R v DFB

[2005] QMHC 28

MENTAL HEALTH COURT

CITATION:

Re Hansen [2005] MHC 028

PARTIES:

REFERENCE BY THE DIRECTOR OF PUBLIC PROSECUTIONS IN RESPECT OF SHANNON ANDREW MATTHEW ARTHUR HANSEN

PROCEEDING NO:

0216 of 2004

DELIVERED ON:

16 December 2005

DELIVERED AT:

Brisbane

HEARING DATE:

25 November 2005

JUDGE:

ASSISTING PSYCHIATRISTS:

Holmes J

Dr J F Wood
Dr J M Lawrence

FINDINGS AND ORDER:

1.   There is reasonable doubt that the defendant committed the offence.

2.   The defendant is fit for trial.

3.   The proceedings for the alleged offence are to be continued according to law.

CATCHWORDS:

MENTAL HEALTH – DECLARATION OR FINDING OF MENTAL ILLNESS OR INCAPACITY – where the defendant killed his father – where psychiatric opinion was that the defendant was suffering from an abnormality of the mind consistent with a defence of diminished responsibility – where self-defence and provocation were raised on the evidence – whether a reasonable doubt as to the charge of murder arose, owing to the reasonably open defences, such that s 268 of the Mental Health Act 2000 (Qld) precluded a finding of diminished responsibility by the Court – further, pursuant to s 269 of the Mental Health Act 2000 (Qld), whether certain facts substantially material to the opinion of expert witnesses were so in dispute as to preclude a finding by the Court

Mental Health Act 2000 (Qld), s 268, s 269
Mental Health Act 1974 (Qld), s 33(2)

Criminal Code 1899 (Qld), s 302, s 304, s 304A

Re Beasley, Dowsett J, Mental Health Tribunal (19 March 1997)
Re Lloyd, Chesterman J, Mental Health Tribunal (23 February 2001)
Re RWC [2002] QMHC 013
Ugle v The Queen (2002) 211 CLR 171

COUNSEL:

C Morgan for the defendant
J Tate for the Director of Mental Health

D Mackenzie for the Director of Public Prosecutions

SOLICITORS:

Legal Aid Queensland for the defendant
The Crown Solicitor for the Director of Mental Health

The Director of Public Prosecutions

*   Appeal to Court of Appeal dismissed (Hansen v Director of Public Prosecutions      (Qld) [2006] QCA 396)

The issues

1. Mr Hansen is charged with the murder by stabbing of his stepfather, Trevor Kupsch, on the night of 19 June 2004. His counsel, Ms Morgan, contended for a finding of diminished responsibility, which was supported by the evidence of three experienced psychiatrists, Drs Reddan, Kingswell and Sundin. Mr Mackenzie, for the Director of Public Prosecutions, submitted that any decision as to unsoundness or diminished responsibility was precluded by ss 268 and 269 of the Mental Health Act 2000; by the first provision because the court would be satisfied there was a reasonable doubt as to Mr Hansen’s commission of the offence; and by the second because there were facts substantially material to the expert opinions so in dispute that it was unsafe to make those decisions.

Mr Hansen’s accounts of the events of 19 June

1. Mr Hansen was seventeen years old when his stepfather was killed.  The evidence as to what happened that night comes largely from his interviews with the police, the first of which took place in the early hours of the following morning, starting at 12.38 am; the second, later that day, from 12.27 pm, when he was taken back to the house he had shared with Mr Kupsch; and the third on the night of 21 June, after a post-mortem had been carried out.  The account which follows comes from the 12.38 am interview.

1. At about 5.30 or 5.45 pm on 19 June, Mr Hansen told the police, he had left home to watch a rugby union match at a local tavern.  (That timing seems to accord with a TV guide which shows a rugby test starting at 5.30 pm.)  While he was at the tavern, he rang his stepfather and asked if he could borrow money.  Mr Hansen estimated that he left the tavern at 8.30 or 9.30 pm.  When he arrived home his stepfather threw the money he had asked for at him, abused him in extremely derogatory terms, and then swung at him.  He responded by punching his stepfather in the ribs.  The latter ordered him out of the house.  He went to his bedroom to assemble some clothes and realised that he had there a knife which belonged to his stepfather, who had in the past contemplated killing himself with it.  He took the knife to ensure his stepfather could not hurt himself or Mr Hansen’s mother. 

1. As he was leaving the house, Mr Hansen said, Mr Kupsch continued to berate and push him; he fell and rolled onto his back.  His stepfather was then on top of him.  According to Mr Hansen, Mr Kupsch was still abusing him and he did not know what he was trying to do: “trying to rape me or punch me or do something to me”.  He told him to get off (in rather more forceful terms) but his stepfather punched him in the mouth.  He grabbed the knife from his pocket and stabbed him.  His stepfather had stumbled inside the house, locked the screen door and made a rude gesture at him.  After that, Mr Hansen said, he ran until he arrived at the beach, before going to his mother’s place, where he realised that along the way he had lost the money he had been given. When he was asked what had “brought it on tonight” he answered: “Him calling me a cock sucking faggot no good cricket player.  That probably tipped me over the edge”.

1. That version varied in some respects from his account on 20 June in which he said he arrived home from the tavern at about 10.00 pm.  After the initial dispute, he had not got his clothes; he only had the chance to pick up the knife.  His stepfather saw him with it and pursued him; he had it still in his hand when the latter pushed him to the ground.  Then there was some to-ing and fro-ing with possession of the knife passing between them in the struggle before he stabbed his stepfather.  When it was put to him that his stepfather’s body had been found outside the house he accepted that the latter had probably not gone back inside.  He ran, but probably did not make it quite as far as the beach before going to meet his mother.

1. Mrs Kupsch, the deceased’s wife and Mr Hansen’s mother, provided the police with a statement in which she said that she had received an abusive telephone call from Mr Kupsch about 8.00 pm.  About 15 or 20 minutes later, Mr Hansen had rung and asked her for money; about 20 minutes later he had rung again, crying.  She gives this account of what he said: “He wouldn’t stop mum, he wouldn’t stop.  I told him to go away and leave me alone.  He called me a poofter and he just kept on me and then he said you were a trollop and he told me I wasn’t a man.  He wouldn’t stop mum, he wouldn’t leave me alone or go away”.  She went to meet him on foot; they returned to her house where they talked for a period and Mr Hansen smoked two cigarettes before they went to the police station where they arrived at about 10.30 pm.

Post-mortem

1. The post-mortem report showed that Mr Kupsch suffered multiple stab wounds: five to the chest and abdomen, one to the left armpit and another to the left arm, and four from behind, to the loin area.  There was no sign of any defence injury on his body.  The cause of death was stab wounds to the chest penetrating into the left lung and heart.

Intoxication

1. Two of the staff at the tavern have given statements to the effect that Mr Hansen had drunk about three schooners and was not apparently intoxicated.  A customer at the tavern, a Ms Holder, describes playing a few games of pool with him.  He would not, while with her, have had more than four drinks and he “wasn’t drunk or anything”.  Senior Constable Guild, who first spoke to Mr Hansen in a general conversation at the watch house 10 minutes or so before the 12.38 am interview, said that he had not considered arranging for a blood sample to be taken for testing for alcohol because Mr Hansen “seemed fine” to him.  

1. Video footage of that interview was shown to the court; Mr Hansen showed no obvious sign of intoxication.  He claimed, however, that he had drunk 19 stubbies of beer over a two-hour period.  Later in interviews with psychiatrists, he made various assertions as to his alcohol consumption, telling Dr Reddan that he had been at the hotel for a long period of time and did not know when he left or exactly how much he drank there as he was “too pissed”; Dr Kingswell that he had drunk 19 beers and 5 or 6 whiskies; and Dr Sundin that he had had about 6 beers: “I had started to get pissed”.

The psychiatric evidence

1. All three psychiatrists took a history from Mr Hansen of a disrupted upbringing, with Mr Kupsch being alcoholic and violent.  That history is supported by documents from sources such as the New South Wales Community Services Department.  Mr Hansen had been treated by the Fraser Coast Health Service for depression.

1. There was no submission that I should make a finding of unsoundness on this reference and none was supported by the psychiatric evidence.  Dr Kingswell, Dr Reddan and Dr Sundin all supported a finding of diminished responsibility on the basis that Mr Hansen was suffering from an abnormality of mind which impaired his capacities.  Their analyses varied somewhat.  Dr Kingswell and Dr Sundin thought that that abnormality was produced by dysthymic disorder and post-traumatic stress disorder.  Dr Kingswell identified the capacity impaired as Mr Hansen’s capacity to know what he was doing was wrong, whereas Dr Sundin thought it was the capacity to understand what he was doing.  Dr Reddan considered that the abnormality was the product of personality dysfunction and dysthymic disorder and that the only capacity substantially impaired was that of control.  All three psychiatrists proceeded on the basis that alcohol was likely to have played some, but not the major, role in the impairment of capacities.

1. Mr Mackenzie for the Crown submitted that the force of the expert opinion was reduced by the variations as to diagnosis and capacity impaired.  I do not place great weight on the identification of different capacities; the capacities involved do not lend themselves to neat compartmentalisation, and there is room for subjective views.  As to the difference in diagnoses – the reference to symptoms of post-traumatic stress disorder by Drs Kingswell and Sundin, as opposed to Dr Reddan’s view, of personality dysfunction – Dr Lawrence identified a possible relationship between those views, pointing out that symptoms of post-traumatic stress disorder could themselves influence personality development.  In any event, the expert evidence points consistently and compellingly to a finding of diminished responsibility.

Reasonable doubt and dispute of fact

1. Section 268 of the Mental Health Act 2000 provides

“Reasonable doubt person committed offence

(1)The Mental Health Court must not make a decision under section 267(1)(a) or (b) if the court is satisfied there is reasonable doubt the person committed the alleged offence (the disputed offence).

(2)However, the court may make a decision under section 267(1)(a) or (b) if the doubt the person committed the disputed offence exists only as a consequence of the person’s mental condition.

...”

I should, Mr Mackenzie submitted, be satisfied there was reasonable doubt that Mr Hansen had committed murder because provocation and self-defence were clearly raised on the evidence.

1. Section 269 deals with disputes of fact:

“Dispute relating to substantially material fact

(1)The Mental Health Court must not make a decision under section 267(1)(a) or (b) if the court 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.

(2)Without limiting subsection (1), a substantially material fact may be—

(a) something that happened before, at the same time as, or after the alleged offence was committed ...”

Dispute as to a “substantially material” fact

1. The first of the facts identified by Mr Mackenzie as in dispute were the quantity of alcohol consumed by Mr Hansen and his level of intoxication.  He pointed also to other matters he described as inconsistencies in Mr Hansen’s accounts: the sequence of events relating to his retrieving the knife and whether his stepfather had possession of it at any stage; Mrs Kupsch’s account that she received a telephone call at 8.40 pm, suggesting an assault at 8.30 pm, not later; her report that there had been a reference to her as a trollop, which Mr Hansen had not mentioned when outlining the abuse by his stepfather; Mr Hansen’s varying statements as to whether he had gone to the beach and where he realised he had lost the money given to him.  Mr Mackenzie identified other areas of doubt in the interviews: Mr Hansen had told the police he had a girlfriend and later admitted that was not true.  He also claimed that he had an excellent relationship with his stepfather, which seemed improbable in the circumstances.

1. Taking the issue of disputed facts first, I am not satisfied that any of these matters amount to facts “substantially material to the opinion of an expert witness … so in dispute it would be unsafe to make the decision”.  The degree of intoxication could amount to a substantially material fact; but it was not seriously in dispute.  Counsel for Mr Hansen did not suggest any weight could be put on his account of his alcohol ingestion in the police interview, and in light of the objective evidence on the subject, I think that approach realistic.  The three witnesses in a position to observe Mr Hansen at the tavern contradict his account of the extent to which he had been drinking and provide no support for the view that he was intoxicated.  The police officers did not perceive that he was intoxicated, and the interviews themselves show no such sign.  In my view, his account of drinking 19 stubbies over two hours can safely be disregarded, as can any inference as to the level of intoxication that would follow that rate of consumption. 

1. As a general proposition, I do not think every inconsistency in a defendant’s account necessarily amounts to a fact in dispute.  For example, given Mr Hansen’s concession that his stepfather did not go back inside the house after the stabbing, it is hard to see that his earlier account of his doing so qualifies as a matter in dispute.  But, in any event, none of the psychiatrists seem to think it significant.  Mrs Kupsch’s reference to Mr Hansen’s having told her his stepfather had called her a trollop might reflect any number of things: a misunderstanding by her, a failure of memory by him or a difference in the importance of the statement to each of them.  But I do not think it necessarily involves any dispute of facts, and certainly not a material one.  Mr Hansen’s claim of a good relationship with his stepfather was no surprise to Dr Kingswell, who regarded it as of a piece with his dependent personality disorder; but in any case, the specifics Mr Hansen gave to support his perception are uncontradicted.  Whether Mr Hansen had a girlfriend seems of little import, but given his admission of invention in this regard, it seems no dispute remains.

1. Mr Hansen’s account of events as to where the knife was and who had it, clearly would be of importance to a number of questions for the jury on a trial, but it was not of great significance to the primary issue for the psychiatrists: his mental state at the time the stabbing occurred.  The chronology for the evening is not entirely satisfactory, but I think that rather too much weight may be placed by Mr Mackenzie on Mrs Kupsch’s account, unsupported by records, as to when she received phone calls.  I would not, on the strength of her estimates of time, consider that there was any grave cause for concern as to the timing of events as given by Mr Hansen.  Matters such as whether he went to the beach or lost the money there may well be in dispute but I do not think they are at all material.  Notwithstanding the variety of matters identified in respect of which the evidence is inconclusive or unsatisfactory, I do not think there is any dispute of fact material to the psychiatrists’ views such as to bar the making of a decision on diminished responsibility.

Reasonable doubt

1. As to reasonable doubt, although I would certainly, if I were the trial judge, leave self-defence to the jury, given what Mr Hansen said as to the course of events in his interview, I do not actually experience a doubt on that basis; not on the material which is before me.  That is so having regard to varying accounts as to how the stabbing occurred, in particular as to whether the knife was ever in possession of Mr Kupsch, taken with the nature of the injuries to Mr Kupsch: both the extent of those he sustained and the absence of any defence injuries.  But the question of provocation is rather different.  Mr Hansen has described remarks made and a physical struggle, the combination of which could not but be provocative, particularly to a person of his youth and in his circumstances; and his description is not, unlike the claims of intoxication and self-defence, contradicted by any objective evidence.  It is necessary therefore to consider whether the obvious availability of provocation to reduce murder to manslaughter creates a reasonable doubt as to guilt of murder for the purposes of s 268 which would preclude any finding of diminished responsibility. 

Construction of s 268

1. As to the approach to be taken generally to reasonable doubt under s 268, I may say that I agree entirely with the approach adopted by Wilson J in Re RWC:[1]

“[I]t is not sufficient for the defendant merely to deny his guilt.  In my view this Court is obliged to undertake an examination of such evidence as is put before it, whether it be in documentary or oral form, and it is obliged to form its own view as to whether there is a reasonable doubt that the offence was committed.  By reasonable doubt I take it the legislature meant one not based on speculation or that is otherwise fanciful.”

[1] [2002] QMHC 013 at 4, para 16.

1. No equivalent of s 268 appeared in the Mental Health Act 1974, although that Act did contain in s 33(2) a provision similar to s 269, preventing the then Mental Health Tribunal from proceeding to a finding where the facts were “so in dispute that it would be unsafe to make a determination”. In earlier cases under the 1974 Act the view was taken that only a dispute affecting the defendant’s mental state was relevant.[2]  Parliament amended the legislation to make it clear that the relevant facts were “the facts of, or connected with, the alleged offence or of the [defendant’s] involvement therein.”[3]  The Minister for Health in his Second Reading speech[4] introducing the Bill[5] said this: 

“It was always intended, as indicated by the general tenor of the legislation and other provisions of the Act, that “the facts”, as referred to in this section, should mean the facts of, or connected with, the alleged offence or of the involvement therein of the person in question.  The Mental Health Tribunal will not proceed if there is reasonable doubt as to whether the person charged actually committed the offence.”

[2]R v House [1986] 2 Qd R 415; R v Schafferius [1987] 1 Qd R 381; R v Sarracino [1988] 2 Qd R 707.

[3] Queensland, Parliamentary Debates, Legislative Assembly, 19 February 1987, p 83, (Hon. M.J. Ahern).

[4] Queensland, Parliamentary Debates, Legislative Assembly, 19 February 1987, p 83, (Hon. M.J. Ahern).

[5] Mental Health Services Act Amendment Bill 1987.

1. In Re Beasley,[6] Dowsett J reviewed the history of the legislation and paraphrased the Minister’s speech in these terms:

“the provision was designed to ensure that the Tribunal will only consider unsoundness of mind or diminished responsibility where the alleged offender is shown to be otherwise guilty of the offence in question.  If there is a dispute about any other aspect of criminal liability, then the matter should go to trial.”

He went on to characterise s 33(2) as

“avoiding the possibility of a miscarriage of justice as a result of a patient being subjected to the regime of the Mental Health Act pursuant to a determination under s 33(1) when he or she should really have been acquitted of the offence for other reasons.”[7]

[6]Mental Health Tribunal, (19 March 1997) at 4.

[7]Mental Health Tribunal, (19 March 1997) at 6.

1. In Re Lloyd[8] Chesterman J attributed a similar purpose to s 33(2):

“The subsection is designed to protect a patient accused of a criminal offence in circumstances where he may be entitled to an acquittal on grounds other than insanity or diminished responsibility.  If it is not clear that the patient committed the offence, or if it was committed in circumstances excluding criminal liability, the Tribunal should not determine that he was of unsound mind with the consequent requirement that he be detained as an involuntary patient in a mental hospital.”[9]

[8]Mental Health Tribunal (23 February 2001).

[9]Mental Health Tribunal (23 February 2001) at para 39.

1. Sections 268 and 269 in the current Act are sufficiently broadly expressed to encompass both the judicial view of dispute of facts under the 1974 Act as it originally stood and the view of Parliament as reflected in the 1987 amendment.  Disputes of fact relevant to psychiatric opinion and reasonable doubt as to the commission of the offence itself are both bases for refraining from a determination.  The Explanatory Notes to the Mental Health Bill 2000 confirm the intention to cast a wide net:

“The test for returning the matter to the criminal court system when significant matters are in dispute is specified in the legislation and the test has been widened.  That is, the Court must refrain from making a decision about the person’s criminal responsibility if there is a reasonable doubt that the person committed the offence, or if a fact that is substantially material to the opinion of an expert witness is so in dispute as to make it unsafe to make a determination.”[10]

[10] Mental Health Bill 2000 at 8.

1. Ms Morgan, for Mr Hansen, did not seek to argue that “reasonable doubt” under s 268 could not extend to doubts as to criminal responsibility arising, for example, because of the availability of self-defence; but she did contend that in relation to the issue of provocation the following course of reasoning should be adopted. Section 268 precluded the making of the relevant decisions only where the court was satisfied there was reasonable doubt the person committed the alleged offence. Section 302 of the Criminal Code sets out the circumstances in which a person who unlawfully kills another is guilty of murder, the first of those circumstances being apparently met in this case. Section 304 of the Code, which deals with provocation, applies “where a person who unlawfully kills another under circumstances which but for the provisions of [s 304] would constitute murder”. That is, it has application only if the court is already satisfied that the person had unlawfully killed in the circumstances set out in s 302 so as to be guilty of murder. Since the court, in order to reach consideration of s 304, could have no reasonable doubt, s 268 did not apply and it was open to make a finding as to unsoundness of mind and diminished responsibility.

1. Notwithstanding Ms Morgan’s careful argument, I do not think one can approach the process required under s 268 by taking the sections of the Criminal Code in a piecemeal way, determining satisfaction of guilt of murder under s 302 without reference to s 304. To do so ignores the interrelatedness of the two provisions. Section 302 begins with this qualification: “Except as hereinafter set forth…” before going on to list the circumstances in which unlawful killing amounts to murder. That reference to exception can only be an allusion to s 304 and s 304A, which reduce criminal responsibility from murder to manslaughter.[11] Each of those sections explains its status as an exception to murder explicitly in its opening clauses: “Where a person who unlawfully kills another under circumstances which but for the provisions of this section, would constitute murder…”. One cannot, in light of those clear indications as to how the sections are to work together, adopt the artificial approach of quarantining s 302, as proposed. I come with some regret to the conclusion that because I am satisfied that there is a reasonable doubt as to guilt of the offence of murder based on provocation, I cannot proceed to a finding of diminished responsibility.

   [11] See Ugle v The Queen (2002) 211 CLR 171 at 177 as to the relationship between equivalent sections of the Criminal Code (WA).

1. As I discussed with counsel during the hearing of this case, it seems anomalous that the defendant should have to face a murder trial because there exists, on the basis of evidence of provocation, a reasonable doubt that he is guilty of murder. The rationale identified by Dowsett and Chesterman JJ – keeping persons who may not be guilty of any offence from involuntary placement in the mental health regime – for desisting from a finding has less force here, where a finding of diminished responsibility would not have that consequence; it would merely reduce Mr Hansen’s criminal responsibility and, correspondingly, the charge he faced, to manslaughter. The inability to achieve that result seems rather to defeat one of the implicit purposes of the Act, to protect persons with mental illness or abnormality from the rigours of a criminal trial. Secondly, it means that the jury will have to add to its tasks the consideration of diminished responsibility when this court is designed to resolve psychiatric issues of that kind. It may be that legislative intervention is needed so that the defences created respectively by s 304 and s 304A do not jar in this context.

1. Unpalatable as the result is, I am satisfied there is reasonable doubt that Mr Hansen committed the alleged offence of murder, and I cannot therefore make any decision as to unsoundness or diminished responsibility.  I am satisfied that he is fit for trial.  The matter should proceed according to law.