Re AMP

[2007] QMHC 22

MENTAL HEALTH COURT

CITATION:

Re AMP [2007] QMHC  22

PARTIES:

REFERENCE BY THE DIRECTOR OF MENTAL HEALTH IN RESPECT OF AMP

PROCEEDING:

Proceeding No 0230 of 2006

DELIVERED ON:

1 October 2007

DELIVERED AT:

Brisbane

HEARING DATE:

14 September 2007

JUDGE:

Philippides J

ASSISTING
 PSYCHIATRISTS:

Dr J F Wood
Dr J M Lawrence

FINDINGS AND ORDER:

1. At the time of the alleged offence, the defendant was not of unsound mind as described in Schedule 2 to the Mental Health Act 2000 (Qld)

2. At the time of the alleged offence, the defendant was of diminished responsibility as described in Schedule 2 to the Mental Health Act 2000 (Qld)

3.   The defendant is fit for trial

4.   Proceedings against the defendant for manslaughter are to be continued according to law

CATCHWORDS:

MENTAL HEALTH – DECLARATION OR FINDING OF MENTAL ILLNESS OR INCAPACITY – where defendant charged with murder of her daughter – where defendant was suffering at the relevant time from a major depressive episode in the context of significant personality disorder and psychosocial stressors – whether defendant suffered from unsoundness of mind – whether defendant was as a result of a disease of the mind deprived of any of the relevant capacities  

MENTAL HEALTH – DECLARATION OR FINDING OF MENTAL ILLNESS OR INCAPACITY – where a major depressive episode was considered by reporting experts to be an abnormality of mind –– whether the defendant was in such a state of abnormality of mind as to be substantially impaired in one of the relevant capacities at the time of the alleged offence – whether defendant was of diminished responsibility at the time of the alleged offence

Criminal Code 1899 (Qld), s 304A

Mental Health Act 2000 (Qld), Schedule 2

R v Byrne [1960] 2 QB 396 at 403, considered
CWB, Re [2003] QMHC 012, considered
R v Rolph [1962] Qd R 262, considered
R v Whitworth [1989] 1 Qd R 437, considered
Re GMB (2002) 130 A Crim R 187, considered
R v Porter [1936] 55 CLR 182, considered

Stapleton v R (1952) 86 CLR 358, considered

COUNSEL:

Mr J Farmer for the defendant
Mr J Tate for the Director of Mental Health

Mr S Vasta for the Director of Public Prosecutions

SOLICITORS:

Legal Aid Queensland for the defendant
Crown Law for the Director of Mental Health

Director of Public Prosecutions (Qld)

1. PHILIPPIDES J:  The defendant AMP, a 43 year old woman, is charged with the murder of her daughter on 18 September 2005.  The defendant’s mental condition at the time of the alleged offence has been referred to this court. 

Circumstances of the Offence

1. At the time of the alleged offence, the defendant was recently estranged from her second husband, DP, and living in a rented house with her 18 month old son, J, and her five year old daughter, S, following an allegation of sexual abuse made by her daughter against DP, who was the child’s step father. 

1. In the late morning of 18 September 2005, the defendant telephoned her husband in a distressed state and told him that she had done “something bad”.  She asked her husband to come and collect their son from the house.  When her husband arrived he found S dead on a bed in the house.  The defendant was crying and said she had had enough of S not doing what she was told and that she could not handle her anymore.  The defendant told her husband that she had put her son to bed and had then told her daughter that they were going to play a game.  She said she had wrapped masking tape around the child’s head twice, causing her mouth but not her nose to be covered and told the child to lie on her back on the bed.  She said she then put a pillow over the child’s face and smothered her.  The child died from asphyxiation.

1. The defendant’s husband left with J, after which the defendant telephoned police and told them, “I just killed my little girl”, and gave them directions to her house.  She participated in a police interview, giving a similar description of what had occurred and describing how she held the pillow down over the struggling child for about 20 minutes.    

Background History

1. The defendant has some psychiatric history.  When she was about 19 years old she developed agoraphobia and in this context made three suicide attempts over a six month period, with one attempt resulting in her admission to the Gold Coast Hospital Mental Health Unit for two weeks.  The defendant reported suffering from depression for about three to four years.  There is some family history of mental illness; the defendant’s brother suffers from Bipolar Disorder and her mother has suffered from depression, as did a cousin.

1. With her first husband the defendant had two children, a son who remained with her first husband when the marriage failed and the daughter S who remained with the defendant.  The child was evaluated as having a learning disorder; she had language delay associated with behavioural problems and possibly some cognitive impairment.  The defendant’s first marriage had been an unhappy relationship in which she was subjected to physical and sexual abuse.  The defendant met her second husband, DP, in 2003.  She had had two miscarriages before becoming pregnant with her son, J.  She described feelings of depression during this period, in the context of her miscarriages, the birth of her son, managing his sleep, her daughter’s behaviours and conflict between her daughter and her husband.  The defendant reported that S was a difficult child to manage and prone to severe tantrums and would scream and cry for prolonged periods.  As a result, when she went shopping, the defendant would often leave the children with her husband.  At that stage they were living in the Gold Coast region.  

1. On 29 June 2005, the defendant took S to the Emergency Department of the Gold Coast Hospital following a complaint by the child that “daddy hurt my wee wee”.  The defendant told the hospital authorities that the child had complained before of a sore “pee pee” and that this had on occasions occurred after the child had been alone with the defendant’s husband, but that when she had questioned her husband he had explained that he had had to help wipe the child’s bottom and may have been too rough.  An examination of the child at the hospital revealed hymeneal tears.  The hospital staff alerted the relevant authorities of the allegations by the child.  The defendant was thereafter precluded from returning to her house with the children and the defendant’s husband was later charged with rape.  Thereafter, the defendant had no further contact with her husband, other than on the day of the alleged offence. 

1. As a result of the defendant’s immediate separation from her husband, the defendant moved with her children to her parents’ home.  She was at that time in the early stages of a planned pregnancy.  The defendant reported being overwhelmed by the allegations against her husband.  She felt unable to continue with the pregnancy and had a termination.   She described feeling bewilderment and distress and was deeply conflicted by the feelings for her husband and her reaction to the allegation against him.  She found herself ruminating at length on the allegations, seeking to understand how they had occurred.  She vacillated over accepting that her husband had sexually assaulted her daughter.  (Later while in custody, she formed the belief that her own father was responsible for the sexual assault.) 

1. After some weeks, the defendant moved into Housing Commission accommodation in a suburb some distance from her parents’ home. Although the defendant had a difficult relationship with her parents and disagreements over parenting approaches to S, nevertheless, they provided some support to her and assisted her financially in her move.  While on the one hand she appreciated being outside her parents’ sphere of influence, she described feeling increasingly lonely and isolated living in her new accommodation, where she had few contacts or support.  She also reported finding it increasingly difficult to care for S.  

1. During this period she described the onset of low mood associated with initial insomnia, broken sleep and early morning waking, appetite disturbance and significant weight loss, lack of energy and prolonged and frequent periods of tearfulness.  She described developing suicidal ideation and thoughts of stabbing herself.  She reported finding it increasingly difficult to get out of bed to face the world.  She described feeling isolated, unsupported and guilty about the alleged sexual assault by her husband.  She also struggled with looking after her children who had periods of illness.  The stress of the move was exacerbated by her son fretting for his father and her daughter’s tantrums becoming worse.  The defendant considered placing her daughter in respite, but was not supported in this by her parents, who advised her that she would lose custody of her daughter if she did so.    

1. The defendant reported first having thoughts of killing her daughter on the night before the alleged offence.  As to the day of the events in question, the defendant could not identify anything that occurred that was particularly unusual.  She told police that she had been depressed all day and crying on and off.  She reported that the thought to kill her daughter came into her mind approximately 10 minutes before the events leading to her killing S.  In subsequently recounting the events of the day, she repeatedly told the police and the examining psychiatrists that she “just wanted peace”. 

1. After her incarceration, the defendant was seen on 21 September 2005 by Dr Heffernan.  She reported to him a three month history of not coping with multiple stressors.  She described a generally down mood with neuro‑vegetative disturbance and guilt about her husband’s charges and about what had happened to her daughter.  She also described suicidal ideation that occurred frequently.  He diagnosed a major depressive episode and treated her with Zoloft and later with Avanza.  The defendant was reviewed on 23 September 2005 by Dr Hannah who also made the same diagnosis.  Dr Hannah found the defendant’s mood to be depressed with a restricted affect and noted themes of the defendant feeling overwhelmed and hopelessness.  The defendant was reviewed again in early October 2005 by a psychologist.  It was noted that there was continued evidence of a major depressive episode and that the defendant seemed “out of touch with the gravity of her situation”.

Diagnosis

1. For the purposes of the reference, Drs Sundin, Beech and van de Hoef provided reports and gave oral evidence.  Dr Sundin provided the court with two reports, dated 13 June 2006 and 16 June 2006, following two interviews with the defendant on 17 March and 26 May 2006.  Dr Beech saw the defendant on 1 and 15 December 2006 and has provided a report dated 28 December 2006.  Dr van de Hoef assessed the defendant on 28 December 2005 and provided reports dated 13 February 2007 and 8 April 2007. 

1. Dr Sundin diagnosed major depressive disorder, single episode, moderate to severe intensity and also diagnosed dependent personality traits.  Dr Beech diagnosed a major depressive episode, severe, with melancholic features and a dependent personality disorder.  Dr van de Hoef considered that the defendant suffered from a borderline personality disorder, a proneness to comorbid disorders and considered the defendant to have suffered at the relevant time from depressive symptoms, consistent with a major depressive episode or possibly an adjustment disorder with depressed mood.  There was thus general agreement among the experts that the defendant was at the relevant time suffering from a major psychiatric disorder on the basis of an axis one diagnosis of a major depressive episode with an axis two disorder described as either borderline or dependent personality disorder. 

Unsoundness of mind

1. There was no support in any of the clinical opinions given to the court for a finding that the defendant was of unsound mind at the relevant time. While major depressive disorder qualifies as a disease of the mind, none of the doctors considered that there was a psychotic component to the depressive disorder such as may have resulted in deprivation of any capacity. 

1. The defendant disclosed many months after the events in question that she believed that her daughter was possessed by the devil in the period prior to the alleged offence.  However, Dr Sundin saw the defendant’s disclosures as speaking to the defendant’s belief system in the context of trying to understand her daughter’s behaviours, as opposed to some sort of frank delusion or overvalued idea.  None of the psychiatrists was able to conclude that there was in fact any psychosis or psychotic symptoms present at the relevant time.  And the defendant did not in her police statement provide any explanation for her actions that referred to her daughter being possessed.  Nor was there evidence of psychosis following the defendant’s detention and there is no previous history of her having had depression to that extent.  Accordingly, I find that the defendant was not of unsound mind at the relevant time.

Diminished Responsibility

1. The area of disagreement amongst the reporting psychiatrists was as to whether the defendant was of diminished responsibility at the relevant time, with Drs Sundin and Beech being of the opinion that the defendant was of diminished responsibility, but Dr van de Hoef being unable to form that view.  

1. A finding of diminished responsibility is available where there is a substantial impairment of one of the relevant capacities as a result of 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)” within s 304A of the Criminal Code 1899 (Qld). It goes beyond the limits marked out by the variety of intelligence and disposition in the community generally (R v Rolph [1962] Qd R 262 at 288) and it excludes extremes of common emotions such as anger or jealousy (R v Whitworth [1989] 1 Qd R 437 at 446; Re GMB (2002) 130 A Crim R 187 at 197‑198). The expression “abnormality of mind” was described by Parker LCJ said in R vByrne [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.”

1. There is no dispute that the defendant’s major depressive episode qualified as an abnormality of the mind.  As mentioned, all the reporting psychiatrists agreed that the defendant was at the relevant time suffering from a major depressive episode in the context of very significant personality vulnerabilities.  The area of difference was limited to the question of the extent of impairment of capacity, which centred on how pervasive and severe the untreated depressive symptoms were considered to have been at the material time. 

1. It was universally accepted by the reporting psychiatrists that the only capacity in issue was the defendant’s capacity to know that she ought not to do the acts resulting in her daughter’s death; that is the capacity to reason with a moderate degree of composure as to the moral rightness or wrongness of her conduct.  That capacity is not coterminous with knowing that the conduct is unlawful; it is not uncommon for someone to lack the capacity for moral reasoning while at the same time knowing an act is unlawful: R v Porter [1936] 55 CLR 182 at 189‑190; Stapleton v R (1952) 86 CLR 358 at 367; CWB, Re [2003] QMHC 012 at [31].

1. All of the reporting psychiatrists accepted that there were significant factors and stressors operating that contributed to the development of the major depressive disorder.  They comprised genetic, as well as psychosocial, stressors occurring over a relatively short period of time.  The psychosocial stressors included the allegation of rape against the defendant’s husband, the defendant’s separation from her husband, the termination of a wanted pregnancy after a number of miscarriages, the change of residence of the defendant and her children, the defendant’s social isolation, ongoing conflict with family of origin and her daughter's ongoing learning and developmental difficulties.

1. Both Drs Sundin and Beech gave evidence that they considered the defendant was, as a result of her depressive episode, in such a state of abnormality of mind as to be substantially impaired in her capacity to know she ought not to do the acts resulting in her daughter’s death. 

1. Dr Sundin noted that the defendant’s fragile personality arising from her dependant personality disorder rendered her more vulnerable to disturbed patterns of thinking, dysfunctional patterns of problem-solving and mental health breakdown.  In outlining the significance of the various psychosocial stressors, Dr Sundin observed that the defendant’s low self‑esteem and feelings of inadequacy were exacerbated by her daughter’s learning and behavioural difficulties.  Dr Sundin described the rape charge against the defendant’s husband as having a “shattering impact” on the defendant, particularly in the context of her dependant personality:

“… it left her torn between her desire to look after her daughter and be responsive to her daughter, and the enormous difficulty she had in believing that [her husband] could have committed such an act, combined with … facing the inevitability that if she believed [her daughter] and accepted the allegations, she then had to separate from [her husband], who had been her primary source of support, and upon whom she was very emotionally dependent and with whom she had another child.”

1. Dr Sundin considered that this situation was made worse by the ongoing conflict the defendant had with her family of origin.  Had the defendant’s relationship with her own family been different, she may have been able to transfer her dependency from her husband to her parents, but because the defendant did not have a perception of being supported emotionally by them that avenue was not available to her.  Dr Sundin also placed emphasis on the emotional impact of other stressors such as the defendant’s decision to terminate her pregnancy and the household’s move with consequent further isolation.  Dr Sundin noted that in the lead up to 18 September the defendant described becoming more listless, more withdrawn, less tolerant and less able generally to cope with ordinary activities.  Dr Sundin also observed that the defendant described symptoms strongly suggestive of a severe major depressive disorder in that she had lost her appetite, was losing weight and suffering from insomnia.  The defendant also reported that she was not particularly engaging in parenting with her children, other than to sit on the couch and watch television with them.  Dr Sundin noted that the defendant spoke at length of her need to find peace and concluded that the defendant, because of her vulnerable personality and deepening depression, was someone who perceived her options as having narrowed down.  Against that evidence, Dr Sundin concluded that the defendant was substantially impaired in her capacity to know that she ought not to do the act in question in the setting of a major depressive disorder. 

1. Dr Beech was also of the opinion that it was more likely than not that the defendant’s depression would have substantially impaired her ability to know that her actions in killing her daughter were wrong.  In his view, given the defendant’s account of her mood at the relevant time, her observed weight loss and her presentation soon after her incarceration, the defendant’s mood was most likely significantly affected and the defendant would have had increasing difficulty coping with the demands of her daughter, particularly in the relative isolation that she described and the lack of supports that she perceived were available.  Dr Beech had some concerns that others, such as family members, had not noticed that the defendant was as depressed as she had described.  And while he accepted that it was conceivable that a motivation for what occurred was a desire by the defendant to be reunited with her husband, Dr Beech considered that it was more likely than not that the defendant’s actions resulted from her being substantially impaired in her capacity to know that her acts were wrong and that the defendant killed her daughter to gain peace and quiet. 

1. While Dr van de Hoef accepted that the defendant was under very significant psychosocial stressors and was suffering from an abnormality of mind that resulted in impairment of the capacity to know she ought not to do the acts in question, she was unable to conclude that there was a substantial impairment, primarily because she was unable to confirm the degree of the depression and impairment sufficiently from external sources.  In addition, Dr van de Hoef noted that when the defendant spoke to her husband on the telephone immediately after the events in question, the defendant had told him in response to his statement that he loved her, “I don’t think you will after you see what I’ve done”.   This remark caused her to have some doubts as to the extent of impairment of the relevant capacity.  However, when considering that matter in his evidence, Dr Beech saw the comment as indicating that there was no deprivation of the capacity of knowing, rather than as suggesting an absence of substantial impairment at the relevant time.  Another matter on which Dr van de Hoef placed some emphasis was that the defendant was able to obtain and maintain employment in prison.  However, as Dr van de Hoef accepted, that occurred after the defendant had been treated with appropriate anti-depressant medication.

Conclusion

1. I am satisfied that the defendant was suffering from a major depressive disorder.  It occurred in the context of a vulnerable personality and significant psychosocial stressors, which escalated with the allegations of the sexual interference by the defendant’s husband and which led to the defendant’s immediate separation from the husband and the termination of a planned pregnancy.  The evidence indicates that within a short period thereafter, the defendant found herself living in a new and quite isolated environment without close, known friends and with the perception of having no emotional support from her family, and needing to manage alone two very young children, one of whom had some significant impairments and exhibited difficult behaviour.  I am not persuaded that the major depressive disorder evident in prison, which required ongoing treatment, arose because of the defendant’s response to the realisation of her situation.

1. Having considered all of the evidence, I have found the opinions of Drs Sundin and Beech cogent and the evidence supportive of their views that the defendant was substantially impaired as a result of her depressive disorder at the time of the events in question.  In reaching that position, I have been greatly assisted in this difficult case by the opinions of the assisting psychiatrists, both of whom also favoured the conclusions of Drs Sundin and Beech.  As to the reservations held by Dr van de Hoef concerning the extent of the defendant’s impairment stemming from her being unable to be convinced from collateral evidence that there was a significant deterioration in the defendant’s thinking and functionality, Dr Lawrence offered the clinical opinion that in her mind there was sufficient collateral evidence to support a substantial impairment.  In this regard, there is external evidence of significant and appreciable weight loss and also some collateral evidence from individuals who spoke to the defendant in the days before the events in question; one spoke of the defendant being altered in her demeanour (“seemed a bit off”) and another of her seeming “lonely” and “withdrawn”.  Dr Lawrence also observed that in any event,

“many people who are suffering from significant depressive disorders do manage to function up to a point and that those around them may not be aware of the extent or severity of their suffering of the depressed person until it is made known in some rather more forceful way, and I believe that that is, in fact, what happened here.”

1. In the circumstances of this case, I am satisfied on the balance of probabilities that the major depression suffered by the defendant in the context of her personality disorder brought about a substantial impairment of the defendant’s capacity to know that she ought not to do the acts resulting in the death of her daughter. Section 304A of the Criminal Code has the effect in those circumstances of reducing the charge of murder to one of manslaughter.

Orders

1. I find that at the time of the alleged offence:

1. the defendant was not of unsound mind as described in Schedule 2 to the Mental Health Act 2000;  but

2.          she was of diminished responsibility.

1. I am satisfied on the material before the court and find that the defendant is fit for trial.  I order that proceedings against the defendant for manslaughter be continued according to law.