Re CER

[2004] QMHC 27

MENTAL HEALTH COURT

CITATION:

Re CER [2004] QMHC 027

PARTIES:

REFERENCE BY THE DEFENDANT’S LEGAL REPRESENTATIVE IN RESPECT OF CER

PROCEEDING NO:

0242 of 2003

DELIVERED ON:

30 September 2004

DELIVERED AT:

HEARING DATE:

Brisbane

22 July 2004

JUDGE:

ASSISTING PSYCHIATRISTS:

Wilson J

Dr J F Wood
Dr D A Grant

FINDINGS:

1)   That the defendant is unfit for trial;

2)   That the unfitness for trial is not of a permanent nature;

That the defendant be detained as a forensic patient in The Park High Security Program Authorised Mental Health Service for involuntary treatment and care.3)   

CATCHWORDS:

MENTAL HEALTH – FINDING OR DECLARATION OF MENTAL ILLNESS OR INCAPACITY – where the defendant has been charged with assault occasioning bodily harm while armed, assault occasioning bodily harm, deprivation of liberty and breach of a domestic violence order – where the defendant has a history of perpetrating domestic violence – where defendant had delusional beliefs about his wife’s activities – where defendant suffers from morbid jealousy syndrome – where there is reasonable doubt the defendant committed the offences – where there are disputes as to facts so substantially material to opinions of experts that it would be unsafe to determine whether defendant was of unsound mind - where the defendant is incapable of giving his counsel rational instructions

Mental Health Act 2000 (Qld), ss 268, 269
R v. M [2002] QCA 464 applied
R  v. Presser [1958] VR 45 applied

COUNSEL:

C Morgan for the defendant
J Tate for the Director of Mental Health
P Feeney 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. WILSON J:  CER has been charged with assault occasioning bodily harm while armed, assault occasioning bodily harm, deprivation of liberty and breach of a domestic violence order on 30 October 2002.  His mental condition in relation to the alleged offences was referred to this Court by his legal representative.

1. At the hearing counsel for the defendant told the Court she had express instructions not to seek a finding of unsoundness of mind or a finding of unfitness for trial, but there was no application to withdraw the reference.

1. The defendant was born on 14 May 1965.  These charges relate to an incident involving the defendant and his wife who was then aged about 26.  They were living in a house on 120 acres of land about 70 kilometres from Bundaberg.  Their four children, who were then aged five, four, three and two, had all been in the care of the Department of Family Services for about 12 months.  Both the defendant and his wife were unemployed.  They had been married about five years and in a relationship for a total of about six years.  There had been domestic violence for some years. 

1. According to the wife, on the morning of 30 October 2002 they both watched television until about 10 a.m.  Then, abruptly, the defendant started yelling at her.  She did not answer back.  He challenged her saying he did not need "a wife for a whore".

1. Then he fetched a 12 inch adjustable spanner and threatened to kill her if she did not talk.  He hit her with the spanner on both knees and the back of the head.  She said she was willing to talk.  He continued to bash her on various parts of her body and ordered her into the shower to wash off the blood.  Then he got into the shower with her and beat her about the head and in the stomach.  Then he drove off.

1. While he was gone she rang 000.  He returned to the house and she told him she had called the police.  He forced her into the car telling her he was going to kill her and hide her body.

1. He drove about two kilometres to the gate of an apparently unoccupied property where he ordered her to come with him to a shed on the property.  The police arrived.  He claimed not to have touched his wife and that she had received her injuries when she had been out having sex with someone else the night before.

1. The defendant has maintained his account that his wife's complaint is a series of outright lies and that he has never physically harmed her in any way.  He says she told him on that day that she had been out with one SP and that she had had a dispute with SP because she wanted to end their adulterous relationship.

1. The defendant has been examined by Dr Peter Fama and Dr William Kingswell.  He claimed to both of them that his wife was promiscuous.  He told Dr Fama that she had been continually unfaithful to him and that she had regularly had sex with multiple male partners.  Indeed, he mentioned the figure of 129 different men.  He produced long written lists, which he maintained had been compiled by his wife herself, of the names of her lovers and the frequency of her sexual intercourse with each:  24, 50 times and the like.  The names included the defendant's brother.  At the same time, he maintained that his wife was an habitual liar.

1. The defendant has been in custody.  There are transcripts available of taped telephone conversations he had with his wife on 25 February 2003.  He told Dr Kingswell that these included his wife's confessions to various adulterous affairs, but they do not.  In one of the taped conversations, the wife said that SP was doing four months in gaol and that she had not met him until after he had gone to gaol.  The defendant made bizarre references to bats and asked his wife what was the story about the bats.  She asked, "Your big thousand foot electric bats?"  What he said seemed to be mixed up with an alleged "set up" by SP.

1. The defendant produced to Dr Fama part of the transcript of proceedings in the Bundaberg Magistrates Court on 18 October 2002, that is 12 days prior to the incident the subject of the present charges.  Those proceedings involved the Department of Family Services and the children.  The wife told the Court that she had been promiscuous and that she and the "other men" had drugged the defendant to facilitate their "carry ons".  She said the other men had physically assaulted her.  She said she had confused the defendant and it was tearing him apart.  She said there had not been any physical violence for a fair time.

1. On previous occasions, the wife has made complaints relating to violence inflicted by the defendant but then withdrawn the charges.  In the present case, she has vacillated, at one time announcing her intention to withdraw the charges and another announcing her intention to proceed.

1. Before he knew his wife, the defendant had had two other serious relationships.  The first one commenced when he was 16 and lasted for eight years.  There were three children of that relationship.  He said it broke up when he "caught her in bed with a mate".

1. The second relationship commenced when he was about 28 and lasted three years.  He said he was working night shift and became increasingly suspicious of tyre tracks and footprints around the house.

1. The examining doctors considered the defendant's accounts of his wife's promiscuity to be based on delusional beliefs.  They considered that he was suffering from a delusional disorder of a jealous type, to use the DSM-IV classification, or a delusional disorder manifest as morbid jealousy syndrome, to use the ICD-10 classification.

1. Dr Fama described morbid jealousy in these terms:

"In morbid jealousy the person develops a powerful and irrational belief that his/her partner is unfaithful.  The diagnosis is based upon the irrationality of thinking that has led to such a conclusion, not upon whether there might have been some actual act of infidelity.

Morbid jealousy engenders intense personal concern, leading to violent confrontation with the supposedly unfaithful partner and sometimes precipitating homicide.  The sufferer often demands a 'confession', and having eventually extracted that by threat or even torture causing despair or rage in the accused, will triumphantly parade the result as proof of the truth of the infidelity."

1. The examining doctors were of the opinion that the defendant was deprived by the mental disease of capacity to know what he was doing.

1. Dr Kingswell considered that the defendant's ideas were illogically derived and said his opinion would not change even if the wife had been promiscuous.  I understood Dr Fama to be of similar view. 

1. Nevertheless, both doctors relied heavily on their own assessment of the absurdity and implausibility of the defendant's claims.

1. Sections 268 and 269 of the Mental Health Act prohibit this Court from making a determination on the question of soundness of mind if it is satisfied there is reasonable doubt, not arising only as a consequence of the defendant's mental condition, that he committed the offences (section 268), or if a fact substantially material to the opinion of an expert is so in dispute that it would be unsafe to make a determination (section 269).

1. The defendant vehemently denies the alleged offences.  The wife's evidence has not been tested by cross-examination.  It is not for this Court to rule upon her mental stability, nor is it for this Court to make decisions based on the credibility of the defendant or his wife.  Those are matters for a jury.

1. As I have said, the wife has vacillated about proceeding with the charges.  That may well be a consequence of her tempestuous relationship with the defendant.

1. On the other hand, she gave sworn testimony about being promiscuous before the Bundaberg Magistrates Court.  That testimony cannot be disregarded in considering whether the factual foundation of the doctors' opinions that the wife had not been promiscuous as alleged by the defendant is so in dispute that it would be unsafe to make a determination on the question of unsoundness of mind.

1. I have concluded both that there is reasonable doubt that the defendant committed the offences and that there are disputes as to facts so substantially material to the opinions of the doctors that it would be unsafe to make a determination. That is, that both section 268 subsection (1) and section 269 are enlivened.

1. The question then is whether the defendant is fit for trial.  "Fit for trial" is defined in the schedule to the Mental Health Act as:

"...fit to plead at the person's trial and to instruct counsel and endure the person's trial, with serious adverse consequences to the person's mental condition unlikely."

1. In R v. M [2002] QCA 464, the Court of Appeal approved the application of the tests in R v. Presser [1958] VR 45 at 48, namely whether the defendant has the ability:

(1)to understand the nature of the charge;

(2)to plead to the charge and to exercise the right of challenge;

(3)to understand the nature of the proceedings, namely, that it is an inquiry as to whether the accused committed the offence charged;

(4)to follow the course of the proceedings;

(5)to understand the substantial effect of any evidence that may be given in support of the prosecution; and

(6)to make a defence or answer the charge.

1. Both Dr Fama and Dr Kingswell considered the defendant unfit for trial.  They both were of the view that he would be incapable of giving his counsel rational instructions.  There was no challenge to a finding of unfitness for trial of a temporary nature. 

1. A forensic order must follow.

1. According to Dr Fama, the defendant is a very troubled man in need of a lot of help.  He has no insight into his condition.  He would need at least a year or two's treatment in hospital.

1. The defendant poses a grave risk to the safety of his wife.  She is a battered wife who, despite being badly injured by him in the past, has gone back to him and received further injuries.  On a scale of one to ten, Dr Fama put the risk to her at about nine or ten.  He said jealousy accounts for a third or a quarter of homicides in the community.  He said she needs counselling and help in finding an alternative place to live.

1. As the prosecutor observed, Dr Fama's evidence is chilling in its portent. 

1. I order that the defendant be detained as a forensic patient in The Park High Security Program Authorised Mental Health Service for involuntary treatment and care.  No limited community treatment is ordered or approved.

1. I direct that copies of the medical reports, the transcript and these reasons be made available to the treating team and to the Mental Health Review Tribunal in due course.