Re Austin
[2013] QMHC 21
•15 May 2013
MENTAL HEALTH COURT
CITATION:
Re Austin [2013] QMHC 21
PARTIES:
REFERENCE BY DIRECTOR OF MENTAL HEALTH IN RESPECT OF RHYS MICHAEL AUSTIN
PROCEEDING NO:
0185/11
DELIVERED ON:
15 May 2013
DELIVERED AT:
Brisbane
HEARING DATE:
18 April 2012, 24 April 2012, 24-25 July 2012, 31 July 2012, 3 December 2012, 6 February 2013 and 27 March 2013
JUDGE:
Ann Lyons J
ASSISTING PSYCHIATRISTS:
Dr E N McVie
Dr F T VargheseFINDINGS AND ORDERS:
The defendant was of unsound mind at the time of the commission of the alleged offence of common assault on 21 January 2007.1.
The proceeding against the defendant in relation to the alleged offence of common assault on 21 January 2007 is discontinued and further proceedings must not be taken against the defendant for the acts constituting that offence.2.
3. There is a reasonable doubt, pursuant to s 268 of the Mental Health Act 2000 (Qld), that the defendant committed the alleged offence of possession of tainted property on 2 April 2010.
The defendant is fit for trial in relation to the alleged offence of possession of tainted property on 2 April 2010.4.
The proceeding against the defendant in relation to the count of possession of tainted property on 2 April 2010 is to continue according to law.5.
There is no fact that is substantially material to the opinion of an expert witness as defined in s 269(1) of the Mental Health Act 2000 (Qld) that is so in dispute it would be unsafe to make a decision on unsoundness of mind or diminished responsibility in relation to the count of murder on 30 March 2010.6.
The defendant was of unsound mind at the time of the commission of the alleged offence of murder on 30 March 2010.7.
The proceeding against the defendant in relation to the alleged offence of murder on 30 March 2010 is discontinued and further proceedings must not be taken against the defendant for the acts constituting that offence.8.
A Forensic Order is required detaining the defendant to The Park High Security Program Authorised Mental Health Service.9.
Limited Community Treatment is not approved.10.
The psychiatric and psychological reports presented during the hearing and the transcript of the hearing be released to the parties and the Attorney-General for use in the Metal Health Review Tribunal proceedings.11.
CATCHWORDS:
MENTAL HEALTH – DECLARATION OR FINDING OF MENTAL ILLNESS OR INCAPACITY – where defendant charged with common assault, murder and possession of tainted property – where defendant diagnosed with paranoid schizophrenia – where defendant told numerous conflicting accounts of the events surrounding the alleged murder – whether a dispute of fact substantially material to the opinion of an expert witness as defined in s 269(1) of the Mental Health Act 2000 (Qld) arises – whether defendant was of unsound mind as defined in the Schedule of the Mental Health Act 2000 (Qld) at the time of the alleged offences – whether there was reasonable doubt pursuant to s 268 of the Mental Health Act 2000 (Qld) that the defendant committed the alleged offence of possession of tainted property – whether a Forensic Order should be made – whether Limited Community Treatment should be approved
Criminal Code Act 1899 (Qld), ss 26, 27, 405
Mental Health Act 2000 (Qld), ss 238, 268, 269A-G (Qld) v Bosanquet & Ors [2012] QCA 367, considered
R v Presser [1958] ALR 248, considered
R v Schafferius [1987] 1 Qd R 381, applied
Re W (Unreported, Mental Health Tribunal, Dowsett J, 14 October 1997), consideredCOUNSEL:
J R Hunter SC for the defendant
J Tate for the Director of Mental Health
D L Meredith for the Director of Public Prosecutions
B Campbell for the Director of Public prosecutions on 6 February 2013 and 27 March 2013SOLICITORS:
Legal Aid Queensland for the defendant
Crown Law for the Director of Mental Health
Director of Public Prosecutions (Qld)
A LYONS J:
The alleged offences
Rhys Michael Austin is charged with 3 offences:
(i) Common assault on 21 January 2007;
(ii) The murder of Bianca Girven on 30 March 2010; and
(iii) Possession of tainted property on 2 April 2010.
The charge of common assault arises out of circumstances where it is alleged Mr Austin attempted to choke a co-patient at the Mental Health Unit of the Princess Alexandra Hospital (“PAH”) in 2007 during an admission from 4 January 2007 until April 2007. During that time, he shared a bedroom with the victim. The details of the offence came to light when detectives were investigating the murder offence in 2010. The victim indicated that during the night of 21 January 2007, he awoke to realise that his room mate, Mr Austin, had wrapped a wet towel around his neck and was attempting to strangle him. Whilst he was doing this, Mr Austin was yelling out “you were talking about my family, I’m going to kill you”.[1] Staff subsequently intervened.
[1]Report of Dr Grant, dated 13 November 2011, at p 2.
The charge of possessing tainted property relates to a phone owned by a taxi driver which was found by police when they conducted a search of Mr Austin’s bedroom during the murder investigation. The taxi driver stated that his phone had been stolen one night in October 2009 when he was transporting a male and female to a house in a quiet back street behind the Mount Gravatt Hotel.
The most serious charge Mr Austin faces is the charge of murder of his girlfriend Bianca Girven on 30 March 2010. Ms Girven had been Mr Austin’s girlfriend for a number of years and was 22 years old at the time of her death.
This Reference
In a Reference filed on 11 July 2011, the Director of Mental Health has referred the question of Mr Austin’s mental condition at the time of the commission of those alleged offences to this Court for determination. The hearing of this Reference commenced in April 2012 and was not concluded for almost a year due to some significant developments which arose during the course of that year. Of particular significance was the fact that there was information from the treating team at The Park Centre for Mental Health team that Mr Austin was actively concealing some of his psychotic symptoms and that he had also revealed previous homicidal ideation. At a later stage there was an indication that Mr Austin was recanting some of the information he had previously provided to some of the reporting psychiatrists. Those factors meant that a number of the reporting psychiatrists needed to be recalled to give further evidence or to provide further reports in relation to their initial diagnosis.
The Brief of Evidence in this Reference was also extensive. There have been multiple reports from the reporting psychiatrists and the treating team. In order to prepare those reports it was also necessary for the witnesses to consider large volumes of hospital records and other medical reports in order to give evidence and prepare lengthy reports. I consider that the complexity of the issues in this case required an examination of those reports and the evidence upon which they are based in some detail particularly as the views of some of the reporting psychiatrists changed or were refined over the course of the year. I also consider it important that these reasons fully explore all of the issues which arose for consideration at the time of the hearing of the Reference so that due consideration can be given to those issues in the future.
The circumstances surrounding the alleged murder
On 30 March 2010 at 11.23 pm, an ambulance was called to Mr Austin’s family home at Mount Gravatt. Ambulance officers found Ms Girven unconscious in the back of a white van which had been driven there by Mr Austin. Ms Girven was taken to the PAH intensive care unit with a neck compression injury. She was placed on life support and died on 31 March 2010. A post mortem showed that she died from hypoxic ischemic encephalopathy due to, or as a consequence of, asphyxia.
At the time of Ms Girven’s murder, Mr Austin was under the care of the PAH Mental Health Service and was being seen by psychiatrists and mental health staff at the Macgregor Community Clinic. He was on the anti psychotic Abilify and the antidepressant Zoloft but had a history of non compliance with his medication.
The Police Interview on 31 March 2010
Mr Austin took part in an extensive interview with police which commenced in the early hours of the morning of 31 March 2010 and terminated in the evening of that day. He indicated to police that he and Bianca had driven to the lower car park near the Mount Gravatt lookout. They remained in the van for a short time before they moved into the back of the van. He said that after a short period of time the side sliding door of the van was thrown open and someone reached into the vehicle, struck Bianca, grabbed her and dragged her out of the vehicle. Mr Austin then told police that he was hit on the head by another person causing him to fall head first onto the bitumen. He was then told to stay on the ground and not get up. He stated that as he lay on the ground he heard gurgling and choking noises. He also stated that he felt one of the perpetrators reach into his pocket, remove his mobile phone and smash it on the ground.
Mr Austin told police that after they left the area, he found Bianca lying unconscious on the ground. He said he attempted CPR with no response. He was then able to search the area, locate his mobile phone and sim card. He then lifted Bianca into the van and drove to his home nearby to get help.
The appointment with Dr Dark on 1 April 2010
Subsequent to the extensive police interview on 31 March 2010, Mr Austin was seen at 9 am on 1 April 2010 by his psychiatrist Dr Frances Dark, who had been the principal psychiatrist treating him for his mental illness since 2009. She conducted a mental state examination and tape recorded her interview with him. Two days later, on 3 April 2010, Dr Dark admitted Mr Austin to the PAH due to his increasing paranoia. On admission, his urine drug screen (“UDS”) was positive for opiates but negative for cannabis and amphetamines. Mr Austin stated that he had taken some significant quantities of an over-the-counter cough medicine at the time of the killing.
The admission notes on 3 April 2010 indicate the following:
“Strong persecutory delusions, ideas of reference, getting message from TV, visual hallucinations last night I have seen someone in that house, auditory hallucinations unable to elaborate.”
On 29 April 2010 the UDS was positive for cannabis and negative for opiates and amphetamines. Mr Austin remained in the hospital for over two months and was discharged on 7 June 2010. He was treated initially under an Involuntary Treatment Order and subsequently as a voluntary patient. He had further admissions in June and July 2010 when he presented intoxicated with LSD and alcohol.
Past forensic history
By the time of Ms Girven’s death in March 2010, Mr Austin had an extensive history of mental illness and had been previously charged with a number of criminal offences which had been referred to this Court. He had also had an admission to the PAH in February 2010, a month before Ms Girven was killed. There is a ward round entry which indicates that during that February admission, Mr Austin had felt very paranoid and believed that there were lots of people watching him.
The medical reports indicate that Mr Austin’s extensive psychiatric history dates back to 2005 when he was diagnosed with schizophrenia by Dr Todd Wakefield. He had an admission to the Toowong Private Hospital in July 2006 when he was commenced on Olanzapine and Sertraline. He was discharged in September 2006. During that admission he tested positive to amphetamines on at least one occasion and was absent without leave on several occasions. He deliberately self harmed on two occasions by cutting his arm with a razor. He was commenced on the anti psychotic Olanzapine and prescribed the antidepressant Mirtazapine, which was subsequently changed to Sertraline.
Following that inpatient stay, he recommenced his drug use and was non compliant with medication. He was re-admitted to Toowong several weeks later but discharged after a brief stay. He was then brought to the PAH emergency department on 28 November 2006 and admitted involuntarily to the secure wing of the Mental Health Unit. He was recommenced on Olanzapine. He was discharged after a two week admission but it was noted that he was still experiencing some psychotic symptoms.
In July 2006, Mr Austin had been charged with the offences of entering premises with intent, robbery with actual violence whilst armed, deprivation of liberty and possession of a knife. The offences were committed against a background of substance abuse. It is alleged he entered a Night Owl store wearing a black beanie with fabric across his face, armed with a knife.
In November 2007, Dutney J, sitting in this Court, found him to be of unsound mind in relation to those offences. His Honour noted that the offences occurred shortly after a discharge from hospital and were part of bizarre and confused behaviour which he considered to be “odd” because they were attempted in an ineffectual manner. Mr Austin was placed on a Forensic Order. He had a subsequent admission to the PAH in late 2007, after which he was case managed in the community. He had multiple medication trials, including Clozapine between 2008 and 2009. He admitted to intermittent alcohol use whilst on the Forensic Order.
In August 2009, the Forensic Order was revoked by the Mental Health Review Tribunal (“MHRT”), but Mr Austin continued to be case managed on a voluntary basis by the PAH Mobile Intensive Treatment Team (“MITT”).
Dr Dark’s initial assessment
Dr Frances Dark is a consultant psychiatrist with the Metro South Health District. Dr Dark gave oral evidence at the hearing on 24 July and 25 July 2012. She also provided an undated update report which was received on 30 August 2012 and a letter dated 9 January 2013.
Dr Dark indicated her first contact with Mr Austin was after his admission to the PAH from Toowong Private Hospital. He subsequently came under the MITT program in 2007 and she became involved as his principal psychiatrist in 2009. Dr Dark advised that the MITT team delivers intensive outreach treatment in the community and that Mr Austin was seen very frequently. He was initially seen weekly and received intensive psychological therapy with positive symptom management for his residual symptoms. Dr Dark indicated that she would have seen Mr Austin at least 100 times prior to the commission of the alleged offence.
Dr Dark indicated that Mr Austin has a diagnosis of schizophrenia, predominantly paranoid schizophrenia, and that he has had that diagnosis since 2006. She did not consider his personality structure was such that he had a personality disorder and did not consider he had antisocial personality traits or narcissistic personality traits as there was no evidence of a conduct disorder or other disorders in childhood. In her view, he was not a person who tended to provoke aggression and he did not possess a disregard for the rights of others. Neither did she consider that he failed to conform to lawful norms or was deceitful. She did not consider he showed a lack of remorse for negative activities.
Dr Dark indicated Mr Austin had some grandiose traits but that there is often an associated grandiosity with paranoia. She stated that Mr Austin feels that he is singled out and a lot of his symptoms have a grandiose flavour. She considers that this grandiosity is not a feature of his personality, but rather consistent with the diagnosis of paranoid schizophrenia.
Dr Dark stated that she had seen Mr Austin prior to the alleged offences on 9 February 2010 when there was concern that he was showing early signs of a relapse. Dr Dark indicated she had last seen Mr Austin on 15 February 2010, about six weeks before Ms Girven’s death. Dr Dark indicated that Mr Austin’s mental state would fluctuate between appointments, depending on the stressors in his life as well as his compliance with medication.
Dr Dark stated that on 1 April 2010, the day after Ms Girven’s death, she conducted an examination into his mental state which was some thirty six hours after the alleged offence. She considered it would be important to have an assessment as soon as possible after the events. Dr Dark stated that when she examined him on 1 April 2010, he “did have psychotic symptoms”.[2] She also indicated that he was distressed, in shock and numb. In her evidence she stated that she explored with him whether he was having any dissociative experiences but that he had indicated he was not and that he was able to keep track of time. On her examination of him, Dr Dark stated that he “did not report or appear to have a marked acute exacerbation of his psychotic symptoms despite evidence of residual psychosis” (original emphasis).[3]
[2]T3-11 (24 July 2012), at line 3.
[3]Update report of Dr Dark, received 30 August 2012, at p 2.
Dr Dark told the Court that Mr Austin always has residual symptoms and that he experiences hallucinations ‘all the time’.[4] She indicated, however, that the hallucinations are not as distressing to him as his paranoia when he feels that he is under threat.[5] Dr Dark stated that when he is floridly psychotic, he has paranoid delusions which predominate over his hallucinations. Dr Dark stated that Mr Austin has auditory hallucinations, usually in the nature of a running commentary and that he has ‘thought broadcasting’ believing that his thoughts are available to other people. Dr Dark stated that his hallucinations have been of a command nature in the past. On her assessment of him on 1 April 2010, however, Dr Dark stated that none of those features were prominent. She indicated that usually the command hallucinations were more prominent in the early part of his illness.
[4]T3-13 (24 July 2012), at line 3.
[5]T3-13 (24 July 2012), at lines 2-5.
Dr Dark stated that longitudinally, Mr Austin did not present a coherent delusional system to her but that he had pseudo philosophical ideas and grandiose delusions of being “special” and that he was “selected to see what happens to me”.[6] Dr Dark indicated that the delusional system that was subsequently set out in Dr Mann’s report had not been revealed to her and she considered that Dr Mann was able to access a more complex delusional system than she had been able to ascertain. She stated that whilst he had a history of delusional beliefs about computers controlling the world, the beliefs he disclosed to her were not as systematised as those he disclosed to Dr Mann. Dr Dark stated that she had done a lot of work with Mr Austin to control his positive symptoms and that “He’d developed a number of strategies to deal with those and put them in perspective.”[7]
[6]Update report of Dr Dark, received 30 August 2012, at p2.
[7]T3-31 (24 July 2012), at lines 25-26.
In response to questions, Dr Dark stated that she was not aware that Mr Austin had previously tried to attack Ms Girven with a knife. She also agreed that it was possible that Mr Austin may not have disclosed information to her because she was a woman and that he may well have been more forthcoming with men. She stated that she had not explored some issues with him such as “his sexual relationship and his issues in arousal”.[8]
[8]T3-35 (24 July 2012), at lines 52-53.
Dr Dark indicated that she did not necessarily consider that Mr Austin was guarded with her during her initial assessment on 1 April 2010 but rather she was concerned that Mr Austin was:
“trying to make sense of everything that had happened, and I think I just wonder how much delusional work has actually followed on from such a catastrophic event, and because he has been isolated from other sources of contrary information.”[9]
[9]T3-13 (24 July 2012), at lines 52-56.
Dr Dark stated that the version of the events that Mr Austin gave her involved two men assaulting him and Bianca. He told her that the door of the van had been opened whilst he was speaking to Bianca in the back of the van. He stated that at the time he was “talking to Bianca about genres, opinions – opinions concerning thoughts. Information that Rhys had not shared with anyone before.”[10] Dr Dark also noted that he told her that he felt that “confiding his private thoughts to Bianca may have put her at risk, and unwilling to go into them in detail as we would be put at risk. Some concern he may still be at risk”.[11] Dr Dark stated that her notes recorded the following:
“Impression residual psychosis but mild prior to event with no clear deprivation of capabilities. Paranoid reasoning about the events subsequently.”[12]
[10]T3-15 (24 July 2012), at lines 30-41.
[11]T3-15 (24 July 2012), at lines 54-57.
[12]T3-16 (24 July 2012), at lines 12-15.
Dr Dark stated that Mr Austin’s version of events remained consistent for a long period of time despite the fact he was sleep deprived and psychotic. She stated that she did not think he was lying at the time, “I found it, you know, quite a sincere description and his grief also very sincere.”[13] Dr Dark stated that when he was admitted to hospital on 3 April 2010, Mr Austin was very paranoid.
[13]T3-17 (24 July 2012), at lines 44-45.
The assessment by Dr Coyle on 9 April 2010
Mr Austin was assessed by Professor Ian Coyle at the PAH on 9 April 2010 at the request of his legal representatives. Dr Coyle considered that he “exhibited clear signs of paranoia”[14] and noted a history of command hallucinations. He recorded that Mr Austin had heard a young male voice talking to him almost constantly since the death and that the voice “blames him for Bianca’s death and keeps telling him that he could have done better”.[15]
[14]Report of Professor Coyle, dated 20 April 2010, at p 3.
[15]Ibid, at p 5.
Dr Coyle’s report states that:
“Mr Austin gave me a very guarded and inchoate account of a conspiracy involving education and a sub-culture involving death and violence. He told me that it was too dangerous to let me know all of the details as ‘you could get killed’. When I persisted he told me that he had mentioned some of the details of this conspiracy to Dr Dark but told me that he could tell me significant details of the conspiracy. Mr Austin claims there are powerful forces at work that do not want this knowledge to become public.”[16]
[16]Ibid, at p 5.
Dr Coyle then referred to Mr Austin’s account of dark clad assailants who considered that he should not be with someone like Bianca and that he had told her too much and she had to die. Dr Coyle indicated that “Simply put, Mr Austin attributed Ms Girven’s death, at least in part, to things he told her about the conspiracy.”[17] He ultimately considered that not only was Mr Austin suffering from paranoid schizophrenia at the time of the attack, but that “he was suffering from auditory hallucinations at the material time; whether these were directly related to Ms Girven’s death is unclear.”[18] Dr Coyle considered that the story that Ms Girven’s death was related to a conspiracy was “clearly a function of his paranoia”.[19]
[17]Ibid, at p 6.
[18]Ibid, at p 8.
[19]Ibid, at p 8.
The Report of Dr Morris dated 29 April 2010
Mr Austin was also interviewed by the psychiatrist Dr Philip Morris at the request of his legal representatives on 20 April 2010. Dr Morris provided a report dated 29 April 2010. Dr Morris reported that Mr Austin felt guilty about telling Ms Girven ‘profound’ truths he knew of when he talked to her in the van. He continued:
“He would not be specific about what he told Bianca. He is reluctant to tell anyone (including his doctors) about his ‘profound’ thoughts for fear that if others know they will be killed. The thoughts involved beliefs about spirits, powerful beings and God.”[20]
[20]Report of Dr Morris, dated 29 April 2010, at p 2.
Dr Morris noted that Mr Austin believed Ms Girven had been killed by the assailants who had been listening to the conversation and that she had to be killed because of what he told her. He noted that he was distressed by severe anxiety and “anxious about telling others about his ‘profound thoughts’.”[21]
[21]Ibid, at p 2.
Dr Morris indicated that Mr Austin told him of his experience with his “voices” which Dr Morris noted were predominantly male voices inside his head “commenting on his thoughts” which at times “can command him to do things”.[22]
[22]Ibid, at p 2.
Subsequent Events
The police brief indicates that, after extensive investigations, they failed to identify any credible evidence to support Mr Austin’s version of two unknown assailants attacking him. Mr Austin was ultimately arrested and charged with murder on 5 August 2010. Mr Austin, however, continued to maintain his innocence and retold his story on a number of occasions.
Mr Austin admitted to the killing for the first time when he was interviewed by Dr Mann for the purposes of a s 238 Mental Health Act 2000 (Qld) (the “Act”) report in May 2011, which was 14 months after the alleged murder and nine months after his arrest.
Dr Mann’s report and evidence to court on 24 April 2012
Dr Mann’s evidence was that during his extensive interviews with Mr Austin on 10, 11 and 19 May 2011, Mr Austin confessed that he had killed Bianca and that he had fabricated the alternative story about two men attacking them in the van.
Dr Mann stated that Mr Austin told him that he had had experiences where he talked to Bianca telepathically prior to her death and that before she died she could make him do things. He indicated that when he was speaking to Bianca, he was unsure if he was speaking to her in his head or in person. He also said that there was the spirit of Bianca and also Bianca herself. He told Dr Mann that he felt that in retrospect, most conversations he had with her were talking to her spirit and not herself. Since her death, he stated that he has an awkward, strange relationship with her spirit and in regard to her death he indicated “she’s satisfied with what’s been done”.[23] Mr Austin said that in the days before her death he had lots of conversations with her spirit and he believed that she knew she was going to die. He stated, “I had talked to her about it, there was a general plan between me and her spirit. She (Bianca’s spirit) was going to prepare Bianca for her death”. He then stated, “I’m not sure if Bianca the spirit told Bianca the person”.[24]
[23]Report of Dr Mann, dated 2 June 2011, at p 7.
[24]Ibid, at p 7.
Dr Mann indicated that when he asked Mr Austin why he killed Bianca, he said “The reason, a lot of reasons, I thought about it about a lot, I felt her death could be justified, I felt it was needed for society. He went on to say ‘a lot revolved around me,’ ‘I had to prove that I could kill her to God, because he had challenged me so many times and I’d never succeeded.’”[25] When asked if he had tried to kill her before, Mr Austin replied “yes, in 2007 I tried to cut her on the neck, not sure what stopped me, I didn’t have the ability, not the right time”.[26]
[25]Ibid, at p 7.
[26]Ibid, at p 7.
Dr Mann said that on the day he killed Bianca, Mr Austin had recalled that, ‘“It felt like it was the right time, everything was in place, I was able to do it.’ He went on to say, ‘Leading up to that day so many things happened’”.[27] Mr Austin had continued “It’s part of the luna cycle, relevant time, significant point on the calendar”[28] and that whilst he had semi-planned it, the full moon was significant and he was not aware of the significance until that night. He said he was not aware he was going to do it until he did it. When asked what he thought would happen after the murder, he said ‘“not really sure, I thought that her life would be preserved and used by God or other great beings, she would live on’ and ‘I thought she would become a God, not sure if God told me this or I thought it myself.’”[29]
[27]Ibid, at p 7.
[28]Ibid, at p 7.
[29]Ibid, at p 7.
Dr Mann indicated that when he asked what actually happened after he killed Ms Girven, he replied, “I didn’t become God, I thought if she died her thoughts would be collected and she would be a supreme being on another planet, then I thought her thoughts would be lost in space as it would be so hard to collect that information from so far away”.[30] He denied to Dr Mann that he had smoked cannabis that day. He recalls buying a bottle of cough syrup which made him sick. He indicated to Dr Mann that they had been to the New Moon Festival and they had left at about 10 pm and decided to go to the Mount Gravatt Lookout on the way back to his parents’ house.
[30]Ibid, at p 8.
Dr Mann said that Mr Austin told him that Mount Gravatt was significant to him and that his parents’ house backed onto the forest. He stated he felt he was connecting with God. He told him he did not know he was going to do it until he actually hit Ms Girven. In relation to the assault, he stated:
“I was sitting there across from her, I thought I should strangle her, I took off a ring that I was wearing, my hand hit her in the face, I did that, I’ve never done that before. It seemed the right moment for me. I’m not sure if I was controlling myself as I got up and went behind her and put her in a choke hold”.[31]
[31]Ibid, at p 9.
He continued, “She didn’t say anything, I was confused at what I was doing” and “I put her in a hold and that was about it”.[32] He told Dr Mann that he kept the choke hold going for about 10 minutes and that Ms Girven stopped breathing and eventually he released her and she was not moving. When he checked her pulse, it was very weak.
[32]Ibid, at p 9.
Dr Mann stated that Mr Austin said that, after he strangled her, he panicked. He knew that he had wanted it to happen and to succeed and to show God that he could do it but then said he did not know what to do and thought he had to cover it up. He said, “I think I expected God …, so obsessed with what I had to do, I didn’t think what was suppose to happen afterwards”.[33] Mr Austin said, “I was put on the spot and thought I had to cover it up. I thought I’d try and cover it up, the crime scene so people thought someone else did it”.[34] He stated, “I took Bianca out of the van, carried her body out of the van and put it on the grass, stood there for a bit, walked around, doing nothing, bit confused”.[35]
[33]Ibid, at p 9.
[34]Ibid, at p 9.
[35]Ibid, at p 9.
Dr Mann indicated that Mr Austin stated that during that period he burnt his mobile phone SIM card and threw the burnt card and mobile phone on the ground. He stated that he was “thinking up a story of what I would say and the story of the two men coming to attack us and they wanted to kill Bianca and leave me.”[36] He then stated that he picked up Bianca, put her in the van and drove her back to his parents’ place.
[36]Ibid, at p 9.
Mr Austin told him, “I thought, like it was difficult, a bad thing to do. I don’t know if it was the wrong thing to do. I think it was the right thing to do, not morally, but in terms of what God wanted.”[37] He then stated, “God was looking for a story to tell, something that’s important, controversial, all sorts of things”.[38] He stated that when he was holding Bianca he got a message from God saying congratulations.
[37]Ibid, at p 9.
[38]Ibid, at p 9.
In terms of his understanding of God, Dr Mann said that Mr Austin stated that God was a computer who broadcasts thoughts into his head. When he asked him why he had covered up his actions, Mr Austin told him that he had had thoughts of admitting it but he was not ready to admit it. H e denied any motive for the murder other than to complete a task for his computer god and denied that he attempted to have sex with Bianca or had sex with her that night. Mr Austin also denied sex was related in any way to the events on that evening but said that sex was involved with another previous incident when he had cut her neck during sex.
Dr Mann indicated that when he asked Mr Austin about the fabricated story of the two attackers, he had replied that it was like a metaphor. He believed that there were “two God like entities, programs that caused this to happen, one was the main God I hear in my head the other was a part of that God. He was preparing me for what was going to happen. He was preparing me for either outcome...I made a metaphor for these entities, dressed in black because what they were doing was very dark.”[39]
[39]Ibid, at p 10.
Dr Mann stated that Mr Austin told him that he had had thoughts of homicidal acts in the past and that there were previous times where he ran away from a meditation camp and an elderly couple invited him to their caravan for a cup of tea and he thought it was an opportunity to kill them which had been given to him by God but then felt it was not the right time. He then recalled another time in 2006 when he was at the Toowong Private Hospital and he had become close to another female patient who had tried to commit suicide the night after they had sex. He said he asked her if she wanted to die and that he could kill her if she liked. He also recalled that they had used razors to cut each other while having sex. He also said that there were other times he was given the chance to kill but could not recall. He remembered that during the admission to the Toowong Private Hospital, he was found to have a knife in his possession and reported that he carried a knife around at all times as he felt paranoid. He also said that he had a knife to give himself a better chance of doing something. He added that he just liked knives.
In relation to the common assault charge, Dr Mann indicated that Mr Austin said that he remembered waking in the night and hearing voices that told him to attack the man and he did. He said he was hearing some voices as usual and that, at the time, he did not believe it was God, just a person talking to him. He stated he saw it as a chance to kill someone but he woke up and he did not continue because it was not the right time.
In relation to the possessing tainted property charge, Dr Mann stated that Mr Austin cannot recall a mobile phone and when police told him about it, he initially thought it was planted by the police.
Dr Mann diagnosed Mr Austin with schizophrenia paranoid type and considered that at the time of the offences, he was suffering from psychotic symptoms which included delusions and abnormal perceptual experiences. In terms of Mr Austin’s capacity at the time of the alleged murder, Dr Mann considered that for four years Mr Austin suffered from delusions, including beliefs about a computer god. These beliefs led him to believe he should kill someone. The delusions were reinforced by auditory hallucinations which he described as telepathy. He believed that his god wanted him to kill Bianca to progress along the path to becoming a god himself. He considered killing other people on several occasions in the past.
Dr Mann stated:
“He believed that his God wanted him to kill Bianca Girven, to progress him along the path to becoming a God himself. It seems that he considered killing other people on several occasions in the past, including when he attacked Michael Whiteley. He concealed these murderous thoughts from his family, girlfriend and treating doctors. He discussed some of his delusional beliefs with family and treating clinicians, but kept parts of his delusional system secret.
After he killed Bianca Girven, he concocted an unconvincing story about two masked men murdering her. He told this false story to his family, police and his treating clinicians for fourteen months before admitting his guilt. It could be argued, that he denied his guilt because he knew that he ought not murder Bianca, and that he wanted to avoid the consequences. It is also possible that he murdered Bianca Girven for reasons, such as anger or jealousy. He may have concocted his false story in order to avoid prison and when it became apparent to him that this would not be successful, he could have embellished his psychotic symptoms in order to gain a mental health defence. I do not believe however, that the clinical presentation supports this view.”[40]
[40]Ibid, at pp 15-16.
Dr Mann indicated that Mr Austin denied substance abuse on the day of Ms Girven’s death and the UDS on 3 April 2010 does not suggest he was intoxicated by cannabis or amphetamines. It did detect opiate substances, but there is no clear indication as to the exact quantity and there is insufficient evidence to conclude that the cough mixture would have sufficiently affected his mental state.
In terms of Mr Austin’s state of mind in relation to the assault charge, Dr Mann considers he was driven by a delusional belief that the complainant was going to harm his family and he reported hearing auditory hallucinations urging him on. Accordingly, he considered that at the time, Mr Austin was completely deprived of the capacity to reason as to the moral rightness or wrongness of his conduct and was therefore deprived of that capacity. He did not think that he was deprived of the capacity to control his actions.
Dr Mann’s Addendum Report 4 February 2013
In response to a request that Dr Mann provide an opinion with regards to the issue of a possible dispute of the facts, and whether he maintained the opinions expressed in his earlier reports, Dr Mann stated:
“I agree with the opinion expressed by Dr Voita in her report of 9/1/13. I do not believe there is a dispute of the facts. I maintain the opinion expressed in my earlier reports.”[41]
[41]Addendum Report of Dr Mann, dated 4 February 2013.
Dr Angela Voita’s reports
Dr Angela Voita has been Mr Austin’s treating psychiatrist at The Park Centre for Mental Health (“HSIU”) since August 2012 and had previously assessed him in her role as Acting Director of HSIU in June 2012 when his mental state had deteriorated and he disclosed homicidal ideation. Dr Voita provided a report on Mr Austin’s current mental state dated 29 November 2012 with updated reports dated 9 and 31 January 2013.
Report dated 29 November 2012
In her report of 29 November 2012, Dr Voita stated that Mr Austin’s mental state had fluctuated and in August 2012 he continued to describe a number of psychotic symptoms including auditory hallucinations, passivity phenomena, delusions of reference and bizarre delusions in relation to communications with a computer. Mr Austin had limited insight into his illness. His medication was changed and he was placed on an increasing dose of Ariprazole and his Paliperidone was gradually reduced. Dr Voita noted a marked improvement in his mental state by mid October 2012 which she considered was due to the change in medication and to an improvement of his insight into his mental illness. She stated, however, that on 16 October 2012 he still described daily auditory hallucinations from the computer whom he believes to be God.
Dr Voita indicated that in October 2012, he had better insight into the fact that the symptoms he described were due to his mental illness. She continued;
“When I assessed Mr Austin on the 7th of November 2012 though, I noted a deterioration in his mental state. He was notably thought disordered and preoccupied with the alleged offences. He was seen for a ninety minute interview and initially stated that he believed that it was his own thoughts to kill his girlfriend Bianca. As the interview progressed his thought disorder became more prominent and he described having had thoughts in the past about killing but then communicating with the computer and getting instructions and advice about how he might go about this. He was concerned he may not have explained these thoughts properly to other psychiatrist who had assessed him. He also stated that the day prior to killing Bianca he had tried to strangle her in a movie theatre but could not go through with it. He exhibited remorse and reported flashbacks to the incident leading to his girlfriend's death which caused him considerable distress. He also stated that he believed that he should be punished for what he did it and did not mind if he was returned to jail.”[42]
[42]Report of Dr Angela Voita, dated 29 November 2012, at pp 2-3.
Dr Voita considered that Mr Austin was at that point in time fit for trial according to the R v Presser[43] criteria but that his fitness was marginal given his current negative cognitions and beliefs that he should be punished.
[43][1958] ALR 248.
Report dated 9 January 2013
In a further report dated 9 January 2013, Dr Voita confirmed that Mr Austin was fit for trial. She also noted that an issue had arisen as to whether Mr Austin’s more recent account of the offence brought into question the impact of auditory hallucinations which the reporting psychiatrists had relied on in coming to their opinions.
Dr Voita stated:
“In my opinion Mr Austin's more recent statements have occurred in the context of a deterioration in his mental state, development of a depressive illness, poor insight into his psychotic illness and the difficulties he has in expressing and explaining his psychotic symptoms and experiences when he is unwell. I am of the opinion that there is no Section 269 dispute.”[44]
[44]Update Report of Dr Angela Voita, dated 9 January 2013, at p 1.
Dr Voita stated that since writing the report of 29 November 2012, Mr Austin’s mental state had deteriorated further and that he had consented to a trial of Clozapine on 29 November 2012. Dr Voita noted that from 8 December 2012, the auditory hallucinations Mr Austin experienced instructed him to harm others, smash furniture and yell out. She noted he became increasingly unwell and was placed on 15 minute observations on 10 December 2012. On that date, he was instructed by voices to throw a chair and acted on those voices. On 11 December 2012, he pushed over a table in the dining area and yelled, secondary to command hallucinations, and on 12 December 2012, he smashed a table in the dining area of the Franklin Unit, again in response to auditory hallucinations. She stated that he was reporting that he was having ongoing auditory hallucinations telling him to smash furniture. He was subsequently secluded on that date. He indicated to staff that the voices were telling him to hurt staff.
Dr Voita continued:
“On 13 December 2012, Mr Austin reported to Dr Geertsema during an open door interview that he was experiencing thoughts to harm others which were inserted into his head by a computer. The interview was terminated early as he stated that he was having thoughts of pushing and hurting Dr Geertsema and the three other nurses present. Later in the day he reported that he was hearing voices and had the urge to kick the door. He stated that he was trying to control these urges but later kicked the door. He was given PRN medication at his request at 18.50 hours and reached through the seclusion hatch and tapped a nurse on the side of her right face. He backed away and was later apologetic.”[45]
[45]Ibid, at p 2.
Dr Voita reported that Mr Austin had further urges to hit staff the following day and he indicated he was having trouble resisting them. Dr Voita indicated that when she reviewed him on 14 December 2012:
“Mr Austin reported that he had voices from the satellite and thoughts to hit and push people and to kick his mattress. He stated that he did not know how to explain this better and at times they seem like thoughts and at times like voices.”[46]
[46]Ibid, at p 3.
Dr Voita stated that the behaviour continued on 15, 16 and 17 December 2012 and that when she reviewed him on 17 December, Mr Austin admitted that he had charged at nurses and that he had heard a voice telling him to scare staff. He also stated he had heard voices telling him to punch people. Dr Voita stated:
“Notably during the interview he stated that he did not believe that the urges related to his illness but when asked to explain he could not and became very thought disordered and stated that he could not make sense of it all and that he communicated with the computer and could not tell if it was his thought or the computer putting thoughts into his head that made him do these things.”[47]
[47]Ibid, at p 3.
Dr Voita stated that due to Mr Austin’s mental state and his level of distress, he was commenced on a course of ECT on 21 December 2012. Following that treatment, his mental state improved markedly. He was ultimately released from seclusion on 23 December 2012. Dr Voita indicated that in early January 2013, Mr Austin had developed further insight into his illness in the absence of formal thought disorder, an improved mood and the absence of psychotic symptoms. She considered that in the absence of psychotic symptoms, he was better able to explain his past psychotic thinking. Dr Voita stated that when she reviewed Mr Austin on 8 January 2013, he had not heard voices for a number of weeks and had had no communications with the computer/satellite for over a week. Dr Voita reported that:
“He stated that he was coming to terms with the fact that his experiences in recent years were due to having a mental illness. He stated that the last time he had been free of psychotic symptoms was in 2006 prior to first developing a mental illness. He reported no urges to hurt others and believed now that these experiences relate to him being unwell and are not his thoughts because he now no longer has these thoughts. He reported that at the time of the killing of Bianca he was hearing voices and having communications with the computer and now realises that it was not his own thoughts or wishes to kill her. He stated that he was also depressed at the time and realises this now because he felt very different now to how he felt in terms of his mood at the time.”[48]
[48]Ibid, at p 4.
Dr Voita stated that in terms of the future management of Mr Austin, her view remains unchanged from the report dated 29 November 2012. Although he has now agreed to a trial of Clozapine, his Clozapine levels are still therapeutic and there would need to be a more extended period of stability in his mental state for any Limited Community Treatment to occur.
Dr Voita’s Update Report dated 31 January 2013
Dr Voita provided a further report for the adjourned hearing in March 2013 and reported as follows:
“Since my last report dated 9th of January 2013, Mr Austin's mood has remained stable and he reports his mood as 7-8/10. His sleep is good and he denies suicidal ideation. He is notably more settled in his mental stated (sic) and engaged in rehabilitation activities both on and off the ward. His affect is warmer and he is less isolative. He denies the presence of homicidal ideation, command hallucinations to harm others or damage furniture, communications with the satellite or thought insertion. He still reports that his concentration is still poor at times. He has been forthcoming about his symptoms on interviews.
Nevertheless in the last two weeks Mr Austin has reported some delusions or reference from the television and communications from Bianca which are psychotic in nature and quality. When he has attempted to explain these experiences he exhibits thought disorder and has difficulty articulating his experiences. In my opinion these experiences represent a re-emergence of low grade psychotic symptoms. I note though that Mr Austin is now more forthcoming and engaged with the treating team but still exhibits only partial insight into these new experiences being symptoms of his mental illness.
…
It is my opinion that according to the R-v-Presser criteria, Mr Austin remains fit for trial. He was last assessed by me in relation to his fitness for trial on the 25th of January 2013.”[49]
[49]Update Report of Dr Angela Voita, dated 31 January 2013, at pp 1-2.
Dr Dark’s subsequent opinion
Dr Dark was asked to give her opinion on Mr Austin’s subsequent revelations that he had killed Ms Girven. Dr Dark stated that, on the balance of probabilities, she accepted his confession as a true account of the killing. In her view, Mr Austin had not initially shared the extent of his psychotic phenomena with his treating team and that his actions were determined by his psychosis. She noted the following in her update report received on 30 August 2012:
“He had spoken throughout his treatment of command hallucinations which at times were beyond his control, and of his illness in terms of personality rather than recognising it as an illness. He believed people could read his thoughts and this may have influenced what he verbalised to staff. It is also to be noted that he has had brief intense exacerbations of psychosis under periods of stress even in the absence of substance abuse. When assessed by me on 1/4/12 he was concerned that we could also possibly be at risk if he spoke with us. Taking all of the above into consideration, on the balance of probabilities it is now my opinion that Mr Austin was of unsound mind at the time of the offence that he was deprived of the capacity to know what he was doing was wrong and deprived of the capacity to control his actions.”[50]
[50]Undated update report of Dr Dark, received 30 August 2013, at p 3.
In a letter dated 9 January 2013, Dr Dark reviewed further new information and indicated that she concurred with the opinion of Dr Voita, as outlined in her report also dated 9 January 2013, namely that:
“Mr Austin was ‘hearing voices and having communication with the computer’ that deprived him of the capacity to control his actions, resulting in Bianca’s death.
Mr Austin has a consistent history of not fully accepting his illness with very poor insight and judgement. He has in the past referred to his psychotic experiences as his ‘personality’ rather than accept these experiences as psychotically driven and symptoms of an illness.
It is clear he cared for Bianca and had no wish to kill her. His psychotic reasoning may have led him to externalise what had happened resulting in the report of being attacked. In my opinion this is not inconsistent with being deprived of the capacity to control his actions due to severe mental illness.”[51]
[51]Letter from Dr Dark to Mental Health Court Acting Registrar, dated 9 January 2013.
The evidence of Dr Grant
Dr Grant gave evidence at the hearing and provided a report dated 13 November 2011. He also provided further update reports dated 21 August 2012 and 12 January 2013.
Report dated 13 November 2011
Dr Grant considered that at the time of all of the offences, Mr Austin was suffering from a mental illness, namely paranoid schizophrenia. Dr Grant considered that at the time of the offences Mr Austin was suffering from very significant psychotic symptoms. He described psychotic symptoms which had commenced in 2005 and those symptoms included a belief that he had to carry out a killing, for apparently psychotic reasons, and that he felt obliged to carry out such an act and was urged to do so by both auditory hallucinations and other symptoms, such as thought insertion and telepathic communications. Dr Grant considered that the symptoms appeared to be severe at the time of the murder of Ms Girven but Mr Austin was keeping them secret. Mr Austin indicated to Dr Grant that he started to feel that he was having a lot of telepathic conversations with Bianca during the afternoon and evening of the murder.
Dr Grant noted that the paranoid schizophrenic illness had been present since at least 2005 and that its onset was in the context of poly substance abuse, particularly cannabis on a chronic basis. He considered that the poly substance abuse may have contributed to the ongoing symptomatology and severity of his illness. He stated that the illness has required multiple admissions to hospital with questionable responses to treatment. He considered that Mr Austin’s insight remains poor.
Dr Grant stated that at the time of the murder of his girlfriend, Mr Austin was mostly non compliant with his antipsychotic medication. Dr Grant indicated that during the interview, Mr Austin described multiple psychotic symptoms with poor insight, despite months of anti psychotic treatment. Dr Grant considered Mr Austin’s illness to be treatment resistant, although the medication had had some attenuating effect on the most obvious of his symptoms.
Dr Grant considered that Mr Austin has exhibited some past antisocial behaviour, particularly in relation to his drug use and secondary to early psychotic symptoms. He considered there is insufficient evidence to make a diagnosis of antisocial personality disorder. He considered that those behavioural symptoms are most likely secondary to the early effects of his schizophrenia and secondary effects of substance abuse. Dr Grant considered that at the time of the offences Mr Austin was deprived of the capacity to know that he ought not do the acts and that deprivation was the result of his florid psychotic symptomatology and it is likely that at the time of the offences, he was deprived of the capacity for control in a true sense because of the strong influence of the psychotic symptoms over his behaviour. He does not consider he was deprived of the capacity to know the nature of his actions.
In terms of the false story that he concocted after the murder, Dr Grant does not consider that it detracts from the deprivation of capacities. He considers that the concocted alibi was given in order to explain his actions, but at the same time, Mr Austin believed his actions were justified and necessary as a result of his psychotic symptomatology. Dr Grant stated that such double bookkeeping is not uncommon in psychotic crimes where there is some awareness of the illegality of the actions but an absence of moral capacity.
Dr Grant also considered that Mr Austin’s eventual revelation of his true actions could have been prompted by his improved treatment to the extent that he was able to reveal his psychotic beliefs in relation to the offence. Dr Grant also considered that Mr Austin was suffering from an abnormality of the mind and that, if he was not found to be totally deprived of the capacity, he had substantial impairment of the capacity to know that he ought not do the act and capacity for the control of his actions and that this would qualify him for a defence of diminished responsibility.
Dr Grant does not consider that Mr Austin was intoxicated with any illegal substance at the time of the offences, because there is no objective evidence to indicate that he was intoxicated. He notes that he may have had one bottle of beer earlier in the day and consumed some cough mixture. However, Dr Grant does not consider that either of those intakes would have caused intoxication relevant to his mental status.
Further Reports of Dr Grant dated 21 August 2012 and 12 January 2013
On 21 August 2012, Dr Grant provided a further report after he was asked to consider further material from The Park Centre for Mental Health in relation to case notes of Mr Austin’s behaviour whilst being treated. Dr Grant considered that the material did not change his opinions that he had previously expressed and, in fact, confirmed the observations and the opinions he had previously given. He stated that throughout the case notes there is evidence of ongoing mental illness with continued auditory hallucinations and at times withdrawal and preoccupation with inner experiences.
Dr Grant considered that the most relevant material is dated 15 June 2012 and involves entries by psychologist, T Smith, psychiatrist Dr Angela Voita, and an entry by psychiatrist Dr Ross Scott. He stated that those interviews detail the exact symptoms which he obtained from Mr Austin when he interviewed him for the report. He considered that the material supports the conclusion he had previously reached that Mr Austin was of unsound mind at the time of the killing of Ms Girven and also illustrates ongoing symptomotogy which renders Mr Austin a high risk of future violent behaviour. He considered that the material indicates Mr Austin has experienced strong homicidal impulses, driven by psychotic experiences, and that those experiences were active at the time of his offence and are ongoing.
In a further report dated 12 January 2013, Dr Grant indicated that he had reviewed a further report by Dr Angela Voita, as well as a transcript of the proceedings of the Mental Health Court and the medical records of The Park between July and November 2012. Dr Grant stated that having read the material, he remained of the opinion previously expressed that Mr Austin was of unsound mind at the time. Dr Grant considered that when he saw him he obtained a history which indicated Mr Austin;
“had for years been suffering from complex psychotic symptomatology including a range of delusions, passivity phenomena, thought insertion, probable thought broadcasting, and auditory hallucinations, some of which were command hallucinations. It is notable that at times he had denied to other observers that he was experiencing these symptoms but in my opinion the history which he gave me after some hours of interviewing clearly indicated the presence of these ongoing psychotic phenomena. The notes from The Park Hospital indicate that those symptoms have continued and indeed have become worse, with the presence of obvious thought disorder and behaviour that was the result of acting on psychotic phenomena.
Mr Austin's insight into his psychotic symptoms has been poor and I agree with Dr Voita that he has had great difficulty understanding the phenomena he was experiencing and did not see them, (sic) even Mr Austin's insight into his psychotic symptoms has been poor and I agree with Dr Voita that he has had great difficulty understanding the phenomena he was experiencing and did not see them, even when I interviewed him, as the result of suffering from schizophrenia. I believe that he has had ongoing difficulty describing these phenomena, especially when he is more unwell. His illness has fluctuated to some extent but in my opinion has been present for many years and has never gone into remission. In my opinion he has had ongoing difficulty in distinguishing between what is psychosis and what is, in his opinion, part of his usual thinking patterns.
In my opinion there is no significant dispute of the facts which might be relevant to s269 of the Mental Health Act.”[52]
[52]Report of Dr Grant, dated 12 January 2013, at pp 1-2.
Dr Grant also stated that when Mr Austin becomes significantly depressed, he expresses the view that he needs to go to prison and be punished for his crimes. He considered that that argues against a view that Mr Austin has a motivation to use malingering to avoid imprisonment and achieve a mental health defence.
Dr Grant concluded his report by advising:
“I would caution against taking a simplistic view of his motivations for the offence and would stress that in my opinion the offence arose from a very complex psychotic mental state of which auditory hallucinations of a command type were only one aspect.”[53]
[53]Ibid, at p 2.
Dr Pamela van de Hoef’s evidence
Dr van de Hoef gave evidence at the hearing on 25 July 2012.
Report 21 October 2011
In a report dated 21 October 2011, Dr Pamela van de Hoef said that Mr Austin gave her a similar account of the murder charge and in particular, he indicated that quite a while before the killing, he somehow got it into his head that he had to kill someone to prove he could do it. He said it was a developing idea that somehow got manifested in his thoughts and that he put himself into a position and was given an opportunity to do it a number of times. He said the idea started with voices and them thinking about him and that he could not tell the voices to stop because he agreed with them. He said he used to believe the voices were a person and then a computer and that he was still in that phase now.
Dr van de Hoef indicated that Mr Austin said that when he failed to kill, he felt pretty bad and was filled with regret that he had not succeeded. He gave her a number of examples of the opportunities he had had over the years to kill somebody. He talked about an occasion in early 2006 when he had gone for a walk in the middle of the night into the bush at the back of his parents’ home. He had found a stick that looked like a weapon and by the time he got to the top of Mount Gravatt, he thought of using the weapon to kill someone. There were a few cars parked at the top and he thought he would kill someone there, but soon realised it was a difficult thing to do. He then asked the occupant of one of the cars for a smoke and walked away, thinking he would do it next time. The thought festered in his mind.
I am therefore satisfied that Mr Austin was of unsound mind at the time he did the acts on 30 March 2010 which resulted in Ms Girven’s death on 31 March 2010.
Is a Forensic Order required?
Dr Voita considered that if Mr Austin was found to be of unsound mind or unfit for trial by the Mental Health Court, he should be placed on a Forensic Order given the severity of his illness, his ongoing treatment needs and the significant risk issues when he is unwell.
Dr Voita stated that if Mr Austin is placed on a Forensic Order by the Mental Health Court, she did not recommend any Limited Community Treatment at this time. At the time of her report, he had experienced a relapse of his psychotic illness, schizophrenia, and developed a major depressive disorder which she considered significantly increased his risk of violence and self harm. The relapse of his illness appears to have occurred in the context of a number of stressors including ongoing postponement of Mental Health Court proceedings.
Dr Voita considered that in view of his severe symptoms which include command hallucinations from God to kill, his substantial lack of insight, his marked propensity to conceal symptoms and the extreme seriousness of the index offence and assault charges, Mr Austin should continue to receive treatment in High Secure, The Park, Wacol, being subject to a Forensic Order (SNFP).
Dr McVie advises that a Forensic Order is indicated in this case. She considers that Mr Austin needs continuing inpatient management at the High Secure Service. Her advice is that in view of the fluctuating nature of his mental state over the past 12 months, it is likely that he will need a very lengthy admission. She would be very concerned about him having Limited Community Treatment in the future in the absence of very close medical follow-up.
Dr Varghese indicated that if Mr Austin was found to be of unsound mind, then his advice mirrors that of Dr McVie that a Forensic Order is indicated. He further advised that given his current mental state, there is no indication for Limited Community Treatment and that his management under a Forensic Order needs to be carried out with great care given the issue of dangerousness.
Dr Varghese drew attention again to the combination of schizophrenia with delusional thinking involving violence and fantasies together with the personality factors. He also advised that it may well be the case that Mr Austin still has ongoing delusions with respect to the need to carry out certain actions in order to achieve some delusional goal.
Dr Varghese considered that what is particularly worrying about Mr Austin is that he is able to conceal his delusional system from others, including experienced psychiatrists. I accept his advice that deciding when Mr Austin may be eligible for Limited Community Treatment will be a “very formidable task that needs to be carried out with care” and “maximum scepticism”.
Section 288 of the Act provides that if the Court decides that a person charged with an indictable offence was of unsound mind at the time of the alleged offence then the Court may make an order (Forensic Order) for that person to be detained for involuntary treatment or care. Section 288(4) then sets out the criteria for making a Forensic Order and requires the Court to have regard to the following;
(a) the seriousness of the offence
(b) the person’s treatment or care needs
(c) the protection of the community
The offence of murder is the most serious offence in the Criminal Code and the circumstances surrounding Mr Girven’s death are extremely worrying and concerning. A young, vibrant 22 year old woman just beginning her life has been killed in a brutal and traumatic way. The material which has been submitted by he family pursuant to s 284 of the Act sets out the enormous consequences Mr Austin’s action have had and will continue to have on Ms Girven’s family. There is no doubt that therefore that the first criterion has been satisfied.
There is no doubt that Mr Austin has extensive and complex treatment needs. As all of the psychiatrists point out Mr Austin has a severe, treatment resistant schizophrenic illness. It is particularly significant that those symptoms never completely disappear and that Mr Austin can actively conceal those symptoms. Those symptoms include homicidal ideation. I also note the advice of the assisting psychiatrist that Austin’s urge to kill is egosyntonic, which means that is it is not something that bothered him. Dr Varghese noted that Mr Austin is not troubled by his urges nor does he complain or seek amelioration of his symptoms. I also note in particular Dr Varghese advice that this lack of concern by Mr Austin may be indicative of a degree of psychopathy but that such concealment may also because he “is clever enough to know the consequences of revealing such disturbing psychotic phenomena”.
There is no doubt given those factors that society needs to be protected from Mr Austin.
I also note the concern all psychiatrists have expressed in relation to Mr Austin’s future dangerousness given those factors. I note in particular Dr McVie advice that Mr Austin requires a lengthy inpatient admission and that Dr Varghese counsels maximum scepticism in relation to any declared future improvement in his mental health.
A Forensic Order is clearly required.
Given the seriousness of the offences, the unpredictability of Mr Austin’s treatment response, his residual symptoms, his ability to successfully conceal symptoms as well as history of relapses as I do not consider that there should be any Limited Community Treatment at this point in time.
Accordingly Limited Community Treatment is not approved.
I would recommend that at all future reviews of the Forensic Order by the MHRT consideration should be given to these reasons and the serious concerns raised by all the psychiatrists.
Orders
I consider that orders should be in the following terms:
1. The defendant was of unsound mind at the time of the commission of the alleged offence of common assault on 21 January 2007.
2. The proceeding against the defendant in relation to the alleged offence of common assault on 21 January 2007 is discontinued and further proceedings must not be taken against the defendant for the acts constituting that offence.
3. There is a reasonable doubt, pursuant to s 268 of the Mental Health Act 2000 (Qld), that the defendant committed the alleged offence of possession of tainted property on 2 April 2010.
4. The defendant is fit for trial in relation to the alleged offence of possession of tainted property on 2 April 2010.
5. The proceeding against the defendant in relation to the count of possession of tainted property on 2 April 2010 is to continue according to law.
6. There is no fact that is substantially material to the opinion of an expert witness as defined in s 269(1) of the Mental Health Act 2000 (Qld) that is so in dispute it would be unsafe to make a decision on unsoundness of mind or diminished responsibility in relation to the count of murder on 30 March 2010.
7. The defendant was of unsound mind at the time of the commission of the alleged offence of murder on 30 March 2010.
8. The proceeding against the defendant in relation to the alleged offence of murder on 30 March 2010 is discontinued and further proceedings must not be taken against the defendant for the acts constituting that offence.
9. A Forensic Order is required detaining the defendant to The Park High Security Program Authorised Mental Health Service.
10. Limited Community Treatment is not approved.
11. The psychiatric and psychological reports presented during the hearing and the transcript of the hearing be released to the parties and the Attorney-General for use in the Metal Health Review Tribunal proceedings.
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