Re Andrew Kelly

[2005] QMHC 3

MENTAL HEALTH COURT

CITATION: 

Re Andrew Kelly [2005] QMHC 003

PARTIES:

REFERENCE BY DIRECTOR OF MENTAL HEALTH IN RESPECT OF ANDREW KELLY

PROCEEDING NO:

No. 0056 of 2004

DELIVERED ON:

19 April 2005

DELIVERED AT:

Brisbane

HEARING DATE:

14 April 2005

JUDGE:

ASSISTING PSYCHIATRISTS:

Holmes J

Dr J F Wood
Dr J M Lawrence

FINDINGS AND ORDER:

I find:
1. That the defendant was not of unsound mind,
as defined in schedule 2 to the Mental Health Act
2000, at the times of the alleged offences;
2. That the defendant is fit for trial.
I order that the proceedings against the defendant for
all of the alleged offences be continued according to

law.

CATCHWORDS:

MENTAL HEALTH – DECLARATION OR FINDING OF
MENTAL ILLNESS OR INCAPACITY – unsoundness of
mind – voluntary intoxication – where defendant is charged
with breaches of a domestic violence order, entering a dwelling house with intent, assault occasioning bodily harm whilst armed, wilful damage and breaches of bail – where defendant suffering from bipolar disorder – whether defendant deprived of capacities – where defendant had been consuming large amounts of cannabis at times of alleged offences – where expert psychiatric opinion differs as to relative contribution of cannabis intoxication – whether

intentional intoxication precluded finding of unsoundness of mind within definition in Schedule 2 to Mental Health Act 2000 (Qld)

Mental Health Act 2000 (Qld), Schedule 2

COUNSEL:

Mr Shepherd for the defendant
Mr Isdale for the Director of Mental Health

Mr Pointing 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

1. HOLMES J: The defendant, Andrew Kelly, is charged with a number of breaches of a domestic violence order, as follows:  two breaches on 6 March 2003; one breach on 7 March 2003; five breaches on 8 March 2003; three breaches on 9 March 2003; one breach on 10 March 2003; two breaches on 11 March 2003; and one breach on 12 March 2003.  He is also charged with one count of entering a dwelling house with intent with circumstances of aggravation on 25 July 2003, and on the same date with assault occasioning bodily harm whilst armed, wilful damage and two breaches of bail. 

1. The background to what I will refer to as “the March charges” is, in brief, as follows:  on 3 March 2003 a temporary protection order was made in favour of the defendant’s wife and two children.  The order precluded the defendant from having any contact with his wife and children except as agreed between him and his wife in writing or as permitted by an order under the Family Law Act 1975 (Cth). The order also prohibited him from going within 50 metres of premises where his wife and children resided without written consent. Over the nine days following the making of the order, it is alleged, the defendant breached it by ringing his wife and attempting to talk about custody and access issues, and, on one occasion, about the prospect of his wife returning to use of her maiden name. He also rode his motor cycle past the house where his family lived, five times over a two day period; he told police he had done that in an effort to see his children. Finally, towards the end of this period, the defendant went to his family’s house, spoke to his daughter, retrieved the family dog and proceeded to leave two messages about it on his wife’s mobile phone, one demanding that she organise a meeting with their children and another saying that he would treat the dog’s worms and fleas. On the occasion of his last arrest for breaches of the protection order, the defendant asserted that the conditions of the order had not properly been explained to him by the magistrate or the court staff.

1. The second set of alleged offences (“the July offences”) involved the defendant getting into the house of an acquaintance at night and assaulting him repeatedly with a stick, for no discernible reason.  That man’s car was also found to have been damaged, giving rise to the wilful damage charge. The breaches of bail were committed after the defendant’s arrest for the assault.  He had given an undertaking not to go within 200 metres of the victim’s residence and to reside at an address in another town; he was arrested for breaches in both respects.

1. The defendant was examined by Dr Fama and Dr Heffernan, both of whom diagnosed bipolar affective disorder and both of whom thought the defendant had been suffering from hypomania during the March episode and full blown mania during the July episode.  When the defendant saw Dr Fama in February 2003, he gave him a history of regular cannabis use over many years at a rate of half to three quarters of an ounce per week, imbibed through a bong.  He told Dr Fama that his daily smoking of marijuana had continued throughout the period of the alleged offences.  To Dr Heffernan, the defendant reported a much more significant rate of use, saying that over the period of some months prior to the March offences he began to increase the amount of money he spent on cannabis and was smoking anywhere from “12 to 30 cones a day”, amounting to several grams a day.  He also volunteered that he was smoking hydroponic cannabis with a stronger THC content.  On 25 July he had been smoking “a lot of marijuana” and not eating.

1. Dr Fama considered that the defendant’s mental illness would have been such as to deprive him of the capacities to control his actions and to know that he ought not to do the acts in question through the periods of both the March and the July offences. In respect of the March offences, he reached that conclusion on the basis partly of the defendant’s history of excessive energy, sleeplessness, losing weight, and his description of himself as “spinning around like a top”, together with his actual conduct.  The defendant believed the court order permitted him to communicate with his ex-wife in order to have contact with his children.  He seemed, Dr Fama considered, to have been preoccupied with silly things, such as whether his wife would revert to her maiden name.  His persistence in offending was consistent with an incapacity to perceive what he was doing was wrong.  He was fairly described as out of touch with reality.  By the time of the July offences, he was in a frankly manic state, with psychotic symptoms.

1. Dr Heffernan, while accepting that the defendant was suffering from symptoms of hypomania during March 2003, did not think that those symptoms had deprived him of the relevant capacities in relation to the March offences.  The defendant had identified to him two reasons for his behaviour: the first was that he did not fully understand the terms of the temporary protection order and the second was that his desire to see his children caused him to offend.  Those, Dr Heffernan said, seemed properly reasoned motivations for the offences.

1. Dr Heffernan did consider that in relation to the July offences the defendant was deprived of the capacity to know that he ought not to do the acts.  However, in relation to those alleged offences, Dr Heffernan considered that intoxication had contributed to his deprivation of the relevant capacities. His evidence was that it was not helpful to attempt to separate the effects of cannabis intoxication and those of the mental disorder, because he considered that the two had what he described as a “synergistic” effect.  That was not to say, however, that both did not contribute.

1. I prefer Dr Heffernan’s view as to the defendant’s state of mind during the March offences.  The alleged conduct over the nine day period in March 2003 was not, I think, much different from the conduct of many respondents to domestic violence protection orders: manifesting difficulty in accepting that the relationship is over, disbelief that the partner is serious in ending contact, and, understandably, a desperation not to lose contact with the children.  An issue which Dr Fama regarded as relatively trivial, whether the defendant’s wife might change her name, is one which, nonetheless, often looms large in marital breakdown, in the absence of any psychiatric disorder. The defendant’s construction of the terms of the order as permitting communication with his wife was wrong, but was not entirely divorced from reality: he was permitted to contact her provided she first agreed in writing. And although the behaviour was persistent over the nine days, it seems that at the end of that relatively short period the defendant did manage to accept the legal and factual situation, at least to the extent of desisting from further breaches.  That background to the alleged offending in my view supports Dr Heffernan’s assessment of the defendant’s mental state as not depriving him of any of the relevant capacities. 

1. As to the July offences, it is clear that Dr Heffernan obtained a history of cannabis use of a much more significant order than did Dr Fama.  Nonetheless, Dr Fama did not exclude any influence of cannabis intoxication in the defendant’s conduct at the relevant time. He characterised the difference between his opinion and Dr Heffernan’s as one about the relative importance of the defendant’s mania and his marijuana intoxication. In his report, he said this: “Though there would have been some cannabis intoxication, the history indicates that any such intoxication would not have been an essential contributory factor”.  In oral evidence he repeated that he thought it would have made some contribution to Mr Kelly’s mental condition, but it was not an essential factor.  It was his view that the events of 26 July could have occurred by reason of the defendant’s bipolar affective disorder, without his having used drugs.  However, what seems to me at issue is, not so much whether the disorder of itself might have produced the loss of capacities, but whether the cannabis intoxication, which was present, did in fact contribute to that result. 

1. The definition of unsoundness in Schedule 2 to the Mental Health Act 2000 precludes its application to “a state of mind resulting, to any extent, from intentional intoxication”. If, on 26 July, cannabis intoxication did contribute to the defendant’s “state of mental disease” so as to play a part in depriving him of the capacity to understand what he was doing, or to control his actions, or to know that he ought not to do those acts, it seems to me, by reason of that definition, that he cannot rely on unsoundness of mind as an excuse from criminal responsibility. I accept Dr Heffernan’s opinion in this regard, and that to similar effect expressed by the assisting psychiatrists, Dr Wood and Dr Lawrence. My conclusion is that cannabis intoxication did contribute to some extent to the defendant’s state of mind and consequent loss of capacity.

1. In oral evidence, Dr Fama raised in passing the possibility that the defendant’s intoxication by cannabis should be regarded as not “intentional” within the meaning of the definition because of the impulsivity associated with the disorder, in effect rendering his ingestion involuntary.  His suggestion in the present context was really of a speculative nature.  I am inclined to think that the intention referred to is that accompanying the physical acts which cause intoxication, rather than being a reference to the larger causes of the conduct.  There is nothing in the evidence which shows that any particular ingestion by the defendant of cannabis was or was not independent of his own volition; and as Dr Heffernan pointed out, his long standing pattern of cannabis consumption would suggest merely a continuance at a heightened rate.

1. I conclude that the defendant was not of unsound mind at the time of any of the alleged offences.  The evidence is that he is presently fit for trial.  The charges will proceed according to law.

1. An application was made for a non-contact order in respect of the complainant in the July offences, but given my findings no jurisdiction exists to make such an order.