stolen around $300,000 from Mr Bonham.  There are indications that Mr Bonham was suspicious about this, if not completely aware of it.  

Dr Neillie summarises the autopsy report, which I have already mentioned.  There were 11 separate impacts to Mr Bonham’s head.  Two impacts were associated with skull fractures, and the pathologist thought a severe degree of force had been used to inflict them, and that a moderate degree of force was used to inflict the other blows.  There was plastic wrapped around Mr Bonham’s face.  

Dr Neillie says that the defendant had a longstanding sense of inadequacy and low self-esteem, and struggled to feel valued by others, particularly his father.  This led to a vulnerable personality structure.  He also had an aspect to his psychological functioning which manifested as violent thoughts and feelings of anger, which he tried to suppress.  He thought the defendant’s clinical picture was consistent with a diagnosis of adjustment disorder and mixed anxiety with depressed mood, with a possible differential diagnosis of dysthymic disorder. 

As to the impression of very intense light and the perception of being outside his own body at the time of the killing, these were, in Dr Neillie’s opinion, an episode of depersonalisation triggered by intense negative emotion.  

Dr Neillie gives the opinion that there is no evidence to support that the defendant ever suffered from psychotic symptoms.  He finds no evidence that the defendant was experiencing a mental disease which would have deprived him of any relevant capacity.

He also considers that the defendant was not of diminished responsibility at the time of the killing.  He says that even if the adjustment disorder and the depersonalisation could represent an abnormality of mind within that definition, he does not believe that they would have substantially impaired any of the relevant capacities.  He also thought the defendant was fit for trial.

All right.  So my findings will be that there was no unsoundness of mind, no defence of diminished responsibility, and that the defendant is fit for trial so that these charges ought to proceed according to law.

MR HAMLYN-HARRIS:   Your Honour, I have two separate decisions for each offence because the – in relation to the charge of murder - - - 

HER HONOUR:   Thank you.

MR HAMLYN-HARRIS:   - - - diminished responsibility has to be dealt with.

HER HONOUR:   All right.  Thank you.  Mr Hamlyn-Harris, I’ve made orders in terms of your draft.