McDermott v. The Director of Mental Health; ex parte A-G (Qld) - [2007] QCA 51

SUPREME COURT OF QUEENSLAND

CITATION:

McDermott v The Director of Mental Health; ex parte A-G (Qld) [2007] QCA 51

PARTIES:

KENNETH JOHN McDERMOTT
(plaintiff/first respondent)
v
THE DIRECTOR OF MENTAL HEALTH
(defendant/second respondent)
EX PARTE ATTORNEY-GENERAL OF QUEENSLAND
(appellant)

FILE NO/S:

Appeal No 5078 of 2006
MHC No 46 of 2005

DIVISION:

Court of Appeal

PROCEEDING:

Appeal from the Mental Health Court

ORIGINATING COURT:

Mental Health Court

DELIVERED ON:

23 February 2007

DELIVERED AT:

Brisbane

HEARING DATE:

2 November 2006

JUDGES:

Williams and Jerrard JJA and Fryberg J
Separate reasons for judgment of each member of the Court, Williams and Jerrard JJA concurring as to the orders made, Fryberg J dissenting

ORDERS:

1. The name Linda Denise Lavarch be struck out on the
notice of appeal
2. Appeal dismissed

CATCHWORDS:

MENTAL HEALTH – LEGAL PROCEEDINGS BY AND AGAINST MENTALLY ILL AND OTHER PROTECTED PERSONS – DIMINISHED RESPONSIBILITY, DEFENCE OF – PROOF AND EVIDENCE – where the first respondent was indicted on a charge of murder – where the matter was referred to the Mental Health Court – where some medical evidence was accepted and other medical evidence rejected – whether the finding of diminished responsibility was correct

Attorney-General Act 1999 (Qld)
Criminal Code Act 1899 (Qld), s 27, s 304A
Mental Health Act 2000 (Qld), s 268, s 269, s 405, s 334, s 335, s 336, s 337

Attorney-General v Kamali (1999) 106 A Crim R 269, [1999] QCA 219, Appeal No 47 of 1990, applied
Button v Director of Mental Health[2005] QCA 67, Appeal No 9202 of 2004, 18 March 2005, cited
GMB (2002) 130 A Crim R 187, cited
Hansen v Director of Public Prosecutions [2006] QCA 396, Appeal No 10951 of 2005, 13 October 2006, cited
R v Byrne [1960] 2 QB 396, considered
R v Purdy [1982] 2 NSWLR 964, considered
R v Schafferius [1987] 1 Qd R 381, considered
Re Tumanako (1992) 64 A Crim R 149, considered

COUNSEL:

P F Rutledge for the appellants
A J Rafter SC for the respondents

SOLICITORS:

Director of Public Prosecutions (Queensland) for the appellant
Legal Aid (Queensland) for the respondent

WILLIAMS JA: I have had the advantage of reading the reasons for judgment of Jerrard JA and Fryberg J wherein the background to this appeal is set out. Lengthy passages from the judgment under appeal and summaries of relevant facts appear in those judgments and I will not repeat such matters unnecessarily.

The formal notice of appeal named as appellant Linda Denise Lavarch Attorney-General of Queensland. In fact Mrs Lavarch is no longer the Attorney-General. Given the provisions of the Attorney-General Act 1999 (Qld) and s 334 of the Mental Health Act 2000 (Qld) ("the Act") the Attorney-General of Queensland is the appropriate designation of the appellant. In the circumstances the name Linda Denise Lavarch should be struck out.

Oral argument on the hearing of this appeal proceeded on the basis that the appeal was by way of re-hearing. This Court in Attorney-General of Queensland v Kamali (1999) 106 A Crim R 269 at 270, speaking of the tribunal constituted pursuant to the Mental Health Act 1974 (Qld), said: "Although the Act is silent as to the nature of the appeal, it is accepted that the usual position applies, that is, that it is an appeal by way of re-hearing based on the record before the tribunal." In Button v Director of Mental Health [2005] QCA 67 all parties agreed that such statement should be taken as providing the position under the Act; the matter was not the subject of specific argument. It was against that background that it was assumed in this case that the appeal was by way of re-hearing. There is now another decision of this Court, Hansen v Director of Public Prosecutions [2006] QCA 396, wherein it was said that an appeal to this Court under s 334 to s 337 of the Act is an appeal in the strict sense and not an appeal by way of re-hearing. It does not appear that Kamali and Button were referred to the court on that occasion, and there does not appear to have been any specific argument on the point. The question as to the nature of an appeal pursuant to the Act may have to be finally decided in due course, but it is not necessary to do so for the purpose of resolving this particular appeal. It will be better to have the matter decided after the point is fully argued.

There is no doubt that the respondent, Kenneth John McDermott, caused the death of his father on 31 August 2003 by stabbing him. Subsequently he was indicted on a charge of murder. The matter was then referred to the Mental Health Court to have determined whether or not at the material time the respondent was of unsound mind within the meaning of s 27 of the Criminal Code or whether he was then of diminished responsibility within the meaning of s 304A of the Code.

One of the submissions advanced by counsel for the appellant was that because of factual issues raised in the evidence before the Mental Health Court that court should have refrained from deciding the questions referred to it and sent the respondent to a trial before a jury. In that regard reference was made to an observation of Thomas J speaking for the Court of Criminal Appeal in R v Schafferius [1987] 1 Qd R 381; there at 383 it was said:

"The above considerations lead to the view that there is no warrant for application of a standard of proof beyond reasonable doubt, but that finding should be made only in reliance on clear and convincing evidence, and upon a firm satisfaction consistent with the gravity of the proceeding. … This is consistent with the view that the Tribunal should proceed to a finding only in clear cases, and that it is not intended to be a substitute for a criminal trial, although in appropriate cases it will render a criminal trial unnecessary."

That was said with respect to the position of the Tribunal under the 1974 Act as it then stood.

The matter was then taken up again by this Court in Kamali; after referring to Schafferius this Court said at 273:

"Certainly the gravity of such proceeding warrants the Tribunal’s exercising caution. But if the judge constituting the Tribunal is sufficiently satisfied that there is evidence which, if accepted, would warrant the finding, and believes that the evidence should be accepted, then the finding should be made, notwithstanding that there maybe other contrary evidence in the case which the judge is disinclined to accept."

In turn that passage was cited and applied by this Court in Button, a case pursuant to the Act.

I agree with what Fryberg J has written concerning s 268, s 269 and s 405 of the Act and with his conclusion that the Mental Health Court should proceed to a finding if it is able to do so on the balance of probabilities, except in the circumstances set out in s 268 and s 269 of the Act. The Mental Health Court did not err in proceeding to make findings given the state of the evidence in this case.

The Mental Health Court made findings as to the relevant history of the respondent up to 31 August 2003; those findings are to be found in the passage quoted by Fryberg J in paragraph [87] of his reasons. Without recourse to expert medical evidence, that passage clearly demonstrates that the respondent was for quite some time prior to 31 August 2003 a troubled, disturbed and agitated man. He was also being treated for depression at least.

Against that background it is necessary next to turn to the findings of the Mental Health Court as to the medical evidence. The relevant passages are quoted in the reasons of Fryberg J as follows: Dr Curtis paragraphs [89] and [90], Dr Fama paragraph [91], Dr Sundin paragraph [92] and Dr Reddan paragraph [93]. In my view the following are the critical extracts from those passages.

Based on the respondent's self-reporting the diagnosis made by Dr Curtis was of "schizoaffective psychotic disorder". The doctor suggested that the respondent "had been suffering from delusional beliefs in a conspiracy centred on his brother … which he then projected onto his father." In his view the schizoaffective disorder deprived the respondent "of the capacity to know that he ought not do the act in question, that is, the killing of his father." It followed that in the doctor's view insanity was established, there being a complete deprivation of the capacity to know that he ought not do the act in question. It was only during re-examination the doctor was asked about diminished responsibility. His answers then indicated that in his view the appellant was "substantially deprived … of the controllability for a time and completely deprived of the capacity to know that he ought not do the act." I interpret the first part of that answer as meaning that the respondent's abnormality of mind substantially impaired his capacity to control his actions.

Dr Fama did not find any evidence of "personality disorder, as opposed to some personality difficulties." In his view the evidence indicated a "delusional state" which arose from "a recurrent schizoaffective disorder causing a diminished capacity to control his actions and a complete deprivation of the capacity to know that he ought not do the act". It followed that in the view of Dr Fama unsoundness of mind was established, but if that was not accepted there was at least a substantial impairment of two of the relevant capacities.

Next there is the evidence of Dr Sundin. She rejected a diagnosis of schizoaffective disorder. Her conclusion was that the respondent "suffered from a mixed personality disorder of a narcissistic paranoid type". On her evidence it was "only the capacity of control which might be said to have been removed, because it seemed to her clear that he knew he ought not do the act and he knew what he was doing. But if there was loss or impairment of control, it was unusually circumscribed." In summary Dr Sundin preferred the "diagnosis of personality disorder and rage to that of brief reactive psychosis". But even then Dr Sundin said it was "conceivable" that the respondent suffered from "a brief reactive psychosis."

Finally there was the evidence of Dr Reddan. She concluded that the respondent exhibited "significant personality dysfunction with paranoid narcissistic and anti-social traits, amounting to personality disorder". She discounted the "diagnosis of schizoaffective disorder". Significantly when she prepared her initial report she considered that the most "appropriate diagnosis was of a brief reactive psychosis", but by the time she gave oral evidence she had moved away from that view. Ultimately by the end of her evidence the opinion of Dr Reddan was that the respondent "was in an increasing regressed mental state in the setting of a person with significant personality problems…. But the regressed state combined with personality features could, although having no satisfactory diagnostic label amount to abnormality of mind so as to result in a substantial impairment of control, a conclusion which she would be more satisfied about than deprivation.”

It is clear that Dr Reddan, whose evidence the Mental Health Court accepted, concluded that the respondent suffered from an abnormality of mind with a resulting substantial impairment in the capacity to control his actions.

It is now necessary to consider in some detail the reasoning of the Mental Health Court in arriving at a conclusion that diminished responsibility was established.

The court preferred the views of Dr Sundin and Dr Reddan that the criteria for a diagnosis of schizoaffective disorder were not met. Effectively that involved a rejection of the opinion of Dr Curtis and Dr Fama that the respondent was of unsound mind at the material time.

Next the court considered the question whether the respondent was suffering a brief reactive psychosis at the relevant time; the reasons stated:

"I accept that such a psychosis could amount to a mental illness, but there are difficulties in the way of a finding of unsoundness of mind resulting in a deprivation of capacity, within the meaning of s 27."

The reasoning then went on to identify those difficulties. Clearly the court there was dealing with the issue of insanity. It was said that as it was not a frenzied attack on the deceased, it was "difficult to find a complete loss of the capacity of control". Further, the reasoning went on as follows:

"… the objective evidence is consistent with the defendant's having been paranoid in relation to notions of being deceived and defrauded by his brother, and his father's being complicit in that. It is difficult to see, however, how that mental state, whether it amounts to an overvalued idea or delusion, produced a complete deprivation of the capacity to know he ought not to stab his father."

All of that led to the conclusion that insanity had not been established. The court then turned to diminished responsibility. At the outset it was said:

"While I accept that a brief reactive psychosis is a possibility, given Dr Sundin's and Dr Reddan's ultimate inclination against it, I am not satisfied to the necessary standard that it existed. But that conclusion does not exclude a finding that the defendant was in an abnormal state of mind at the time of the killing."

There then followed in the reasons of the court a recital of the definition of "abnormality of mind" advanced by Lord Parker CJ in R v Byrne [1960] 2 QB 396 at 403; the passage quoted by Jerrard JA in paragraph [51] of his reasons. That passage has been regularly cited in judgments as providing the best indication of the meaning of the phrase in question which is not a medical term. The reference to Byrne was followed by an extract from the observations of Hanger J in R v Rolph [1962] Qd R 262 at 288.

Then, critically for present purposes, the court reasoned and concluded as follows:

"I accept that the defendant did suffer from the personality disorder with paranoid narcissistic traits described by Dr Sundin and Dr Reddan. … It is possible, in my view, that a personality disorder, while not itself amounting to an abnormal state of mind, could be an inherent cause of such a state. … There is, I think, no doubt that the defendant was in an extraordinary mental state at the time of the assaults on his father. He had paranoid ideas … although there is reason to doubt that these crossed the borderline between overvalued ideas and psychosis. Nonetheless this was, in my view, a state of mind beyond an extreme emotional reaction in anger and jealously. Dr Reddan characterised it as an "increasingly regressed mental state in the setting of a person with significant personality problems". It is properly described as abnormal, and as arising from inherent causes. Its roots lay in the defendant's personality disorder, exacerbated by his depression and anxiety, compounded by the stress factors … and manifested in his evident escalating emotional disturbance."

Those findings by the court allowed it to distinguish GMB (2002) 130 A Crim R 187 where Chesterman J, sitting as the Mental Health Tribunal, held that a personality disorder did not constitute an abnormality of mind for purposes of s 304A of the Code. Here it seems to me that the findings of the Mental Health Court, and in particular the acceptance of the evidence of Dr Reddan that the respondent was in an "increasingly regressed mental state", establish an abnormality of mind within the meaning of that phrase in s 304A. The respondent’s personality disorder played a part as a cause of the abnormality of mind, but it was not a case where a personality disorder simpliciter was said to be an abnormality of mind.

It follows that the decision of the court is not inconsistent with the reasoning in GMB.

The validity of the reasoning in conclusion in GMB was not the subject of submissions on the hearing of this appeal. I therefore do not find it necessary to consider the correctness or otherwise of that decision. Suffice it to say that there is force in the reasoning of Fryberg J, and in due course the question will have to be considered by an appellate court after full argument.

Each of the four psychiatrists, whose evidence is summarised above, was of the view that the respondent was suffering from an abnormality of mind, though there was not agreement as to the aetiology of it. Whilst all doctors were of the view the respondent was suffering from an abnormality of mind, different tags were placed on it. That is not surprising given that abnormality of mind is an expression used in the statute and is not a reference to a specific medical diagnosis. Against that background the reasoning of the Mental Health Court was clearly open and supported by evidence. In my view on the evidence a finding that at the material time the respondent was suffering from an abnormality of mind as explained in Byrne was inevitable.

That left for consideration the question whether or not that abnormality of mind substantially impaired one or more of the relevant capacities. The court observed: "This is a difficult matter to determine objectively". The conclusion reached was that there was not "sufficient evidence … to conclude that the defendant's capacity of control was substantially impaired." But the conclusion was reached that there was "substantial impairment in his capacity to know that he ought not to do the acts." In consequence the court found that the abnormal state of mind substantially impaired the capacity to know that the respondent's attacks on his father were wrong.

That conclusion was attacked by the appellant because the evidence of Dr Reddan, which was otherwise accepted, was that the abnormality of mind resulted in a substantial impairment of the capacity to control actions. It was only Dr Curtis and Dr Fama, whose evidence as to the nature of the abnormality of mind was rejected, who concluded that the capacity to know that the attacks were wrong was substantially impaired.

However, I have come to the conclusion that in the circumstances the contention of the appellant must be rejected. Whether or not there is substantial impairment of one of the capacities referred to in the statute is ultimately a legal question relating to the person's responsibility under the criminal law. Ordinarily, medical evidence from psychiatrists will assist the court in determining whether or not a capacity has been substantially impaired. Here all of the doctors were of the opinion that one or more of the capacities was substantially impaired at the material time. It was for the Mental Health Court to determine which capacity, on the evidence, was the relevant one. The court concluded that the capacity of the respondent to know that he ought not do the act was substantially impaired, and it cannot be said that the court was in error in so concluding. It is not to the point to say that the evidence, probably at least as strongly, pointed to a substantial impairment of the capacity to control actions. The fact a particular doctor's opinion as to the nature or aetiology of the abnormality of mind is rejected, does not necessarily involve the rejection of the doctor's evidence as to the impact of the abnormality of mind, whatever its nature or aetiology, on the relevant capacities. It is not uncommon for a tribunal to accept some parts of, and reject other parts of, the evidence of a witness.

The ultimate conclusion, as is evidenced by the formal order made by the Mental Health Court, is that the respondent "was of diminished responsibility when the alleged offence was committed". In my view the court does not have to identify one capacity rather than another in order to arrive at that conclusion. Where the evidence supports, and the finding is made, that the person is in a state of abnormality of mind it would be sufficient, in my view, for the court to conclude that one or other of the capacities was substantially impaired.

Though the respondent in this case did not seek to alter the findings made by the Mental Health Court it is clear beyond doubt, in my view, that, once the finding of a state of abnormality of mind was found, the evidence established a substantial impairment of either the capacity to control actions or the capacity to know that the person ought not do the act.

On a definition of diminished responsibility slightly different to that applicable here, the New South Wales Court of Criminal Appeal has held that medical evidence is not necessarily required in order to enable the tribunal of fact to determine whether mental responsibility for the relevant acts had been substantially impaired: R v Purdy [1982] 2 NSWLR 964 and Re Tumanako (1992) 64 A Crim R 149. In my view it is not necessary to determine in this case whether that is the position under the wording of the Queensland statute; again it was a matter not the subject of argument on the hearing of the appeal. Here there was evidence from the medical specialists on which the Mental Health Court could base its decision.

It follows in my view that the appeal should be dismissed.

JERRARD JA: This is an appeal by the Attorney-General under s 334 in Part 2 of Chapter 8 of the Mental Health Act 2000 (Qld) (“the Act”). The Attorney-General seeks to overturn the finding by the Mental Health Court, in a judgment delivered on 24 May 2006, that Kenneth McDermott was suffering from diminished responsibility as described s 304A of the Criminal Code 1899 (Qld) when he killed his father Kevin McDermott on 31 August 2003. On the appeal Mr Rutledge, counsel for the Attorney-General, ultimately rested on the argument that there was an insufficient basis in the evidence for the Mental Health Court to be satisfied on the balance of probabilities that when he stabbed his father, Kenneth McDermott had a substantially impaired capacity to know that he ought not do that.

Nature of the appeal

The appeal to this Court has previously been described as one by way of a re-hearing on the record before the Mental Health Court. This Court so held in Button v Director of Mental Health & Anor [2005] QCA 67,[1] applying thereby the same test as that previously applied under the Mental Health Act 1974 (Qld), as determined in Kamali v R (1999) 106 A Crim R 269 at 270. However, Fryberg J has drawn to my notice the decision of this Court in Hansen v DPP & Anor [2006] QCA 396, in which the court held the appeal was an appeal in the strict sense. It appears the earlier decision in Button was not cited; the nature of the appeal need not be decided in this one, as it makes no difference.
[1]Appeal No 9202 of 2004, 18 March 2005.

The evidence

The following description of Mr McDermott’s general background and the events leading up to the day of the killing is taken from the judgment under appeal, the descriptions in the psychiatric reports, and the statements of witnesses. Mr McDermott was 37 at the time of the death, and had worked for some years as a jeweller. In 1994 he began a relationship with Julie Settimo, and they built a house in 1998 in the Gold Coast area. In 2001 he seems to have stopped work, sold the house (he complained later that he lost money on it), and then bought a yacht with the proceeds. He had no experience as a sailor. Some time in that year he telephoned his father and was abusive to him. That was his last contact with his father until immediately before the latter’s death.

He eventually sailed the yacht to North Queensland, but at Mission Beach accused Ms Settimo of having an affair, and seriously assaulted her. He was convicted of assault occasioning bodily harm, and a Domestic Violence Protection Order resulted. They remained in contact, and in May 2003 he stayed with her at a unit on the Gold Coast. She said he was exhibiting mood swings and talking about suicide in that time. On accounts of his life given to psychiatrists after the killing, he had bought a large motorcycle and had travelled around for some time unsuccessfully looking for land to buy, after selling the yacht.

On 15 August 2003 he went to a general practitioner, complaining of insomnia due to stress, and was prescribed Temazepam; he returned on 20 August 2003 complaining of being depressed and agoraphobic. He was prescribed the antidepressant Avandza. At some time in August he had met by chance his brother Jeff at a service station, and stayed with him for two nights. On each of those his brother woke to find Mr McDermott standing in the doorway of the bedroom. On 28 August 2003 he returned to Ms Settimo’s unit, and spoke of mistakes he had made in their relationship, in his work, in selling the house, and in his life in general. He seemed very depressed, and at his request she took him to the Gold Coast Hospital, where he was seen by a nurse in emergency. He told the nurse of his inability to buy property, the break-up of his relationship, his unemployment, his lack of social support, and said he had fleeting suicidal thoughts. The next day he seemed more depressed. Ms Settimo thought he was looking for someone to blame for his problems, and he told her that other people had ruined things for him. On 30 August 2003, after he had woken her three times during the night, she told him she could not cope with him anymore and he would have to find somewhere else to live. Eventually he telephoned his father, telling the latter that someone had ruined his life.

It was arranged to for him to come to his father’s rural property north of Brisbane, and he arrived there at about 3:00 pm on 30 August 2003. His step-mother (his father had re-married) noticed that his pupils were dilated, and he appeared to her to have paranoid beliefs about having been “set up about something”, and was “trying to string together an unrelated series of events to try and make a case. It was something about his investment in land.”[2] That evening he told his father that his brother Jeff had what he should have, and that he was going to kill his brother. Ms Settimo telephoned him that night, and he was suspicious about someone who had tried to ring her; he wanted her to come to the property with her children. She agreed to do that, and over the course of the following morning he made a number of calls to tell her to hurry.
[2]Quoted at [2006] QMHC 002 at [10].

On that next morning, 31 August 2003, his step-mother was awoken at about dawn by Mr McDermott calling for his father, but then he seemed to calm a little. Later when agitated he demanded to know how much money his brother Jeff had given his father and step-mother towards the purchase of their new car, and he rejected their denials and explanations that his brother had nothing to do with it. Eventually he assaulted his father outside the house, and his 19 year old step-brother Nathan ran outside the house with a pool cue to intervene, calling out to Mr McDermott to “Leave him the fuck alone”.[3] Mr McDermott replied to the effect “Keep out of this, this is between me and Dad.” He struggled with Nathan over the pool cue, and Mr McDermott said “Don’t you hit me with that”, and words to the effect “Don’t do it otherwise you’re going to get hurt.” When his step-mother also attempted to intervene outside the house, Mr McDermott told her to “Stay out of it, this is between me and Dad.”[4]
[3]At AR 298-299.
[4]At AR 298 and 299.

Things appeared to settle down, so Nathan and his mother went back inside the house. A little later they saw that Mr McDermott had begun to push and punch his father again. Once again Nathan McDermott seized a pool cue and ran out, and Mrs McDermott also went outside. Nathan asked Mr McDermott why he simply didn’t get on his motorbike and leave, and Mr McDermott said words to the effect “I’m not going anywhere without him”, referring to his father, and said that he just wanted to talk to his father; his father said (to Mrs McDermott, and apparently in a soft voice), “He’s gonna kill me.” His father also told Mrs McDermott to take the children and leave, and Mr McDermott said “Leave now or none of youse will leave.”[5] Mrs McDermott ascertained, perhaps out of Mr McDermott’s hearing, that her husband wanted her to call the police, and she took her son Nathan and 16 year old daughter in a car with her, and called the police. Police came to the property but entered it too late to prevent Mr McDermott killing his father, which he did by stabbing him several times. The stab wounds were to the front of the right shoulder, the upper right side of the chest, the upper left side of the back, and the top left side of the skull.
[5]At AR 301.

Mr McDermott’s statement to his step-mother, step-brother, and step-sister, made during the course of the separate assaults he committed on his father on 31 August 2003, suggest that he was self-controlled in his responses to them that morning. At 11:25 am on 31 August 2003 Mr McDermott rang an ambulance, saying, in answer to questions, that a man had been stabbed “a few times” in the arm and chest. His father was still alive then, and is recorded speaking on the phone; he confirmed that he had been stabbed. Mr McDermott identified himself as the son of the victim. The officer taking the call asked if the person who had stabbed the man was still there and Mr McDermott said “They have gone.” When asked if he knew who had stabbed the man, Mr McDermott said “No I don’t”.[6] Mr McDermott gave his name, and in response to further questions said that the offender had left the scene and that he did not know the offender. At 11:37 am he rang back and repeated the description of two stab wounds, one to the chest and “sort of shoulder”, and when being given advice over the telephone on steps to take to prevent his father drowning in his own blood, he complained of “fucking blood everywhere”.[7]
[6]At AR 345, 346.
[7]At AR 354.

Some psychiatric opinions

Those statements made while his father was still alive – his father died after the ambulance arrived – imply that Mr McDermott knew what he had done at that time, and knew that what he had done was wrong. That was the view expressed by the psychiatrist Dr Reddan in her report dated 15 January 2006[8] and she repeated that view in cross-examination.[9] A second psychiatrist, Dr Sundin, also expressed the view in her report dated 7 March 2006 that what the Doctor described as collateral information suggested that Mr McDermott was neither deprived of, nor substantially diminished in, his capacity to understand what he was doing, nor of the capacity to know that he ought not to do the act.[10] Dr Sundin explained in cross-examination that the collateral information to which she referred was Mr McDermott’s responses to his step-mother and step-brother that morning, when they told him to stop attacking his father.[11]
[8]At AR 660.
[9]At AR 113.
[10]At AR 681.
[11]At AR 87, 89, and 90.

Doctors Reddan and Sundin had been requested to provide reports by the Registrar of the Mental Health Court. The learned judge accepted the opinions of those two psychiatrists, namely that Mr McDermott was not suffering from a schizoaffective disorder, nor a brief psychotic episode. But the judge formed a contrary opinion to the ones expressed by those psychiatrists, as to whether the evidence established that Mr McDermott had a substantially diminished capacity at the time of the stabbing to know that he ought not to have done it. The learned judge accepted the view that realisation of the appalling harm Mr McDermott had done to his father may well have had the effect of bringing him to his senses.[12]
[12]At AR 742.

Other opinions by psychiatrists

Mr McDermott had been evaluated over time by a considerable number of psychiatrists through the Prison mental health service (including Drs Schramm, Kingswill, Isailovic, and Van Dan Hoef, over the 12 months from January 2004 to January 2005). The reports by those doctors do not describe any conclusions that Mr McDermott was suffering from a psychosis at the times those doctors examined him, and the written reports of Drs Schramm, Kingswill, and Van Dan Hoef each raise the possibility that at the time each examined Mr McDermott, he was malingering symptoms of past mental illness or psychosis. As against that, Dr Ian Curtis, a psychiatrist who examined Mr McDermott in February 2004 and July 2005, diagnosed a schizoaffective disorder at the time of the killing,[13] and expressed the view in oral evidence that the condition had substantially deprived Mr McDermott of capacity to control his actions, and completely deprived him of the capacity to know that he ought not to do what he had done.[14] A second psychiatrist, a Dr Fama, who examined Mr McDermott in September, November, and December 2004, also concluded that Mr McDermott was experiencing a recurrent schizoaffective disorder at the time of the killings, as well as a delusional state in which Mr McDermott believed that he had been sorely cheated by his brother and threatened by death by his family in general. Dr Fama opined that Mr McDermott had a probably diminished capacity to control his actions, and was deprived of the capacity to know that he ought not to do the acts.[15]
[13]At AR 618-619.
[14]At AR 30.
[15]At AR 720 and 54.

Dr Reddan’s report did not agree with the diagnosis of schizoaffective disorder, and suggested that the most appropriate diagnosis would be that of a brief reactive psychosis. She advised that if the Mental Health Court determined that such a psychosis was a mental disease within the meaning of s 27 of the Criminal Code, then Mr McDermott in her opinion was deprived of the capacity to control his actions, although not of any other capacity. She considered that he had a significant personality dysfunction with paranoid, narcissistic, and anti-social traits, but specifically advised that a personality disorder did not represent a mental disease; nor, in her opinion, an abnormality of mind for the purposes of s 304A. Dr Sundin’s written opinion suggested Mr McDermott suffered a mixed personality disorder of the narcissistic paranoid type, and she thought it possible he had suffered a brief reactive psychosis, in what Dr Sundin described as the larger context of a mixed personality disorder. If he suffered the brief psychosis, she considered that would have the potential to deprive him of the capacity to control his actions, or substantially to diminish his capacity to control them.

In oral evidence Dr Sundin said there was a chance that Mr McDermott may have had a brief reactive psychosis, but she could not rule out the other possibility, namely that this was a rage-filled attack by an angry man. She expressed a preference for the latter diagnosis of a personality disorder with an outburst of rage.[16] Dr Reddan likewise also expressed a preference in the witness box for which she described as an episode of profound narcissistic rage in an aggrieved entitled individual, who had sustained a number of losses and who had a pattern of blaming his father whenever he encountered major difficulties in life, rather than for a diagnosis of a brief reactive psychosis.[17]
[16]At AR 92.
[17]At AR 118, 119.

Views of psychiatrists assisting the judge

In answer to questions asked by Dr Wood, one of two psychiatrists assisting the learned judge, [18] Dr Reddan said:

“I think I’d probably favour that this was an increasingly regressed mental state in the setting of a person with significant personality problems…”[19]

She added that the question was whether there was a point at which he went from being in that regressed state, to being psychotic. She also considered that there was no doubt Mr McDermott was becoming more and more emotionally disturbed. In answer to questions then asked by the learned judge, Dr Reddan said that the regressed state she described “combined with personality features”, but falling short of a brief psychotic episode, would amount to an abnormality of mind within s 304A. She was also confident there was a significant impairment of control.[20]

[18]Under s 382(2) of the Act.

[19]At AR 122.

[20]At AR 133.

Dr Wood later assisted the learned judge with the advice that the conclusion Dr Reddan had expressed when answering his questions, and those of the judge (which Dr Wood said described a person suffering from a personality disorder and experiencing an emotional crisis amounting to an abnormality of mind),[21] were “the safest of the assessments” given to the judge.[22] Dr Lawrence, the second psychiatrist assisting the judge, also accepted that Mr McDermott’s state of mind at the time could be classified as abnormal, although not psychotic; but expressed reservations as to whether his ability to control his behaviour had been substantially impaired.
[21]At AR 136.
[22]This appears at AR 136.

Abnormality of mind

The learned judge constituting the Mental Health Court[23] heard and decided under s 267 of the Act a reference by Mr McDermott’s legal representatives under s 257, of Mr McDermott’s mental condition relating to the offence of murder with which he was charged. Section 267 relevantly provides that the Mental Health Court must decide whether the person the subject of the referral was of unsound mind when the alleged offence was committed; and if not of unsound mind, whether of diminished responsibility. The Mental Health Court decided that Mr McDermott was not suffering from unsoundness of mind at the time he killed his father, but that he was of diminished responsibility. That term is defined in the Dictionary of the Mental Health Act to mean the state of abnormality of mind descried in s 304A of the Criminal Code.
[23]Section 382(1) of the Mental Health Act 2000.

It provides:

“When a person who unlawfully kills another under circumstances which, but for the provisions of this section, would constitute murder, is at the time of doing the act or making the omission which causes death in such a state of abnormality of mind (whether arising from a condition of arrested or retarded development of mind or inherent causes or induced by disease or injury) as substantially to impair the person’s capacity to understand what the person is doing, or the person’s capacity to control the person’s actions, or the person’s capacity to know that the person ought not to do the act or make the omission, the person is guilty of manslaughter only.”

The term “abnormality of mind” is not defined or explained by any statute. An oft-quoted description was given by Lord Parker CJ in R v Byrne [1960] 2 QB 396 at 403:

“‘Abnormality of mind,’...means a state of mind so different from that of ordinary human beings that the reasonable man would term it abnormal. It appears to us to be wide enough to cover the mind’s activities in all its aspects, not only the perception of physical acts and matters, and the ability to form a rational judgment as to whether an act is right or wrong, but also the ability to exercise will power to control physical acts in accordance with that rational judgment.”

There are also the observations of the court in Galbraith v HM Advocate 2002 JC, 1[24] at 19, to the following effect:

“....an individual’s mind may work differently from the mind of a normal person in more than one way and for more than one reason. The abnormality may mean, for example, that the individual perceives physical acts and matters differently from a normal person. In some cases he may suffer from delusions. Or else it may affect his ability to form a rational judgment as to whether a particular act is right or wrong or to decide whether to perform it. In a given case any or all of these effects may be operating and may impair the accused’s ability to determine and control his acts and omissions. The cases of diminished responsibility recognised by the law in the past do indeed involve abnormality of mind of this kind and, therefore, fall within this general description. The law responds in this way, however, because it recognises that the individual is to be pitied since, at the relevant time, he was not as normal people are. There was unfortunately something far wrong with him, which affected the way he acted. By contrast, the law makes no such allowance for failings and emotions, such as anger and jealously, to which any normal person may be subject from time to time. They do not call for the law’s compassion. Rather, we must master them or else face the consequences:

‘...it will not suffice in law for the purpose of this defence of diminished responsibility merely to show that an accused person has a very short temper, or is unusually excitable and lacking in self-control. The world would be a very convenient place for criminals and a very dangerous place for other people, if that were the law.’ (Braithwaite 1945 J.C. at pp. 57-58 per Lord Justice Clerk Cooper).”

[24][2001] ScotHC 45; Appeal No C353 of 1999, 21 June 2001.

Section 304A describes that relevant state of abnormality of mind by reference to its origin or aetiology, and the effect on the individual’s described capacities. Evidence of an individual’s behaviour before and after that person killed another is obviously relevant to deciding whether that person was exhibiting a substantial impairment of one or more of those capacities, by reason of that state of abnormality of mind.

General findings

The learned judge was not satisfied on the balance of probabilities that Mr McDermott was suffering at the relevant time from a schizoaffective disorder, (the opinion expressed by Drs Curtis and Fama), and was also not satisfied that he was suffering a brief reactive psychosis. The judge found that Mr McDermott suffered from a personality disorder with paranoid narcissistic traits, and while accepting that a personality disorder did not itself amount to an abnormal state of mind, concluded that it could be an inherent cause of such a state. The judge found that Mr McDermott was in an extraordinary mental state at the time he assaulted and killed his father, experiencing paranoid ideas as to what he believed was collusion between his father and his brother, whom he believed had cheated him; and that his state of mind which went beyond an extreme emotional reaction in anger and jealousy. The learned judge considered it was properly characterised as an abnormal state of mind, arising from inherent causes; its roots lay in the defendant’s personality disorder, exacerbated by his depression and anxiety, compounded by stress factors and manifested in his evident escalating emotional disturbance. Finally, the judge found that that abnormality substantially impaired his capacity to know that his attacks on his father were wrong.[25] Mr Rutledge ultimately challenged only that last conclusion on the appeal.
[25]Re Kenneth John McDermott [2006] QMHC 002 at [50]-[52]; No 46 of 2005, 24 May 2005.

The Attorney-General’s written submission suggested that the learned judge’s reasons had elevated a personality disorder to an abnormality of mind, which step the Attorney-General submitted to be an error. But on the hearing of the appeal Mr Rutledge submitted that the Attorney-General would much prefer that that issue (of whether a personality disorder could, of itself, constitute an abnormality of mind) be determined by this Court only on an appeal from a decision of the Mental Health Court in which the point had been fully discussed between psychiatrists, which Mr Rutledge said had not happened in the instant matter. In any event, the learned judge did not conclude that Mr McDermott’s personality disorder itself amounted to an abnormality of mind, but did conclude that it could be an inherent cause of such a state. The judge noted that in GMB (2002) 130 A Crim R 187,[26] in which Chesterman J had held that a personality disorder could not amount to an abnormality of mind for the purposes of s 304A, that learned judge did appear to accept in his decision that, had the effects of sexual abuse been superimposed on that defendant’s personality disorder, a finding of an abnormal mental state would have been open. On this appeal the Attorney-General did not challenge the conclusion by the judge that a personality disorder could be an inherent cause of a state of abnormality of mind, and so considerably limited the attack on the judge’s ultimate finding. That approach by Mr Rutledge makes it unnecessary for this Court to consider the opinions expressed in R v Dietschmann [2003] UKHL 10 (in which the House of Lords assumed or accepted that an adjustment disorder could constitute an abnormality of mind), or the opinions in Galbraith v HM Advocate 2002 JC 1, R v Fenton (1975) 61 Cr App R 261, R v Adams [2001] 126 A Crim R 264[27] and R v Tumanako (1992) 64 A Crim R 146 at 152, 163 and 164.
[26][2002] QMHT 1.
[27][2001] NSWSC 1042, 23 November 2001.

The learned judge concluded that very little weight could be attached to Mr McDermott’s self-reporting on his mental state, it being clear from the prison psychiatric notes and reports that there was an element of malingering and retrospective elaboration by Mr McDermott. There was accordingly very little reliable evidence of any earlier psychotic episodes. That fact reinforced a preference the judge expressed for the views of Drs Sundin and Reddan, that the diagnostic criteria for a schizoaffective disorder had not been met. The judge accepted that a brief reactive psychosis, which had also been suggested, could amount to a mental illness, but preferred the views of Drs Reddan and Sundin that, on balance, that was not the correct diagnosis; and while it was a possibility, the judge was not satisfied to the necessary standard that it existed.

Mr Rutledge complained of the findings made by the learned judge that Mr McDermott was in an extraordinary state at the time of the assaults on his father, experiencing paranoid ideas as to collusion between his father and brother, and described by Dr Reddan as an increasingly regressed mental state in the setting of a person with significant personality problems, and one properly described as abnormal and arising from inherent causes. Those inherent causes were Mr McDermott’s personality disorder, exacerbated by his depression and anxiety, and compounded by stress factors. However, Mr Rutledge did not really pursue criticisms of those conclusions, although he submitted that Dr Reddan’s opinion in support of them had been given late in the hearing, and that none of the other psychiatrists who gave evidence had had an opportunity to comment on them. That is true, but the two psychiatrists who were assisting the learned judge each accepted the description by Dr Reddan of an abnormality of mind existing at the time, as a result of the regressed state Dr Reddan described. I consider the conclusion that an abnormality within the meaning of s 304A was established was open to the learned judge.

Mr Rutledge argued that the finding relying on Dr Reddan’s description of a “regressed” state was unsatisfactory, because Dr Reddan was the last psychiatrist to give evidence, and neither Drs Curtis, Fama, or Sundin had the opportunity to comment on Dr Reddan’s opinion. But Drs Fama and Curtis had each concluded that there was a full-blown psychosis, and Dr Sundin had already said the opposite. Mr Rutledge complained that neither Dr Reddan nor the learned judge (nor Drs Wood or Lawrence) assisted by describing what a “regressed” mental state is, but it seems obvious enough that Dr Reddan meant an increasingly worsening mental state moving towards psychosis. In the Mental Health Court there were appearances by counsel for each of the Director of Public Prosecutions, the Director of Mental Health, and for Mr McDermott. None of those counsel queried the term, or wanted any witnesses recalled. (Dr Reddan had explained in her evidence-in-chief, when describing a brief reactive psychosis, that some people conceptualized those more as marked regressions of a mental state rather than true psychoses; and that by regression she meant a return to a type of infantile state. In this particular case, she said, that would be an infantile rage.)

The point Mr Rutledge did press was that the learned judge had not accepted the opinions of Drs Fama and Curtis as to the existence of a schizoaffective disorder, yet they were the only psychiatrists who described the existence of a lost or substantially diminished capacity to know that what Mr McDermott was doing was wrong. The judge had accepted the opinions of Dr Reddan and Sundin, but not their conclusions that Mr McDermott did know what he was doing was wrong. The judge also did not accept Dr Reddan’s opinion that Mr McDermott was substantially deprived of his capacity to control his actions. The judge had concluded that:

“I do not think there is sufficient evidence as to what was going on between father and son at the time Mr McDermott senior received the fatal injuries to conclude that the defendant’s capacity of control was substantially impaired.”[28]

[28][2006] QMHR 002 at [52].

The judge then went on:

“But his behaviour and statements in the lead-up to the killing, as verified by Mrs McDermott and Nathan McDermott and his profound and odd beliefs that he had been wronged, do point to a substantial impairment in his capacity to know that he ought not to do the acts. I do not think the defendant’s statements to the emergency services operator precludes that conclusion. I accept the view that realisation of the appalling harm he had done to his father may well have had the effect of bringing him, to some extent to his senses. Accordingly I am satisfied, on the balance of probabilities, that the defendant’s abnormal state of mind substantially impaired his capacity to know that the attacks on his father were wrong.”[29]

[29]At AR 742, in [52] of the reasons for judgment.

Dr Curtis said in evidence-in-chief that because Mr McDermott had stopped the knife attack on his father after four blows with the knife, and when his father was still alive, that he had therefore at some point in the attack controlled himself. For that reason Dr Curtis had, as the Doctor described it, “settled” on the loss of the capacity to know that he ought not to stab his father.[30] Dr Curtis suggested in cross-examination that the rational and calm responses made to the ambulance officer was perhaps an “island” of behaviour; Dr Fama suggested in his evidence that after the attack Mr McDermott had suddenly realised with horror what he had done, and had set about to remedy it by calling the ambulance.[31] Dr Fama therefore remained of the opinion that Mr McDermott would have been deprived of the capacity to know he ought not to attack his father right throughout the various assaults, including those with a knife.[32]
[30]At AR 9.
[31]At AR 65.
[32]At AR 63-64.

In this matter the learned judge constituting the Mental Health Court drew conclusions based on accepting parts of the opinion evidence given by psychiatrists whose opinions the learned judge, as to other parts, did not accept. That is, the judge accepted some of the opinion evidence expressed by, for example, Dr Fama, but not all. The judge was entitled to do that, and was not obliged to accept or reject the various opinions expressed by each psychiatrist in their entirety. It is significant that three of the four experienced psychiatrists who gave opinion evidence accepted that Mr McDermott, at the time he stabbed his father, was (at the very least) substantially impaired in either his capacity to control his actions, or his capacity to know that he ought not do as he did. Each psychiatrist gave reasons for the views respectively held and was cross-examined on them. Dr Wood, one of the two psychiatrists assisting the learned judge, advised the judge in favour of accepting Dr Reddan’s views, and reminded the judge that those views included that Mr McDermott suffered substantial impairment. Dr Wood did not specify the capacity, although Dr Reddan had; Dr Lawrence was unconvinced as to “substantial” impairment.

The judge constituting the Mental Health Court gave reasons for the conclusion that the abnormality of mind (established by the evidence), deriving from the inherent cause described, had substantially impaired Mr McDermott’s capacity to know that he ought not to stab his father. Those reasons appear at [52] of the judgment in that Court, and are repeated in the judgment of Fryberg J in this appeal. Fryberg J is correct in his observation, and Mr Rutledge correct in his submissions, that the learned judge did not – and indeed could not – have relied on an opinion expressed by any of the medical witnesses, when reaching the conclusion that the abnormality of mind, arising as described, had substantially impaired that capacity. An abnormality of mind of course can exist without substantial or any impairment of the any of the three nominated capacities, and it is a question of fact whether an abnormality established to the satisfaction of the Mental Health Court, (or jury), found to have arisen from one of the three prescribed causes, had substantially diminished any of the critical capacities.

In R v Purdy [1982] 2 NSWLR 964 Glass JA wrote that it was not necessary that expert evidence standing alone should be capable of establishing all three ingredients of the defence (of diminished responsibility).[33] The learned judge’s reasoning clearly treats expert evidence as normally necessary to establish the ingredient of an abnormality of mind at the critical time, and the second element of the defence, namely whether that abnormality was due to one of the specified causes. But His Honour went on:

“If the first and second ingredients of the defence are supported by evidence but not the third, I consider that the judge could leave to the jury with proper instruction the question whether his responsibility was substantially impaired for the reason that impairment of responsibility to a substantial extent is a legal and not medical concept.”[34]

Maxwell J agreed with Glass JA; Roden J, in a separate judgment, focused on the issue of the aetiology of the abnormality of mind.

[33]At NSWLR 966.

[34]At NSWLR 966.

The judgment of Glass JA in R v Purdy was quoted with approval by Badgery-Parker J in Tumanako v R (1992) 64 A Crim R 149 at 160, where His Honour wrote:

“The first two elements in the defence must be established by evidence; but where there is evidence fit to go to the jury that the accused was suffering an abnormality of mind, and that that abnormality of mind resulted from one of the specified causes, the question whether his mental responsibility was thereby substantially impaired may be left to the jury although there is no evidence directly bearing on that issue: Purdy, per Glass JA (at 966; 126).”

His Honour added a little later (at p160):

“Because the existence of the first and third elements are matters for determination by the jury being matters of degree not capable of scientific measurement, and the jury is entitled to approach them in a broad commonsense way and not necessarily in accordance with the medical evidence, on neither issue is the jury bound to accept the medical evidence if there is other material before it which in the judgment of the jury, conflicts with it and outweighs it.”

(I add that His Honour expressed the view that regarding the second element of the defence, the aetiology of the abnormality of mind, that that was a matter which must be determined by expert evidence.)

Clark JA agreed with the reasons and orders of Badgery Parker J in Tumanako, and Gleeson CJ (as His Honour then was), in a shorter concurring judgment, did not disagree with those observations. They support the course followed by the judge constituting the Mental Health Court in this matter, namely of reaching conclusion as to the first two elements of the defence, based on opinion evidence accepted by the judge, and reaching a conclusion on the third, critical element on the judge’s view of the evidence, including the medical evidence. I consider the conclusion the judge reached was supported by the evidence to which the judge referred. That conclusion was to the only one finally challenged – not the conclusion (based on the medical and other evidence) of a state of abnormality of mind, derived from one of the described causes. It follows that I agree with the view of Glass JA.

Further, the Mental Health Act 2000 does not require that the Mental Health Court specify the capacity which has been substantially diminished. Where abnormality of mind is acknowledged, different opinions as to the capacity substantially diminished can reflect matters of classification, while accepting there was a substantial impairment of at least one of the three specified capacities. Those three capacities are not mutually exclusive, and in a matter of this nature, reasonably held views can differ as to nominated capacity substantially diminished, while agreeing there was a substantial impairment of a least one of them.

For these reasons I come to a different conclusion, on whether the Mental Health Court could find diminished responsibility, from that reached by Fryberg J, whose thoughtful and carefully reasoned and researched judgment is a valuable contribution to this area of law. The Mental Health Court was required to decide if Mr McDermott was of diminished responsibility when he stabbed his father, not which capacity or capacities were substantially diminished. Where the evidence supports a view that one or other, or both, of two of the identified capacities were substantially diminished by a state of acknowledged abnormality of mind, this Court should not overturn a conclusion of diminished responsibility because of disagreement between the Mental Health Court and the witnesses it accepts, as to which of the capacities was diminished.

One of the two issues referred to the Mental Health Court, and which it was obliged to decide, was whether Mr McDermott was of diminished responsibility when he committed what would otherwise have been murder. On the evidence described and with the assistance given to the judge, it was open to the learned judge to conclude that he was. I would not have reached that conclusion, and would have left it to a jury, but it was certainly a decision a jury could reach, and the judge carefully considered all the relevant evidence and advice in reaching the decision. The remarks in the joint judgment in Fox v Percy (2003) 197 ALR 201 at [26] to [27][35] do not require that, on an appeal by way of re-hearing on the record, an error is shown and a judgment must be reversed on appeal when the judgment reached was an available conclusion, although not what the appeal judges may have held. Counsel for the Attorney-General is correct in making the point, on the appeal, that in specifying the substantially diminished capacity in the reasons for judgment, the learned judge had reached conclusions similar or identical to those reached by psychiatrists Drs Curtis and Fama, whose reasoning and diagnosis leading to that conclusion was not accepted by the judge, but the learned judge was not in error in doing that.
[35](2003) 214 CLR 118; [2003] HCA 22.

Mr Rutledge argued that the judge was in error because the findings of diminished responsibility were based on conclusions which he contended were much in contest and accordingly uncertain. Mr Rutledge referred to the statement in R v Schafferius [1987] 1 Qd R 381 at 383, namely that the Mental Health Court should proceed to a finding only in clear cases, and only in reliance on clear and convincing evidence. That is so, but equally in Kamali this Court wrote:

“Schafferius should not be read as excluding a finding in all but the clearest of cases. Certainly the gravity of such proceedings warrants the [Court] exercising caution. But if the judge constituting the [Court] is sufficiently satisfied that there is evidence which, if accepted, would warrant the finding, and believes that the evidence should be accepted, then the finding should be made, notwithstanding that there may be other contrary evidence in the case which the judge is disinclined to accept.”[36]

[36](1999) 106 A Crim R 269 at 273 at [9].

The ultimate finding by the learned judge, that Mr McDermott was suffering from diminished responsibility as that state is described in s 304A of the Criminal Code at the time of the killing of his father, was open to the judge on the evidence which the judge both accepted and rejected, and this appeal should be dismissed. I would order that the decision of the Mental Health Court is confirmed; and I also think it sufficient if the parties are identified as Mr McDermott and the Attorney-General, without specifying the individual who occupies the latter office. The appeal is bought by the office holder in an official, not personal, capacity.

FRYBERG J: On 31 August 2003, at the age of 37, Kenneth McDermott killed his father. For that he was charged with murder. He was committed for trial in the Supreme Court on that charge on 17 August 2004. On 18 March 2005 his then solicitors referred his mental condition to the Mental Health Court. That court heard the reference over two days, 11 and 21 April 2006. It gave judgment on 24 May 2006. It decided that Mr McDermott was not of unsound mind but was of diminished responsibility when the alleged offence was committed. It also decided that he was fit for trial. It ordered that the proceedings against him be discontinued, but that proceedings might be continued against him for another offence constituted by the act or omission to which the proceedings for the offence of murder relate. The then Attorney-General appealed to this Court against that judgment on 19 June 2006. The appeal was heard on 2 November 2006. By the time Mr McDermott is brought before a jury, probably four years will have elapsed from the date of the offence. That delay is unacceptable. It suggests that something is seriously wrong with the system for handling such cases.

The appellant

The appellant was invested with the power to appeal to this Court by s 334 of the Mental Health Act 2000 (“the Act”). That power was conferred on her as the holder of the office of Attorney-General. After the appeal was instituted she resigned from that office and Kerry Gerard Shine was appointed in her place. Presumably her power to maintain the appeal thereupon lapsed, but that power may be exercised by the person for the time being occupying the office of Attorney-General.[37] Subject to the filing of an appropriate consent, there should be an order that Kerry Gerard Shine be substituted as appellant herein.[38]
[37]Acts Interpretation Act 1954, s 23(2).
[38]Uniform Civil Procedure Rules r 69.

The nature of the appeal

In framing their submissions, the parties proceeded on the assumption that it made no difference in the circumstances of this appeal whether the appeal was an appeal in the strict sense or an appeal by way of rehearing. That involved a tacit acceptance of the view that the power of the Court to draw inferences and to make or reverse findings of fact is as wide in the former type of appeal as it is in the latter. I am not aware of any reason to doubt the correctness of that assumption.[39] There are practical reasons why we should proceed upon it: to go behind it would involve a consideration not only of the power of the Court of Appeal in hearing an appeal in the strict sense, but also of the nature of the appeal to this Court under the Act. In cases under the predecessor of the Act it was assumed that the appeal was by way of rehearing.[40] On the other hand a recent dictum in this Court suggests that the appeal may be an appeal in the strict sense.[41] The appeal appears not to be covered by
[39]In saying that I have not overlooked the existence of dicta in some of the older cases which suggest that in an appeal stricto sensu, a finding of fact will be reversed only if the tribunal at first instance has “plainly” or “clearly” fallen into error: see for example Turnbull v New South Wales Medical Board [1976] 2 NSWLR 281 at p 297; B v Minister for Family and Community Services [1992] SASC 3575.
[40]Attorney-General v Kamali [1999] QCA 219; (1999) 106 A Crim R 269; Button v Director of Mental Health[2005] QCA 67.
[41]Hansen v Director of Public Prosecutions [2006] QCA 396 at para [11].
[42]Rule 745(2).
r 765 of the Uniform Civil Procedure Rules[42] and if that is so, the parties might wish to apply for directions under s 336 of the Act. It would be inappropriate to embark upon these questions without hearing argument from the parties. We should resolve the appeal by adopting the assumption made by them.

The decision under appeal

The decision[43] challenged in the appeal is that Mr McDermott was of diminished responsibility when the alleged offence was committed. As a respondent Mr McDermott supported that finding in argument before us. The Director of Mental Health made no submissions and abided the order of the Court.
[43]The end result of the proceedings in the Mental Health Court was a “decision”: see s 267(1)(b) of the Act.

Diminished responsibility is the state of abnormality of mind described in s 304A of the Criminal Code:[44]

“304A Diminished responsibility
(1) When a person who unlawfully kills another under circumstances which, but for the provisions of this section, would constitute murder, is at the time of doing the act or making the omission which causes death in such a state of abnormality of mind (whether arising from a condition of arrested or retarded development of mind or inherent causes or induced by disease or injury) as substantially to impair the person’s capacity to understand what the person is doing, or the person’s capacity to control the person’s actions, or the person’s capacity to know that the person ought not to do the act or make the omission, the person is guilty of manslaughter only.”
[44]See sch 2 of the Act.

The Attorney-General's submissions

The Attorney’s basic submission was “that the finding of diminished responsibility was based on conclusions which were so much in contest and uncertain that the court could not have been satisfied, on the balance of probabilities, of the availability of the defence.” That submission was related first to the issue of whether at the relevant time the respondent was in a state of abnormality of mind; and second, if so, to the issue of whether that abnormality substantially impaired at least one of the relevant capacities. As it was developed in argument in relation to the first issue, it contained two subsidiary propositions. The first was that a personality disorder could not amount to a state of abnormality of mind within the meaning of s 304A of the Criminal Code. The second was that on the evidence before the Mental Health Court it was not possible to conclude on the balance of probabilities that at the relevant time Mr McDermott suffered from an abnormality of mind, regardless of whether a personality disorder was capable of causing or contributing to such a state.

R v Schafferius

In support of the Attorney’s basic submission, reliance was placed on what was described as the principle stated in R v Schafferius:

“[T]he Tribunal [now Court] should proceed to a finding only in clear cases … it is not intended to be a substitute for a criminal trial, although in appropriate cases it will render a criminal trial unnecessary.”[45]

That submission is in my judgment misconceived. I shall endeavour at the outset to show why that is so, in order that Schafferius may be put aside from further consideration.

[45][1987] 1 Qd R 381 at p 383.

Schafferius was decided under the now-repealed Mental Health Services Act 1974-1984 (“the 1984 Act”). In 1984 amendments to that Act provided for the creation of the Mental Health Tribunal. One duty conferred on the Tribunal was to “inquire and determine whether the person [referred to it] was, at the time the alleged offence was committed, suffering from unsoundness of mind”.[46] The amendment did not specify a standard of proof of this question and the correct standard was in issue in the appeal. The effect of a finding of unsoundness of mind was liability to detention as a restricted patient.[47] Importantly, it was Schafferius, the alleged offender, who contended that he was not of unsound mind. The Court of Criminal Appeal held that the standard was proof on the balance of probabilities, on the basis that, having regard to the consequences of a finding of unsoundness of mind, the proceeding was “at the ‘grave’ end of the Briginshaw principle”. Thomas J wrote:

“Indeed, in cases where it seems that the facts are so in dispute that it would be unsafe to make a determination the Tribunal is required to stay its hand (s. 33(2)). This is consistent with the view that the Tribunal should proceed to a finding only in clear cases, and that it is not intended to be a substitute for a criminal trial, although in appropriate cases it will render a criminal trial unnecessary. Quite often the precise details of the alleged crime will be critical to the assessment of the alleged offender's mental condition at the relevant time, and if those details are in any way in dispute the only way to resolve them is by the adversarial scrutiny of a criminal trial before a jury.”[48]

[46]Section 33(1)(a).

[47]Section 35.

[48][1987] 1 Qd R 381 at p 383.

That dictum was explained in a subsequent case under the 1984 Act. In that case, the Court wrote:

“Mr Byrne submitted that there was no ‘clear and convincing evidence’ (R v. Schafferius [1987] 1 Qd.R 381, 383) sufficient to base the finding of unsoundness of mind. The standard of proof in these matters is on the balance of probabilities with the Briginshaw qualification, as confirmed in Schafferius. Schafferius should not be read as excluding a finding in all but the clearest of cases. Certainly the gravity of such proceedings warrants the Tribunal’s exercising caution. But if the judge constituting the Tribunal is sufficiently satisfied that there is evidence which, if accepted, would warrant the finding, and believes that the evidence should be accepted, then the finding should be made, notwithstanding that there may be other contrary evidence in the case which the judge is disinclined to accept.”[49]

Even under the 1984 Act, that would deny the approach urged on behalf of the Attorney.

[49]Attorney-General v Kamali [1999] QCA 219 at para [9]; (1999) 106 A Crim R at p 273.

Section 33(2) of the 1984 Act provided:

“If in a reference made to it the Mental Health Tribunal is of the opinion that the facts are so in dispute that it would be unsafe to make a determination such as is referred to in provision (a) or (b) of subsection (1), it shall refrain from making the determination ….”

The provisions of the Act are different. First, it expressly provides that a matter to be decided by the Court must be decided on the balance of probabilities.[50] Second, only two situations are specified as occasions when the Mental Health Court must not make a decision as to whether the person the subject of the reference was of unsound mind. These are, first, if the Court is satisfied that there is reasonable doubt the person committed the alleged offence (but it may make a decision if the doubt exists only as a consequence of the person's mental condition);[51] and second, if it is satisfied a fact that is substantially material to the opinion of an expert witness is so in dispute it would be unsafe to make the decision.[52] It is apparent from a comparison of those provisions that the ambit of the Court's fact-finding obligations is much wider than was that of the Tribunal.
[50]Section 405.
[51]Section 268.
[52]Section 269.

There is another important difference between the two Acts. As mentioned above, under the 1984 Act the effect of a finding of unsoundness of mind was liability to detention as a restricted patient. Under the Act the alleged offender may elect to be brought to trial despite a finding of unsoundness of mind by the Court.[53] At the same time there is a relevant similarity: both Acts provided for the proceedings to be continued according to law in the absence of such a finding.[54]
[53]Section 311.
[54]Mental Health Services Act 1974-1984, s 33(3); Mental Health Act 2000, s 272.

These differences are relevant in considering whether the dictum quoted above can be applied to proceedings under the Act. From the point of view of the alleged offender (which was the context of the quoted passage), it is even more clear under the Act than it was under the 1984 Act that proceedings in the Court are not intended to be a substitute for a criminal trial. On the other hand, because the alleged offender can challenge a finding of unsoundness of mind by requiring a trial before a jury, there is no reason to qualify the standard of proof by regarding the proceeding as being at the grave end of the Briginshaw principle. The plain words of s 405 of the Act should therefore be given effect. The Court should proceed to a finding if it is able to do so on the balance of probabilities, except in the circumstances set out in ss 268 and 269 of the Act.

It is true that the position of the Crown is different. Like its predecessor, the Act gives the Crown no explicit right to challenge the finding of the Court, save by an Attorney's appeal. If proceedings are continued under s 272 by reason of the absence of a finding of unsound mind, or if an alleged offender elects to be brought to trial under s 311, there appears no reason why the Crown should not adopt a position at odds with the finding of the Court. However the Crown has no right to demand a criminal trial where an alleged offender is content with a finding of unsoundness of mind by the Court. That does not warrant a different approach to the standard of proof, whether in respect of a finding adverse to the Crown or otherwise. Indeed, I doubt if a different approach is conceptually possible. The Court is either satisfied of unsoundness of mind on the balance of probabilities or it is not.

I have referred so far to unsoundness of mind because that was the issue in Schafferius. However it is not the issue in the present case. Here the Court was concerned with diminished responsibility. None of the consequences which drove the decision in Schafferius ensues under the Act in relation to diminished responsibility. For this reason also, the dicta relied upon by the Attorney are not of assistance.

The respondent’s background and the circumstances of the killing

As the Mental Health Court noted, Mr McDermott's history, particularly in the two years or so before the killing, assumed particular importance for the examining psychiatrists. For that reason her Honour set it out in some detail. Her statement of that history was unchallenged and it is appropriate to repeat it in full:

“In 1994, the defendant began a relationship with Julie Settimo and the two of them built a house in the Gold Coast area. From 2001 onwards, their relationship fluctuated. In that year the house was sold and the defendant bought a yacht with the proceeds; these transactions seem to have become a considerable preoccupation with him. Somewhere in this period, according to the statement of Mrs Moya McDermott, the defendant’s stepmother, he telephoned his father and was abusive to him. After the call was concluded, Kevin McDermott told his wife that the defendant had threatened his life. That was the defendant’s last contact with his father until the events leading to the latter’s death.
[5] The defendant sailed the yacht he had bought north up the Queensland coast in mid-2002, joined en route by Ms Settimo. At Mission Beach, the defendant, in a state of intoxication, accused Ms Settimo of having an affair with someone else. She says that he started to strangle her, and hit her over the head. Her two young sons persuaded him to stop and eventually police arrived; an assault charge and a domestic violence protection order resulted. However the two remained in contact, and in May 2003 the defendant stayed with Ms Settimo at a unit she had rented back on the Gold Coast. She describes him as exhibiting mood swings and talking about suicide in this period.
[6] On 15 August 2003 the defendant attended a general practitioner, complaining of insomnia due to stress. He was prescribed Temazepam. He returned on 20 August 2003, saying that he was depressed and was agoraphobic. On this occasion the doctor prescribed an anti-depressant, Avanza.
[7] At some point in late August, the defendant went off to find a place of his own and met, fortuitously, his brother Jeff McDermott at a service station on the highway. The two had had bad relations in the past. Some two years prior they had done some work together. According to Jeff McDermott, his brother had got the idea that he had ‘ripped him off’ and assaulted him, saying that he wanted to kill him and wanted to take his business. In August 2003, however, their encounter seemed amicable. Jeff McDermott invited the defendant back to his house where, apart from the fact that the defendant asked a lot of questions about his finances, there seemed nothing unusual about the conversation. But Jeff McDermott woke in the early hours of the morning to see the defendant standing in the doorway of his bedroom. He asked what he wanted and the defendant replied that he was just seeing if he was asleep. The defendant stayed the next night also; that evening he told his brother that he had made a loss of $100,000 on the sale of his house. Again that night the defendant appeared twice at the door of Jeff McDermott’s bedroom. The following morning the defendant departed, saying he was going to look for land in the Bundaberg area.
[8] On 28 August, the defendant returned to Ms Settimo’s unit, where he began to talk about the mistakes he had made with their relationship, his work, selling his house and life in general. Because he seemed very depressed, she took him to the Gold Coast Hospital where he was seen by a nurse in the emergency department. He told the nurse, Ms Mexted, that he had recently been commenced on an anti-depressant but had been ‘non-compliant mostly’ in taking it. Ms Mexted said that he maintained eye contact but his speech was slurred and monotonous, which might have been a product of his having taken the anti-depressant medication that evening. He identified a number of stressors: his inability to buy property on the Gold Coast, the break up of his relationship, unemployment and lack of social support. His thought content was logical and there was no evidence of any hallucination or delusion. He said that he had fleeting suicidal thoughts but no plan. The nurse suggested counselling.
The twenty-four hours leading up to the killing
[9] Ms Settimo observed that on the following day the defendant was becoming more and more depressed. He was looking for someone to blame for his problems; he told her that other people had ruined things for him; and he was causing her some alarm. On 30 August she told him that she could not cope with him anymore and he would have to find somewhere else to live. She heard him trying to telephone members of his family and eventually speaking to his father, telling him that someone had ruined his life and was to blame for his problems.
[10] A picture of what happened between father and son in the 24 hours preceding Kevin McDermott’s death emerges from the statement of his wife, Moya McDermott. She says that in the morning of 30 August her husband spoke to his son on the telephone. It was arranged that the defendant would come to the McDermotts’ property, in a rural area north of Brisbane, that day. He arrived at about 3pm. Mrs McDermott observed that he appeared calm, although his pupils were dilated. She heard something of the conversation between father and son. She was unable to be precise, but she recalled that ‘Ken seemed paranoid about being set up about something. [He] was trying to string together an unrelated series of events to try and make a case. It was something about his investment in land.’ In the evening her daughter (the defendant’s half-sister) arrived with her boyfriend. They remained for about two hours. After their departure the defendant continued his conversation with his father and with Mrs McDermott. In the course of it, he asserted that his brother Jeff had caused his problems, saying, ‘Jeff has what I should have and it should be mine and I’m going to kill him.’
[11] That night, Ms Settimo telephoned the defendant. He exhibited some suspicion about someone who had tried to ring her (although he seems to have satisfied himself by ringing the number that the caller was innocuous) and told her she should come to the property with her sons. Over the course of the following morning, he made a number of calls to her to hurry her on her way.

For the sake of completeness I note that the passage quoted continues (in the Text Revision of the DSM-IV):
“The pattern is stable and of long duration, and its onset can be traced back at least to adolescence or early adulthood. The pattern is not better accounted for as a manifestation or consequence of another mental disorder and is not due to the direct physiological effects of a substance (e.g., a drug of abuse, medication, exposure to a toxin) or a general medical condition (e.g., head trauma). Specific diagnostic criteria are also provided for each of the personality disorders included in this section.”[115]
[115]DSM-IV (TR), p 686.

The Manual lists 11 distinct personality disorders:
·Paranoid
·Schizoid
·Schizotypal
·Antisocial
·Borderline
·Histrionic
·Narcissistic
·Avoidant
·Dependent
·Obsessive-compulsive
·Disorder not otherwise specified.

Is it correct that there are reasons in legal policy why such a condition should never be capable of constituting or contributing to an abnormality of mind for the purposes of s 304A? It might be argued that as a matter of legal policy the law should exclude factors the creation or continuation of which could have been prevented or minimised by the accused. However unlike the excluded factors described by Thomas J in Whitworth, a personality disorder may affect a person independently of his or her will or even despite it. It might be argued that as a matter of legal policy the law should exclude factors easily faked. The diagnostic requirement of a stable pattern of long duration with its onset traced back at least to adolescence or early adulthood suggests that most personality disorders are not in that category. It might be argued (as Mr Rutledge submitted in the present case) that if a personality disorder could constitute or contribute to an abnormality of mind, a large proportion of the criminal population (a group which notoriously suffers from personality disorders) would have defence; so that to prevent the opening of the floodgates, personality disorders should be excluded. However that overlooks the fact that diminished responsibility is available as a defence only to murder, an offence not committed by most of the criminal population. Doubtless there are other arguments which might be advanced; but none was in the argument before us.

The fact that with one partial exception no such policy has been applied in any other jurisdiction (or if it has, again, we were not referred to it) is significant. It is unnecessary to consider whether Queensland should adopt the Scottish exclusion of antisocial personality disorder (psychopathy), as that disorder is not suggested in the present case. However I note in passing that the Court in Galbraith did not specify the legal policy to which it referred, and in Carraher v H M Advocate,[116] the case which the Court stated it was following, the reasons for the exclusion are unconvincing.[117]
[116](1946) JC 108.
[117]See the discussion in Scottish Law Commission: Report on Insanity and Diminished Responsibility, para 3.26 (2004).

In my judgment it is not the law that a personality disorder can never constitute or contribute to an abnormality of mind for the purposes of s 304A. It must always be a question of fact whether a particular disorder either alone or in combination with other factors gave rise to that state of mind. The question is necessarily one of degree and (subject to what follows below[118]) the jury is entitled to approach it in a broad commonsense way and not necessarily in accordance with medical evidence.[119]
[118]Paragraph [142].
[119]See paragraph [114].

Conclusion on abnormality of mind

Was the respondent in a state of abnormality of mind at the relevant time? In my judgment he was. That conclusion is based on the features of his personality disorder described by Dr Sundin and Dr Reddan, his behaviour, statements and beliefs as verified by Mrs McDermott and Nathan McDermott (and accepted by her Honour)[120] and the advice given to the court below by the assessors who sat with her Honour. Dr Wood advised that the safest of the assessments was that of Dr Reddan (which was that the respondent's condition could be described as abnormality of mind) and Dr Lawrence said, in giving her advice, “Certainly, it seems that Mr McDermott was not in a normal state of mind; therefore, at the time, one would have to accept that it could be classified as an abnormality of mind.” It may also confidently be assumed that neither Dr Curtis nor Dr Fama would have testified that at the relevant time the respondent was not in a state of abnormality of mind.
[120][2006] QMHC 2 at para [52].

For these reasons the finding of the Mental Health Court on this aspect of the case was correct.

Substantial impairment of a relevant capacity

It is convenient at this point to summarise the evidence of the four psychiatrists who addressed the question of diminished responsibility, and also the advice of the assisting psychiatrists. To the extent that this summary goes beyond what is contained in her Honour's summaries above, it is drawn directly from the evidence.

Dr Curtis

Dr Curtis diagnosed a schizoaffective disorder at the relevant time.[121] He thought it difficult to determine the cause of that condition, but conjectured that it would include some genetic and environmental causation.[122] The disorder brought about a paranoid delusional view of the world. That abnormal mental state substantially impaired the respondent's capacity to control his actions and deprived him of the knowledge that he ought not to do what he did.[123] On the other hand, if the schizoaffective disorder was not present, it was simply a case of an angry disputation; impairment or deprivation of capacity would then be irrelevant.
[121]R618.
[122]R620.
[123]R30.

Dr Fama

Dr Fama also diagnosed a schizoaffective disorder at the relevant time.[124] That disorder produced an agitated delusional state.[125] That state substantially impaired the respondent’s capacity to know that he ought not kill his father.[126] It also impaired his capacity to control his actions, but the evidence was insufficient to show that that impairment was substantial.[127] There was no evidence that the respondent suffered a personality disorder, as opposed to personality difficulties.[128]
[124]R721.
[125]R720.
[126]R721.
[127]Ibid.
[128]R78.

Dr Sundin

Dr Sundin excluded a diagnosis of schizoaffective disorder, but thought that at the relevant time the respondent had a mixed personality disorder of the narcissistic, paranoid type and was also in the grip of an outburst of rage.[129] She thought these may have substantially impaired his capacity to control his actions,[130] but only that capacity.[131] She did not address the aetiology of the disorder.
[129]R681, R92.
[130]Ibid.
[131]R90.

Dr Reddan

Dr Reddan also excluded the diagnosis of schizoaffective disorder. She diagnosed a regressed mental state and personality disorder[132] with paranoid, narcissistic and antisocial traits.[133] In her opinion that amounted to a state of abnormality of mind.[134] On the question of whether that state of mind caused any substantially impaired capacity, her evidence was unfortunately ambiguous. On one view of her evidence, she did not address the question. On another, her opinion was that there was a substantial impairment of the respondent's capacity to control his actions. The judge below understood the evidence in the latter sense.[135] Dr Reddan thought that the respondent's action in telephoning the emergency services and his statements to the answering person precluded any suggestion that he did not know the nature and quality of his actions or that he ought not do the actions.[136] She did not address the aetiology of the disorder.
[132]R122, R133.
[133]R658.
[134]R133. Although the issue is ultimately one for the judge, I see no objection to a witness expressing an opinion on that question.
[135][2006] QMHC 2 at para [43].
[136]R129, R660

Dr Wood's advice

Dr Wood advised that from a clinician’s point of view, the safest of the assessments was that of Dr Reddan. He said that this assessment considered the degree of emotional disturbance which did develop. It considered the significance and seriousness of the personality disorder and created a situation where “future management could be, perhaps, ultimately effected through forensic modalities”.[137]
[137]R 136.

Dr Lawrence's advice

Dr Lawrence advised that she favoured the opinions of Dr Sundin and Dr Reddan. She advised that the respondent seemed not to have been in a normal state of mind at the relevant time and that one would have to accept his state of mind could be classified as an abnormality of mind, although she was not as convinced of this as Dr Reddan. The evidence suggested that there could have been some impairment of the respondent’s ability to control his behaviour, but she expressed no advice as to whether that impairment was substantial.

The conclusion of the Mental Health Court

Her Honour expressed her conclusion in the following words:

“[52] There remains the question of whether that abnormality substantially impaired either the defendant’s capacity to control his actions or his capacity to know he ought not do the acts which resulted in his father’s death. This is a difficult matter to determine objectively. I do not think there is sufficient evidence as to what was going on between father and son at the time Mr McDermott senior received the fatal injuries to conclude that the defendant’s capacity of control was substantially impaired. But his behaviour and statements in the lead-up to the killing, as verified by Mrs McDermott and Nathan McDermott and his profound and odd beliefs that he had been wronged, do point to a substantial impairment in his capacity to know that he ought not do the acts. I do not think the defendant’s statement to the emergency services operator precludes that conclusion. I accept the view that realisation of the appalling harm he had done to his father may well have had the effect of bringing him, to some extent, to his senses. Accordingly I am satisfied, on the balance of probabilities, that the defendant’s abnormal state of mind substantially impaired his capacity to know that the attacks on his father were wrong.”

To some extent that conclusion involved a rejection of the evidence of Dr Sundin and Dr Reddan on the question of substantial impairment of the capacity to control actions, as well as a rejection of the advice of Dr Wood and Dr Lawrence. Dr Sundin had testified that the respondent’s capacity to control his actions may have been impaired, and (on her Honour's understanding of it) Dr Reddan’s evidence was to like effect. Dr Wood had supported Dr Reddan's evidence and so, to some extent, had Dr Lawrence. It was, of course, open to her Honour to take this approach. Dr Sundin had said only that the capacity to control “may” have been substantially impaired. Dr Lawrence expressed no advice about whether any impairment of the respondent’s capacity to control his actions was substantial. As her Honour pointed out, there was not much evidence about what was going on between the respondent and his father at the time of the killing. Most tellingly, the respondent did not challenge her Honour's refusal to find a substantial impairment of the capacity to control.

The Mental Health Court further found that at the relevant time the respondent’s state of abnormality of mind caused a substantial impairment of his capacity to know that he ought not do the acts. That finding necessarily involved a rejection of the evidence of Dr Sundin that only the capacity to control might have been impaired; and of Dr Reddan that the respondent's conduct precluded a conclusion that he did not know he ought not do the acts. The finding was not supported by either of the assisting psychiatrists. It is true, as counsel for the respondent submitted, that Dr Curtis and Dr Fama proposed at least a substantial impairment of this capacity, but they did so only on the basis that the respondent was suffering a schizoaffective disorder. As Dr Curtis expressly acknowledged, if that disorder was not present the capacities became irrelevant and the hypothesis of an angry disputation was the correct one. Had their views regarding substantial impairment been founded on something other than the existence of a schizoaffective disorder, the position might be different. Given the now unchallenged finding that the respondent did not suffer a schizoaffective disorder, the evidence of Dr Curtis and Dr Fama did not support her Honour's finding of substantial impairment of this capacity.

Dr Sundin rejected the idea that respondent’s capacity to know that he ought not do the act was substantially impaired because of the statements which he made to Nathan McDermott. These in her view clearly showed “that he knew … that this was wrong and he's warning Nathan not … [to] become involved”.[138] Dr Reddan rejected the idea of the respondent’s substantially impaired capacity on the basis that the respondent implied to Mrs McDermott that she and her children should leave or he would be killing them as well; and on the basis of his telephoning the emergency services and his statements to the answering person. It was open to her Honour to reject that reasoning. She was not bound to accept the doctors’ view on that point simply because she had accepted other parts of their evidence. But a rejection of their view that the respondent’s capacity to know that he ought not do the act was not substantially impaired did not provide positive evidence for the contrary proposition.
[138]R90.

Her Honour based the finding on the respondent’s behaviour and statements in the lead up to the killing and his profound and odd beliefs that he had been wronged. She did not suggest that it was supported by medical evidence. Unsurprisingly, the appellant submitted that there was an insufficient basis in the evidence for her Honour's conclusion.

Her Honour did not identify precisely what about the respondent's behaviour and statements in the lead up to the killing pointed to a substantial impairment in his capacity to know that he ought not do the acts. Her summation of the evidence of that behaviour and those statements is set out above.[139] Counsel for the respondent submitted that it was clear from her reasons that it was her view that the whole of the evidence pointed to a substantial impairment of the capacity to know that he ought not do the act. He relied in particular on “the rather odd discussion” concerning the new motor vehicle;[140] and the respondent’s refusal to leave when told to do so by Nathan McDermott following the assault, coupled with his statements at that time.[141]
[139]Paragraph [87].
[140]See para [12] of her Honour's reasons.
[141]See para [13] of her Honour's reasons.

Neither did her Honour identify precisely the beliefs to which she referred. Again, her summation of the evidence is set out above.[142] Counsel for the respondent relied in particular on the facts that two days before the killing he was looking for someone else to blame for his problems; that he told Ms Settimo that “someone had been doing stuff to make his life shit”; and that on the day before the killing he told his father that someone had ruined his life and was to blame for his problems. He believed the person responsible was his brother Jeff.
[142]See paras [9]-[11] of her Honour's reasons.

I have read the witness statements of Ms Settimo, Mrs McDermott and Nathan McDermott to which counsel referred us, with a view to identifying a basis for inferring that respondent’s capacity to know that he ought not stab his father was impaired. There is in those statements considerable evidence that the respondent was muddled and that his ideas were on a number of occasions paranoid, perhaps even delusional or at least, in Dr Reddan's word, “overvalued”.[143] I am unable to identify anything in them, or in her Honour's other findings, which implies the existence of either an impairment to the respondent’s capacity to know that he ought not do the act or a causal link between the state of abnormality of mind described above and any such impairment. Ordinary human experience provides no foundation for linking such an impairment to, or identifying it from, a sequence of disordered thinking such as is described by those witnesses.
[143]R115.

I acknowledge that it will frequently be the case that ordinary human experience is an inadequate basis for inferring the existence of a substantial incapacity caused by a state of abnormality of mind. Usually (perhaps invariably, but that need not be decided now) psychiatric evidence of that relationship will be necessary. On this limb of the section, the position in Queensland is different from that in England and jurisdictions which have copied the English model of diminished responsibility. The Queensland requirement for the state of abnormality of mind substantially to impair a nominated capacity is much more precise and adapted to resolution by medical evidence than the English requirement that the offender be “suffering from such abnormality of mind … as substantially impaired his mental responsibility for the acts or omissions”. The latter is as much a normative as an empirical standard; as the Law Reform Commission of New South Wales reported in 1997, “[I]t has been emphasised by the courts, at least in recent years, that the question of whether a person’s mental responsibility was substantially impaired is really a question of degree, essentially involving a moral judgment”.[144] This naturally emphasises the non-medical aspect of the decision. “[I]mpairment of responsibility to a substantial extent is a legal and not a medical concept.”[145] Statements in other jurisdictions suggesting that a jury can resolve the question on the basis of non-medical evidence which conflicts with medical evidence[146] should not ordinarily be taken in this State to mean that a tribunal of fact may be satisfied on the balance of probabilities of the existence of a substantial impairment to a relevant capacity and a causal relationship between that impairment and a state of abnormality of mind in the complete absence of medical evidence to support such a finding.
[144]Report 82: Partial Defences to Murder: Diminished Responsibility (1997), para 3.42 (emphasis added).
[145]R v Purdy [1982] 2 NSWLR 964 at p 966.
[146]See for example R v Tumanako (1992) 64 A Crim R 149 at p 160.

Conclusion on a substantial impairment of the relevant capacity

I have therefore come to the conclusion that her Honour's finding cannot be sustained. The evidence did not permit a decision on the balance of probabilities that the respondent's state of abnormality of mind impaired his capacity to know that he ought not stab his father.

Orders

It follows that the finding of the Mental Health Court in relation to diminished responsibility should be reversed. No purpose would be served by remitting the matter to the Mental Health Court. It is unnecessary to exercise the power of the Mental Health Court to grant bail,[147] as the respondent is already on bail. If any party seeks any order in relation to costs, they may make application by filing and serving an outline of submissions on the other parties within seven days of this order. Any submissions in response should be filed and served within seven days of receiving the application.
[147]Mental Health Act 2000, s 337(4), s 273(1).

The order of this Court should be:

1. Upon his filing a consent thereto, order that Kerry Gerard Shine be substituted as appellant in lieu of Linda Denise Lavarch.

2. Appeal allowed.

3. Set aside so much of the decision of the Mental Health Court made on 24 May 2006 as was embodied in the words “but was of diminished responsibility when the alleged offence was committed” and in lieu thereof decide that the respondent was not of diminished responsibility when the alleged offence was committed.

4. Set aside the order of the Mental Health Court made on 24 May 2006 that the proceedings according to law against the respondent be discontinued but that proceedings may be continued against him for another offence constituted by the act or omission to which the proceedings for the offence of murder relate, and in lieu thereof, order that the proceedings against the respondent for the offence of murder be continued according to law.

5. Liberty to apply in writing in relation to costs of the appeal within seven days of the date of this order.

CITATION:	McDermott v The Director of Mental Health; ex parte A-G (Qld) [2007] QCA 51
PARTIES:	KENNETH JOHN McDERMOTT (plaintiff/first respondent) v THE DIRECTOR OF MENTAL HEALTH (defendant/second respondent) EX PARTE ATTORNEY-GENERAL OF QUEENSLAND (appellant)
FILE NO/S:	Appeal No 5078 of 2006 MHC No 46 of 2005
DIVISION:	Court of Appeal
PROCEEDING:	Appeal from the Mental Health Court
ORIGINATING COURT:	Mental Health Court
DELIVERED ON:	23 February 2007
DELIVERED AT:	Brisbane
HEARING DATE:	2 November 2006
JUDGES:	Williams and Jerrard JJA and Fryberg J Separate reasons for judgment of each member of the Court, Williams and Jerrard JJA concurring as to the orders made, Fryberg J dissenting
ORDERS:	1. The name Linda Denise Lavarch be struck out on the notice of appeal 2. Appeal dismissed
CATCHWORDS:	MENTAL HEALTH – LEGAL PROCEEDINGS BY AND AGAINST MENTALLY ILL AND OTHER PROTECTED PERSONS – DIMINISHED RESPONSIBILITY, DEFENCE OF – PROOF AND EVIDENCE – where the first respondent was indicted on a charge of murder – where the matter was referred to the Mental Health Court – where some medical evidence was accepted and other medical evidence rejected – whether the finding of diminished responsibility was correct Attorney-General Act 1999 (Qld) Criminal Code Act 1899 (Qld), s 27, s 304A Mental Health Act 2000 (Qld), s 268, s 269, s 405, s 334, s 335, s 336, s 337 Attorney-General v Kamali (1999) 106 A Crim R 269, [1999] QCA 219, Appeal No 47 of 1990, applied Button v Director of Mental Health[2005] QCA 67, Appeal No 9202 of 2004, 18 March 2005, cited GMB (2002) 130 A Crim R 187, cited Hansen v Director of Public Prosecutions [2006] QCA 396, Appeal No 10951 of 2005, 13 October 2006, cited R v Byrne [1960] 2 QB 396, considered R v Purdy [1982] 2 NSWLR 964, considered R v Schafferius [1987] 1 Qd R 381, considered Re Tumanako (1992) 64 A Crim R 149, considered
COUNSEL:	P F Rutledge for the appellants A J Rafter SC for the respondents
SOLICITORS:	Director of Public Prosecutions (Queensland) for the appellant Legal Aid (Queensland) for the respondent