Re BML

[2014] QMHC 10

MENTAL HEALTH COURT

CITATION:

Re BML [2014] QMHC 10

PARTIES:

REFERENCE BY LEGAL AID QUEENSLAND IN RESPECT OF BML

FILE NO/S:

64 of 2014

DELIVERED ON:

7 November 2014

DELIVERED AT:

Brisbane

HEARING DATE:

1 October 2014

JUDGE:

Boddice J

ASSISTING PSYCHIATRISTS:

Dr E McVie

Dr J Redden

ORDER:

There is a dispute of fact within the meaning of section 268 of the Act.1.   

The Defendant is fit for trial.2.   

The hearing of the alleged offence is to proceed according to law.3.   

Copies of the reports, and of the transcript, are to be provided to the Parties in the criminal proceeding.4.   

CATCHWORDS:

MENTAL HEALTH – DECLARATION OR FINDING OF MENTAL ILLNESS OR INCAPACITY – where the Defendant is charged with one offence of child stealing – where the Defendant has an intellectual disability – where the Defendant submits there is no dispute of fact and that she was of unsound mind at the time of the alleged offence – where the Director of Public Prosecutions submits it is not open to the Court to make a finding as to unsoundness of mind as the Defendant’s version of events gives rise to a dispute of fact – whether there is a dispute of fact – whether the Defendant was of unsound mind at the time of the alleged offence – whether the Defendant is fit for trial

Criminal Code 1899 (Qld) s 27, s 31

Mental Health Act 2000 (Qld) s 268

R v Falconer (1990) 171 CLR 30, distinguished

Stapleton v R (1952) 86 CLR 358, cited

COUNSEL:

J Briggs for the Defendant
J Tate for the Director of Mental Health
S Dullaway for the Director of Forensic Disability Services

T Fuller QC for the Director of Public Prosecutions (Qld)

SOLICITORS:

Legal Aid Queensland for the Defendant
Crown Law for the Director of Mental Health
Crown Law for the Director of Forensic Disability Services

Director of Public Prosecutions (Qld)

1. BODDICE J: By reference filed 20 February 2014, Legal Aid Queensland referred to this Court the mental condition of BML at the time of an alleged offence of child stealing on 12 May 2011. At issue is unsoundness of mind and fitness for trial. A further issue is whether there is a dispute of fact, within the meaning of section 268 of the Mental Health Act 2000 (“the Act”) such as to give rise to a reasonable doubt as to whether the Defendant committed the alleged offence.

Background

1. The Defendant was born on 16 August 1992.  She is now aged 22 years.  At the time of the alleged offence she was 18 years of age.  The Defendant is in receipt of a disability support pension.  She has received this pension since age 16, apparently as a consequence of intellectual disability.  The Defendant has one child, who was placed into care soon after birth.

1. The alleged offence on 12 May 2011 involved the Defendant removing her half sister, a two year old child, from a day care centre.  That child has the same mother as the Defendant.  Until shortly prior to the alleged offence, the Defendant had been living with her mother. 

Alleged offence

1. According to the police brief, the parents of the child delivered her to a day care centre on the morning of 12 May 2011.  Later that morning, the Defendant attended the centre and requested she collect her sister.  She produced identification, and after some inquiries, was allowed to take the child.  The Defendant allegedly gave as an explanation for her request that the child had a doctor’s appointment.

1. Later that day police were called when the child’s parents returned to collect their daughter and were informed she had been collected by the Defendant.  Police inquiries ascertained the Defendant did not have authority to collect the child.  The Defendant was subsequently located by police at a residence in Beenleigh.  The child was in her custody. 

1. It is alleged the Defendant initially told police she was the mother of the child.  Police formed the view the Defendant at the time had “impaired capacity”, and contacted the Defendant’s grandparents.  They attended the police station with the Defendant.  At that time, the Defendant was questioned by police.  She is alleged to have denied ever attending the day care centre.  She said she had never picked up the child from the centre.  She denied the police had found the child at her residence.  The Defendant then declined to continue the interview.

Reporting psychiatrists

1. Dr Schramm interviewed the Defendant on 4 March 2013.  At that time the Defendant was 20 years of age and her finances were being managed by the Public Trustee.  She was living with her grandparents, having separated from her partner.  Dr Schramm noted formal IQ testing performed by Dr Hatzipetrou had revealed the Defendant had a full scale IQ of 66, with significant deficits in learning, language development, information processing and psycho-motor speed.

1. The Defendant gave Dr Schramm the following account of events surrounding the alleged offence.  She had met her partner a few months before the alleged offence.  He also apparently had some intellectual impairment.  She described him as being prone to losing his temper and said she was frightened of him.  Prior to the alleged offence, the partner threatened to hurt the Defendant if she did not bring her half sister to him.  He uttered such threats “three times”.  They included he would “bash” and “kill” the Defendant, and maybe kill her unborn baby. 

1. The Defendant said she did not tell anyone about the threats at the time because she did not consider they would believe her.  The Defendant did not want to take her half sister but was scared and trying to protect her pregnancy.  On the night before the alleged offence, the partner threatened the Defendant “real bad”.  He had also done so on the morning of the alleged offence.  On that day, the Defendant travelled to her mother’s house but found she was not home.  She then travelled to the day care centre. 

1. The Defendant told Dr Schramm she knew it was wrong to take her half sister but said she was scared her partner might find out if she did not take her half sister.  She acknowledged she lied to staff at the day care centre.  The Defendant said when she returned home she was scared for her half sister.

1. In Dr Schramm’s opinion, the Defendant’s significant intellectual impairment would classify her as “mildly mentally retarded”.  Her reported deficiencies are significant, with a marked impact on her ability to function independently and to consider matters as an adult.  Her problem solving ability, moral awareness and emotional maturity were more akin to that of a five year old than an adult.

1. Whilst Dr Schramm was satisfied the Defendant’s intellectual impairment constituted a natural mental infirmity, he could not confidently opine this condition deprived the Defendant of any particular capacity.  There was no question about the Defendant’s capacity to know what she was doing, or to control herself in such complex behaviour.  The Defendant was also aware, at some level, it was wrong to take her half sister.  

1. However, Dr Schramm opined the Defendant’s appreciation of why it was wrong to take her half sister was markedly diminished, if not absent.  Her intellectual impairment meant she did not have the capacity to deal with the threats from her partner in ways a non-intellectually impaired and more mature adult would have, such as confronting them or going to the police.  The Defendant “could have acquiesced simply because she could not fathom what else to do”.

1. Dr Schramm opined the Defendant was fit for trial.  While she was significantly intellectually impaired, and was at risk of becoming confused in a courtroom situation, appropriate allowances, if made, would ensure she could participate and answer the alleged offence adequately.

1. Dr Beech interviewed the Defendant on 20 November 2013.  The Defendant gave a similar account of events surrounding the alleged offence.  She said her partner, who the Defendant described as a nice man at first but who had soon become possessive and violent and very controlling, had demanded he see her half sister.  He threatened he would kill the Defendant’s unborn baby if she did not bring her half sister to him.  The Defendant was scared and unsure what to do.  She feared actual harm.  The Defendant did not tell anyone as she did not think people would believe her.  She did not think to go to the police.

1. The Defendant said she went to her mother’s place but found she was not home.  Her partner continued to demand she bring her half sister to him.  She subsequently went to the day care centre and collected her half sister.  The Defendant could not recall what she told the staff.  The Defendant returned with the child back to her partner’s residence.  He said he wanted to keep her but the Defendant said he could not have her.  After some time, police arrived at the residence.

1. The Defendant said that after the incident she remained with her partner for some time.  Around Christmas, she moved in with her grandparents as her partner was becoming more violent.  She has remained with her grandparents ever since.  The Defendant told Dr Beech she was concerned about the court proceedings and wanted the matter resolved as it made her anxious.  She feared she would go to gaol.

1. Dr Beech noted Dr Hatzipetrou’s findings as to the Defendant’s IQ of 66.  Whilst there were relative strengths in some areas, even these were within the borderline range of intellect.  Her full scale intelligence was in the range of extremely low.  There were deficits in short-term memory, attention and concentration.  The Defendant also appeared to be more suggestible than the general population as a result of her intellectual impairment. 

1. Dr Beech further noted Dr Hatzipetrou considered the Defendant had an intellectual disability and that this, with her social skill impairments and disruptive upbringing, meant she was unlikely to appreciate the seriousness of her actions.  He also thought her ability to understand the consequences of her actions, and to oppose her partner’s demands and resolve those issues, was significantly impaired.

1. Dr Beech opined the Defendant suffers from intellectual impairment of a mild nature.  This intellectual impairment did not, however, deprive the Defendant of her capacity to know the nature of her act and her ability to control her actions.  If her version of events is accepted in respect of the threats from her partner, her intellectual impairment would have made her highly vulnerable to this coercion.  Under those circumstances, Dr Beech opined the Defendant would have been deprived of the capacity to know she should not act as demanded by her partner.

1. In respect of fitness for trial, Dr Beech opined the Defendant understood the nature of the charge, and was able to plead to it.  She also had an understanding of its seriousness, and of the court processes.  She understood the evidence that could be used against her.  The Defendant was, however, suggestible which would make her vulnerable to cross-examination.  She is likely to display gratuitous concurrence.  Whilst these difficulties would necessitate significant support during any trial, with appropriate arrangements the Defendant could be fit for trial.  Without those arrangements, the Defendant would be permanently unfit for trial.

Submissions

1. The Defendant submits the circumstances are such that either section 27 or section 31 of the Criminal Code 1899 applies but that both cannot apply. Whilst the Defendant’s account raises compulsion, section 31 of the CriminalCode does not arise for consideration because the Defendant’s intellectual impairment was of such a nature that the Defendant could not satisfy the requirement of “reasonably” in sections 31(1)(d)(ii) and (iii). Accordingly, there is no dispute of fact within the meaning of section 268 of the Act.

1. The Defendant further submits whether the Defendant was able to appreciate the wrongness of the particular act required a consideration of whether the Defendant, because of her natural mental impairment, was deprived of the capacity to know the act was wrong, in the sense she could not think rationally of the reasons which to ordinary people make that act right or wrong.  Dr Schramm’s opinion, that the Defendant’s intellectual impairment was of such a nature that her problem solving ability, moral awareness, emotional maturity, and appreciation of why it was wrong, were more akin to that of a five year old, supported a finding of unsoundness of mind. 

1. In support of her submissions, the Defendant relied upon the decision of the High Court in R v Falconer (1990) 171 CLR 30, which considered the interaction between the West Australian equivalents of sections 23 and 27 of the Queensland Criminal Code.  It was held the practical difference in the operation of those two sections depended on the aetiology of the condition which deprived the accused of the capacity to control actions.  Involuntariness derives from the operation of external events upon a sound mind, whereas unsoundness relates to a deprivation by reason of mental illness or natural mental infirmity. 

1. The Director of Public Prosecutions submits it is not open to this Court to make any finding in respect of unsoundness of mind as the Defendant’s version of events gives rise to a dispute of fact within the meaning of section 268 of the Act as there is a reasonable doubt as to whether the Defendant committed the offence. That reasonable doubt arises because the Defendant’s version of events raises the defence of compulsion under s 31 of the Criminal Code. 

1. The Director submits that defence is not dependent upon an ability to reason, as considered in Stapleton v R (1952) 86 CLR 358. Section 31 focuses upon the circumstances in which a person did, or omits to do, the act the subject of the offence. Relevantly, if the Defendant took the child in order to save herself from serious harm or detriment, threatened by another in a position to carry out that threat, and whilst reasonably believing she is unable otherwise to escape the carrying out of the threat and the act is reasonably proportionate to the harm or detriment threatened, she is not criminally responsible.

1. The Director submits the Defendant’s version of events clearly raises she was under threat of physical harm by her partner at the time she committed the alleged offence, and that she believed she was unable otherwise to escape that threat but for carrying out that act. The defence of justification is therefore raised on the evidence. That defence raises a reasonable doubt as to whether the Defendant committed the alleged offence. That constitutes a dispute of fact within the meaning of section 268 of the Act.

1. The Director of Mental Health did not make any positive submissions, other than to observe the scheme of the Act is such that a mentally ill person is not deprived of the ability to rely on other potential defences. The Director of Forensic Disability adopted a similar position, observing it would be “unfortunate for an individual to lose the ability to have the right to utilise section 31”.

Discussion

1. This Court, pursuant to the Act, must decide whether the Defendant was of unsound mind at the time of the alleged offence. However, the Court is expressly precluded from making such a decision if the Court is satisfied there is reasonable doubt the Defendant committed the alleged offence (unless the doubt exists only as a consequence of the Defendant’s mental condition).

1. The structure of the Act evinces an intention that a Defendant to a criminal proceeding, although suffering from a mental illness, not be denied the opportunity to defend those proceedings if there is a reasonable doubt the Defendant committed the alleged offence. Such an approach is entirely consistent with the objects of the Act, and the applicable principles underlying those objects.

1. A dispute of fact arises within the meaning of section 268 of the Act if this Court, having examined the material before it, forms the view there is a reasonable doubt the Defendant committed the alleged offence the subject of the reference.[1]

   [1]Re RWC [2002] QMHC 13 at [16]-[17].

1. The Defendant has consistently provided a version of events to the effect she committed the offence in circumstances where she was under threat of violence from a partner who was prone to violence, and where the Defendant believed she could not prevent suffering that violence unless she took her half sister to that partner. That version of events raises the defence of compulsion pursuant to section 31 of the Criminal Code. Section 31 of the Criminal Code provides:

“31     Justification and excuse – compulsion

(1)A person is not criminally responsible for an act or omission, if the person does or omits to do the act under any of the following circumstances, that is to say –

(a)in execution of the law;

(b)in obedience to the order of a competent authority which he or she is bound by law to obey, unless the order is manifestly unlawful;

(c)when the act is reasonably necessary in order to resist actual and unlawful violence threatened to the person, or to another person in the person’s present;

(d)when –

(i)     the person does or omits to do the act in order to save himself or herself or another person, or his or her property or the property of another person, from serious harm and detriment threatened to be inflicted by some person in a position to carry out the threat; and

(ii)     the person doing the act or making the omission reasonably believes he or she or the other person is unable otherwise to escape the carrying out of the threat; and

(iii)     doing the act or making the omission is reasonably proportionate to the harm or detriment threatened.”

1. The defence of compulsion operates to relieve a person of criminal responsibility if the prosecution cannot prove the Defendant did not believe he or she is unable otherwise to escape the carrying out of the threat, or that such a belief was not a reasonable one.  Those elements deal with the Defendant’s subjective state of mind, and the objective reasonableness of any such belief.[2] 

   [2]R v Smith (2005) 2 Qd R 69 at 77.

1. Whilst the Defendant contends a Defendant cannot reasonably believe an act is necessary if the Defendant is deprived of the capacity to reason, section 31 does not require a Defendant to be able to reason, as that term is used in Stapleton.  A consideration of the Defendant’s subjective state of mind does not require a particular level of reasoning.  The element of reasonable proportionality also does not introduce an element of reasoning, as enunciated by Stapleton. 

1. The Defendant’s version of events raises the defence of compulsion.  She claims to have committed the alleged offence while subject to a genuine and real threat, and believing she was unable otherwise to escape the carrying out of that threat.  Whilst there may have been other avenues open to her in responding to that threat, the existence of those other avenues does not affect the existence of her belief.  Her natural mental infirmity will be relevant for any jury when considering whether that belief was reasonably held in all of the circumstances.  It will also be relevant when considering whether the act was reasonably proportionate to the threat.

1. The decision of Falconer is distinguishable.  In Falconer, the two defences in issue each had, as an element, a deprivation of control.  It was therefore necessary to consider the aetiology of that deprivation of control, in order to determine which defence may be operative.  There is no such similarity in the elements of the defences of compulsion and unsoundness of mind.

Conclusions

1. There is a dispute of fact within the meaning of section 268 of the Act. There is a reasonable doubt the Defendant committed the alleged offence.

1. I accept the opinions of Dr Schramm and Dr Beech the Defendant is fit for trial.  Appropriate measures can be put in place to overcome the difficulties the Defendant’s natural mental infirmity would otherwise present. The hearing of the alleged offence should continue according to law. 

1. Any trial will, however, have to be conducted having regard to the issues raised by Dr Schramm and Dr Beech.  Appropriate arrangements will need to be made to meet the Defendant’s difficulties, and to provide the necessary significant support during any trial.

Orders

1. There is a dispute of fact within the meaning of section 268 of the Act.

2.          The Defendant is fit for trial.

3.          The hearing of the alleged offence is to proceed according to law.

4.          Copies of the reports, and of the transcript, are to be provided to the Parties in the criminal proceeding.