Re Cory

[2012] QMHC 27

MENTAL HEALTH COURT

CITATION:

Re Cory [2012] QMHC 27

PARTIES:

REFERENCE BY THE LEGAL REPRESENTATIVES IN RESPECT OF RAYMOND KAMUAI CORY

PROCEEDING NO:

No. 0039 of 2012

DELIVERED ON:

13 December 2012

DELIVERED AT:

Brisbane

HEARING DATE:

3 October 2012; 4 and 6 December 2012

JUDGE:

Ann Lyons J

ASSISTING PSYCHIATRISTS:

Dr E N McVie
Dr J M Lawrence

FINDINGS AND ORDERS:

CATCHWORDS:

1. The defendant was not of unsound mind as described in the Schedule of the Mental Health Act 2000 (Qld) at the time of the alleged offences;

2. That at the time of the alleged offence of murder the defendant was not of diminished responsibility;

3. The defendant is fit for trial; and

4. The proceedings against the defendant are to continue according to law.

MENTAL HEALTH – DECLARATION OR FINDING OF MENTAL ILLNESS OR INCAPACITY – where defendant charged with murder, two counts of rape, deprivation of liberty, two counts of assault with intent to commit rape, assault occasioning bodily harm and two counts of indecent assault – where the defendant diagnosed with paranoid schizophrenia – whether intentional intoxication contributed to the defendant’s mental state – 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 the defendant was of diminished responsibility at the time of the alleged offence of murder – whether the defendant was fit for trial

Criminal Code 1899 (Qld), s 27
Mental Health Act 2000 (Qld), Schedule

Reid v The DPP [2008] QCA 123

COUNSEL:

M J Byrne for the defendant
J Tate for the Director of Mental Health
S P Vasta for the Director of Public Prosecutions

SOLICITORS:

Cuthbertson & Co for the defendant
Crown Law for the Director of Mental Health
Office of the Director of Public Prosecutions (Qld)

ANN LYONS J:

1. This is a reference by the legal representatives for Mr Raymond Kamuai Cory filed on 16 February 2012. Mr Cory is charged in relation to two sets of offences. The first set of offences occurred on 29 April 2009. The second set of offences occurred on 24 May 2009.

1. In relation to the offences of 29 April 2009, Mr Cory is charged with two counts of assault with intent to commit rape, assault occasioning bodily harm and two counts of indecent assault.

1. In relation to the 24 May 2009 offences, Mr Cory is charged with murder, two counts of rape and deprivation of liberty.

The alleged offences

1. On 29 April 2009 there were two incidents involving Mr Cory assaulting young women which occurred about 20 minutes apart at 5.00 pm and 5.20 pm on that date. The first of the offences involved a 26 year old woman. At about 5.00 pm, as she cycled home from work, she saw Mr Cory standing near a creek. When she arrived home, Mr Cory came up to her and said “come with me there’s a crocodile in a creek”. As she walked with him to the creek, she became suspicious and started to run back to her house. Mr Cory chased her and she fell to the ground. He then grabbed her by the ankle and started to drag her along the ground towards the creek. She screamed for help. Mr Cory ran one hand down the inside of her thighs and started touching her on the vaginal area outside of her shorts. She continued to fight off Mr Cory by hitting him with her bike helmet and trying to scratch him. He then ran off and a member of the public rendered assistance to the complainant.

1. The second incident on 29 April occurred some 20 minutes later and involved a young 19 year old girl who was walking through the Cairns Centenary Lakes area. She was walking near a creek crossing when she heard a male voice and saw Mr Cory sitting on his bicycle. He asked if she wanted a local guide. After they had been walking for about five minutes, Mr Cory touched her on the back and asked her if she had been swimming.

1. He then asked her did she want to take her bikini top off. When she replied “no” he grabbed her from behind and grabbed her left breast. As she pushed his hand away, he placed his right hand between her legs and his left hand on her waist. He then threw her to the ground and got on top of her. He continued to pin her down to the ground and as she struggled to get up on one knee, he continued to try to push her to the ground. She managed to get away from him. Mr Cory stood up and grabbed her phone and said “You’re no fun”. She tried to get her phone back but he held it away from her before throwing it away. At that point, a member of the public came by and assisted.

1. In relation to the 24 May 2009 offences, the victim was an 81 year old single woman. At about 3.30 am on Sunday 24 May, police were called to an area at Freshwater in Cairns after reports that a male was assaulting and raping a woman in the area. When police attended, they found the elderly lady unconscious in the grasslands with her underwear and shorts pulled down around her knees. She was diagnosed with a significant head injury. She was placed on life support, but was pronounced dead later that day. The cause of death was an acute subdural haematoma. A distinctive black baseball cap was found at the area.

1. On 29 May 2011, Mr Cory went to the Cairns police station with a lawyer to eliminate himself from police inquiries as he looked similar to the computer image released to the media. He provided DNA samples. Police subsequently executed a search warrant at his residence and found a number of clothes items and a bicycle that had been freshly painted. DNA evidence located at the scene and the swabs taken from the deceased indicated that the DNA was consistent with the DNA provided by Mr Cory. Mr Cory subsequently left the Cairns area to work at a banana plantation. He was arrested on 27 July 2009 but refused to participate in an interview with police.

1. On 19 October 2010 a computer analyst prepared a report in relation to items Mr Cory had been searching on his computer at the time of the offences, as well as any documents which he had produced around that time. Ms Schwager stated that he had been searching news items about ‘gangs’ and ‘racist gangs’ in Cairns. She also found the following document which had been created on 28 May 2009 and amended on 29 May 2009:

“I was at 1 Cochrane St on Saturday 23^rd may. Kyle Murrays Birthday party from 11am to 8pm I consumed six mid strength beers and ate 3 steak burgers there. I then went to Adam gildings house at Romney St for Zharas party I consumed a rum & cola. At 3am I was riding from Adams house back home through lower freshwater. I was riding along Kamerunga St I stopped at my mates Brian Boldistons House at 123 Kamerunga st no one was home. I continued riding towards Stratford when I heard a womans voice crying I parked my bike next to a tree and ran along the train tracks. I saw two men grabbing a woman against her will dragging her across the tracks. I ripped one man off her [he was short, thin, tanned skin he had a moustache big eyes wearing an rugby jumper and tracksuit pants]. The other man [ taller 6ft+ he had white skin, long light beard, side burns, jeans, flanelet blue long sleeve he had a deep voice]. I said “what are you guys doing” to the tallerman he pulled out a small gun from his jeans and said “shut up get on your knees” the smaller one punched me in the stomach then kicked me off the tracks. The tall man pointed the gun at me and told me to “get on my knees and turn around” he then said to me “where do u live” “do u have any money” I shook my head. he said “do u want to die” I said “I would not tell the police and i don’t wanna be here” he grabbed my neck hard and pointed the gun against the back of my head and pushed my head into the womans bare bottom she was lying face down I could hear them laughing. He let go and ran away because a car drove by I then tryed to pick the woman off the ground and signal the car. I heard them running back along the gravel I was scared for my life that they were coming back to get me I ran to my bike and road fast past the site. Instead of riding home I rode back to 1 Cochrane St and went to sleep. I woke up Sunday morning 11am and rode straight home I got home at 12 noon. I was afraid for my life and my family.” (Typed as per statement)

1. There are a number of reports before the Court, in particular the reports of Dr Velimir Kovacevic dated 11 March 2011, Dr Lynne Steele (which is undated but was received on 6 August 2012), Dr Donald Grant dated 9 June 2012, as well as a memorandum dated 3 December 2012 from Dr Russ Scott, Mr Cory’s treating psychiatrist whilst he was at the High Secure Unit at The Park (“HSIS”).

1. Dr Kovacevic was the first psychiatrist to see Mr Cory for the purposes of providing a report and he interviewed him in February 2011, almost 21 months after the alleged offences.

Dr Kovacevic’s report and evidence

1. Dr Kovacevic, in his report, indicated that in his opinion Mr Cory suffers from paranoid schizophrenia and that over the course of several weeks preceding his alleged offending he was non-compliant with antipsychotic medications and he gradually deteriorated in his mental state. He noted that the principal manifestations of his mental disease included auditory hallucinations and delusional beliefs of a paranoid, persecutory and grandiose nature. He considered that he had false beliefs that he was being persecuted by racist gangs and that there was a conspiracy to kill him. He also indicated that Mr Cory had false beliefs that he had special powers and an ability to communicate with animals.

1. Dr Kovacevic considered that the paranoid delusions and auditory hallucinations are classic symptoms of schizophrenia and that that diagnosis had been firmly established several months earlier when he was admitted to the Royal Brisbane and Women’s Hospital. Dr Kovacevic also considered that there is historical evidence of Mr Cory presenting with probable psychotic symptoms when he was aged 12. He noted that his illness has been complicated by severe alcohol and polysubstance abuse. Dr Kovacevic noted that he continues to experience psychotic symptoms in the absence of illicit substances. He has only achieved substantial improvement following his hospitalisation at The Park.

1. Dr Kovacevic in his written report and in his oral evidence to the Court indicated that there were several features of his presentation which indicated that Mr Cory may have been of unsound mind at the time when he committed the offences. He noted that at the time when he committed all of the alleged acts there was an exacerbation of his schizophrenia, having discontinued treatment and having disengaged from psychiatric follow up. Dr Kovacevic noted that Mr Cory was able to successfully hide his symptoms from his family and mental health professionals. Dr Kovacevic considered that because of his psychotic symptoms Mr Cory was impaired in his ability to reason logically and rationally around the time when he committed the alleged acts. Dr Kovacevic considered that, based on his account of his mental state, Mr Cory felt threatened and persecuted and feared for his safety. He also considered that his paranoid delusional beliefs meant that Mr Cory was misinterpreting events in his environment.

1. In relation to the first two incidents on 29 April 2010, Dr Kovacevic noted that Mr Cory reported grandiose delusions that he was capable of wrestling a crocodile and communicating with animals. He also attributed delusional significance to rather innocuous stimuli such as seeing one of the complainants wearing a Maori necklace. He was also hearing auditory hallucinations telling him that he was an island warrior.

1. In relation to the murder, he considered that Mr Cory believed that there was a conspiracy to murder him and he thought there were people hiding in the bush beside the road. Mr Cory also claimed he saw faces coming out of the shadows. Dr Kovacevic indicated that Mr Cory does not have a history of similar type offending and that violent sexual offending might be regarded as incongruous in relation to his behaviour and background.

1. Dr Kovacevic noted there are multiple observations from several witnesses that he behaved strangely and that he was disorganised in his thinking and behaviour in the hours and days leading up to the murder. Dr Kovacevic noted that Mr Cory continued to experience psychotic symptoms in custody despite abstinence from alcohol and illicit substances.

1. However, Dr Kovacevic considered that there is a possible plausible alternative for the crimes, namely that he was pursuing the objective of sexual gratification although he noted that the rape of Ms Ball was more about power and dominance than sexual gratification. Dr Kovacevic noted that the victims of the attempted rapes provided similar accounts and they indicated a purposeful and instrumental behaviour on the part of Mr Cory. From those accounts Dr Kovacevic considered one could infer a clear intention to lure the victims into isolated areas so that he could sexually assault them. Dr Kovacevic also noted that their statements gave no indication of any particular unusual or bizarre behaviour. However, Dr Kovacevic also considered that given the rape was more about power and control such an act might possibly have a different motivation which was “driven by delusions” which is based more around power and dominance and the need to assert himself.

1. Dr Kovacevic also indicated that when he saw him Mr Cory claimed loss of memory for the critical aspects of all of the incidents but stated that he could recall events preceding and following the incidents. Dr Kovacevic stated in his written report that such amnesia for all three events was unusual and atypical. He now notes, however, that Mr Cory has now indicated that he was feigning amnesia as he was too scared to reveal what had really occurred and was concerned for his own safety. Dr Kovacevic in his oral evidence to the Court indicated that he was made aware of the contents of Mr Cory’s account of the offence which he prepared in May 2011 and amended in November 2011.   

1. In relation to the account that he now gives, Dr Kovacevic stated that if his account was accepted then he was “very, very psychotic” at the time of the offences.[1] He considered that if he were indeed experiencing all of those psychotic symptoms then a strong argument “can be put forward that he was indeed deprived of the capacities”;[2] most notably the capacity of control and the capacity to know he ought not do the act. Dr Kovacevic, however, stated that there was a proviso and that was whether he could accept Mr Cory’s account as ‘genuine’.   He continued:

“Well, that's one of the difficulties because often we do have to make a decision about, or the Court needs to make a decision about whether or not they accept the self account of the defendant who's allegedly the mentally ill person?‑‑ Yes.  Yes.  And mentally ill people can malinger mental illness.

Of course?‑‑ Mentally ill people actually good in malingering mental illness because they have a genuine experience of mental illness so they know how hallucinations, delusions feels, and they can - they can then recall and tell you about it.

Tell you about it?‑‑ So they are actually in an excellent position to malinger if they choose to.”[3]

[1]T3-11 at ll 24-25.

[2]T3-11 at ll 35-36.

[3]T3-12 at ll 7-20.

1. Dr Kovacevic also indicated that despite the severity of the psychotic symptoms Mr Cory described at the time of both sets of offences, no one at any time observed him to be overtly psychotic. Neither was he observed to be psychotic between 29 April and 24 May 2009, nor on his arrest.

1. In relation to intoxication, Dr Kovacevic noted that according to Mr Cory’s account he was under the influence of alcohol and substances at the time he committed all of the alleged offences and he admits to consuming a relatively large amount of alcohol and cannabis. Dr Kovacevic considered that there is no doubt that he was under the influence of alcohol and probably cannabis at the time of the murder.  Mr Cory told Dr Kovacevic that:

“He arrived there at around midday. He helped his friend to get ready for a barbecue later that afternoon. They opened a keg of beer and started drinking at around 2 pm. Mr Cory reported drinking around ten pots. He also consumed a large (440 milliliters) can of Jim Beam. For the rest of the afternoon he socialized with his friends and other people who came to the barbecue. He believed he stayed there for about six hours (until 8 pm). One of his friends brought with him a strong alcoholic beverage and Mr Cory had a shot of the liquor. He recalled that the drink burned his throat. He could not recall smoking any cannabis or taking any other drugs, including amphetamines...

They arrived at Zara’s place sometime between 8.30 and 9 pm. Mr Cory talked to several people he knew and consumed several cans of pre-mix alcohol beverage (two to three cans of Vodka based pre-mix drink). Over the subsequent few hours he also consumed half a bottle of rum. He was dancing and having a good time. At around 1 am he had a joint of cannabis. Immediately after that he started hearing voices (this was the first time that day that he experienced auditory hallucinations). He also started believing that he could read other people’s minds and hear their thoughts. He began feeling paranoid, thinking that people around him were making fun of him and mimicking his movements. He looked around and saw only a few ‘black people’ which made him feel increasingly uncomfortable. He felt surrounded by ‘white people’, most of them he thought racist. He recalled that his voices were getting more ‘aggressive and angry’ and that he felt unsafe, thinking that other party-goers wanted to fight him. As this was happening, Mr Cory decided to call his girlfriend Tania. He said he made this phone-call sometime between 1 and 2 am. His intention was to go to her place and have sex with her.”[4]

[4]Report of Dr V Kovacevic dated 11 March 2011 at pp 8-9.

1. Dr Kovacevic considered that the role of intoxication in relation to the alleged offences is unclear, particularly given the varying accounts Mr Cory has himself now given about his consumption of both alcohol and substances. In particular, he noted that Mr Cory had not only changed his account but that he had also given different accounts to different clinicians which seemed to minimise his alcohol use. He considered that one could infer that his minimisation occurred after he found out that his level of alcohol use could be a problem in the Mental Health Court.

1. He considered that it is possible he would have experienced psychotic symptoms, even in the absence of intoxicating substances on 29 April 2009 and that there were also significant situational and contextual factors at play on 24 May 2009 sufficient to cause exacerbation of his psychosis, even without alcohol or cannabis. Dr Kovacevic also considered that it was of relevance that he continued to experience psychotic symptoms far beyond his intoxicated state, ruling out the diagnosis of simple substance-induced psychosis.

1. Ultimately, Dr Kovacevic considered that the real dilemma was in deciding what the actual level of intoxication was given that no one was disputing that he had been drinking but rather the extent of his drinking. He stated “clearly some degree of being really under the influence was present, and it’s hard to deny that really, although there are different accounts of how much alcohol he consumed.”[5] Dr Kovacevic considered that it is possible that he could have been deprived of one of the relevant capacities on the basis of his psychotic symptoms alone. Dr Kovacevic did not consider there was any significant dispute of facts but he was unable to reach a definitive conclusion on the balance of probabilities in relation to the issues of unsoundness of mind and diminished responsibility.

   [5]T3-12 at ll 32-35. 

1. Dr Kovacevic considered that he was probably acutely psychotic at the time when he committed all of the offences and that it is more likely than not that there is a relationship between his psychotic illness and his alleged offending in relation to all of the incidents. Dr Kovacevic also indicated that the statement prepared by Mr Cory four days after Ms Ball’s murder, giving a completely different explanation for the murder and rape, does not necessarily mean he was not suffering from an abnormality of mind at the time, although it does not display any thought disorder and that it reads as “a very coherent, organised, grammatically organised statement.”[6] He also indicated that “the statement is peculiar in a sense that it gives alternative account of the incident which he then claimed lack of memory for. So, that doesn’t really make sense.”[7]

   [6]T3-26 at ll 57-58.

   [7]T3-27 at ll 12-14.

1. Ultimately, however, Dr Kovacevic considered that in the absence of a subjective account of his mental state, it was impossible to reliably reconstruct Mr Cory’s exact mental state. He would therefore stop short of actually supporting the defence of unsoundness of mind.

Mr Cory’s Statement dated 15 May 2011 and 15 November 2011.

1. Mr Cory provided a typed statement prepared by him on 15 May 2011. This document was provided to all of the reporting psychiatrists, except Dr Kovacevic who had prepared his initial report before that document was prepared by Mr Cory. That statement was then amended by hand by Mr Cory on 15 November 2011 after he had seen Drs Grant and Steele and after their reports had been prepared but before they gave evidence in court.

1. In his initial statement, Mr Cory indicated that in the days leading up to the offences on 29 April 2009 he had been feeling very paranoid and was experiencing auditory hallucinations. On the morning of 29 April he rode to TAFE where he met some friends and he bought $50 worth of marijuana and a carton of beer. He stated that during this process he could hear his friends’ thoughts out loud but they were quite positive. He stated he went for a swim in the lagoon pool and thought everyone was looking at him. He swam with a young Asian woman and had thoughts of sex. He recalled her cuddling him in the water and he had an erection. He believed he could read her thoughts about wanting to have sex with him and he thought he heard three different kinds of hallucinations in his head. He stated the first was a voice that was narrating everything he did and saying things to him. The second voice was that of a female Asian whom he described as making sexual noises. The third kind of hallucination he interpreted as ninjas spying on him.

1. During the day he said he felt quite powerful and believed that all females were attracted to him. He also thought he could call animals and control them. Mr Cory also reported that late that afternoon he was following a creek and thought he saw a crocodile. He then saw an Asian girl and he heard a voice in his head say “kill two birds with one stone”, which he interpreted to mean that he could kill a crocodile and have a girl as well. He called the girl over, saying at that time he was hearing sex noises in his head and his mind was spinning out.  He stated he recalled getting her to come and look at the crocodile which he thought he had seen. He remembers her starting to run away and he remembers running after her and pulling at the hood of her jacket. He remembers laughing at her and pulling at her leg. He recalled a voice saying to him “tickle her pussy”. He remembers grabbing at the girl and then running away. As he was running away he said that the voices he was hearing were saying that they would rape her. He told the psychiatrists that he was feeling very paranoid.

1. He stated he then ran to the TAFE college feeling agitated and was experiencing hallucinations. He rode his bike fast to the Centenary Lakes area where he started to feel more settled. He then saw a woman and called to her. He noticed she was wearing a Maori jade necklace and that seemed to have special significance for him. However, he became wary of the girl, thinking she might be part an underground society. He then began to believe that she had been placed there to try and seduce him and he was told by his voices to take her down and use her. He remembers feeling very confused and he recalls throwing her phone away.

1. In relation to the incident in the early hours of 24 May 2009, he stated that on 22 May he drank about eight beers and smoked about seven cones of marijuana. He said he then watched television and the television seemed to be talking to him. For about an hour he yelled comments at the television, which his friends witnessed.

1. In relation to his drinking on Saturday 23 May, he said he began drinking at about 2.00 pm. The typed statement shows the amendments by hand on 15 November 2011 in italics as follows:

“I started drinking at around 2pm that afternoon I consumed 8 small cups of mid strength beer, 1 can of Jim beam premix , and a shot of small cap full absinthe liquer in 7 hours. While at the BBQ I could hear my friends thoughts especially the girls. The thoughts were positive towards me. I remember telling a friend (Scott) armstrong or Jason Goodhew that I was tripping out and hallucinating watching the T.V screensaver. At 8:30pm I decided to leave for another party at another friends house. My mate Jason rode my bike there so I had to get a lift from a friend. I arrived at the party at 9:00pm. I was talking and socializing. I was very self conscious and I thought it was all about me. I thought everybody knew who I was and were all talking about me. I thought there were some people making fun of me and mimicking me riding a bike. I drank less than ¼ of a couple of mouthfuls of bottle of rum and 2 1 cans of premixed vodka in 5 hours. I did not feel drunk & was not intoxicated & there are many statements of other people who knew me to support this these statements are of people who were sober on the night & who made these statements in the followings weeks & also at committal I spaced out my drinks in a 11 hour period. I just felt very aware of my surroundings. I kept looking over my shoulder and around me to see if anyone was watching me.”[8] 

[8]Statement of R Cory at p 4.

1. He said that during the afternoon party he could hear the thoughts of his friends out loud and he said it was as if he was in the Mel Gibson movie ‘What Women Want’, where he could hear the thoughts of women. He recalls telling a friend that he was tripping out and hallucinating.

1. Mr Cory said he felt he was talking a lot and he had the feeling that he had to let it all out and tell people exactly what he was thinking. He remembers talking in a rambling way, particularly about environmental issues. He then went to a second party after midnight and had a couple of drags on a marijuana joint and felt a little high. He then called his girlfriend planning to go around and visit her and have sex. He then noticed, however, he was getting more involved in the party and did not want to leave. He got involved with the fire twirling and throwing things onto a fire and behaving in an odd way including jumping in front of cars on the street. He stated he recalled hearing a lot of voices and was feeling very paranoid and was talking a lot and rambling on.

1. He did not leave the party until about 2.30 am when he got on his push bike. He recalled riding along on his bike feeling paranoid and was worried he was going to be ambushed. He thought that people were hiding behind every bush and he felt scared. A white utility then sped by almost hitting him and he was fearful that someone was out to get him. He then described racist gangs and other people threatening him and thought everyone was in on it. He thought everyone was keeping tabs on him. A bike rider then rode past and he remembers swearing at him, thinking he was going to attack him. He then saw a woman wearing a fluorescent vest and thought that because of her clothing she was a police woman. The voices in his head were saying that they would rape her. He stated that his head was spinning from all the thoughts and voices and there were various kinds of gangs involved.

1. He then saw a friend in the street and warned him that it was a dangerous place and that there was a racist gang about. He recalls the friend asking him whether he was high and advising him it would be best to sleep at a friend’s house that night. Mr Cory said he was worried that his mother and sister might be raped. Mr Cory then rode to his friend’s place but when he got there he saw a white utility and though it might be the one that nearly ran him over. He then saw the woman in the fluorescent jacket again and he remembers running up, grabbing her and yelling at her that the police are here and wanting to know what the police would be doing. He was yelling at her and telling her to stop following him.

1. He stated that she was replying to him in some way but his head was full of voices. He said the voices were telling him to rape her. He remembers pushing her over and feeling he had to rape her. He then said he had quick sexual intercourse with her and that she was asking him to stop. He said the voices told him that he needed to knock the woman out and not let her see him. He believes he then assaulted the woman by hitting her or, alterntatively, she hit her head on the ground. He could not be sure which. He had thought a lot about whether he hit the woman with his right hand or left hand or whether he slammed her head into the ground but he could not work it out.

Dr Grant’s report and evidence

1. Dr Grant indicated that at the time of all of the offences Mr Cory was suffering from paranoid schizophrenia which would have been sufficient to deprive him of the capacity to know he ought not do the acts. He considered that his illness was severe and that symptoms were very intense. He noted that he was experiencing confusing and command hallucinations and was affected by grandiose and paranoid delusions which in all of the offences came to involve the victims.  Dr Grant considered that Mr Cory felt compelled to carry out the actions and therefore was unable to reason with any degree of sense and composure about the rightfulness or wrongfulness of the actions. He therefore considered that Mr Cory was of unsound mind at the time.

1. Dr Grant noted, however, that there were some aspects of the history and the presentation which might give rise to some uncertainty about the correctness of a finding of unsoundness. Those aspects included his initial denial, his attempt to cover his actions by painting his bike and his subsequent claims of amnesia for the events, as well as some inconsistency in his accounts of his drug and alcohol use. Dr Grant also noted his failure to reveal symptomotogy in the past is an important inconsistency.

1. Having reviewed the entire history, Dr Grant considered that those matters can be explained by Mr Cory’s psychotic illness, his limited insight and his ongoing fears and anxieties about his situation.

1. Dr Grant considered there is ample evidence from his history and the observations made in prison and in hospital that he suffered from a serious psychotic disorder and continued to do so throughout the time of the offences and that the psychotic disorder continued independent of alcohol or drug use. Dr Grant noted that Mr Cory has improved steadily and remarkably on treatment and has now presented as insightful and a reasonable historian.

1. In relation to the question of intoxication, Dr Grant noted a history of chronic abuse of marijuana which continued at the time of the offences. Dr Grant noted that given he was using cannabis for a long period of time, he would be quite tolerant to the effects of cannabis and that cannabis is not itself usually associated with violent behaviour.

1. In particular, I note that Dr Grant considered that the use of alcohol at the time, on the totality of information to hand, would appear to be moderate and, with intake spread over many hours, there is no evidence that he was significantly intoxicated. Dr Grant noted that he commenced drinking alcohol about 2.00 pm and had eight small mid-strength beers, one can of Jim Beam and a nip of absinthe. Dr Grant noted that his drinking was spaced out over 11 hours and that he indicated to him that he was not intoxicated.

1. Dr Grant considered that there is strong evidence that Mr Cory’s psychotic illness was increasingly bizarre and was influenced by delusions and hallucinations which were seen at the time of his admission to the Royal Brisbane Hospital prior to these offences. He considered it was clear that his psychotic illness was deteriorating and his family were reporting that he was increasingly irritable and rather aggressive. He also noted he became involved in an aggressive incident at the TAFE College, secondary to his psychotic symptoms. Dr Grant therefore considered that there was severe psychosis without any necessary contribution from intoxication.

1. Dr Grant considered a Forensic Order was required to ensure the safety of the community and Mr Cory’s future treatment needs. Dr Grant noted that Mr Cory continues to suffer symptoms of paranoid schizophrenia albeit now attenuated. He considered that Mr Cory would benefit from more rigorous treatment and closer psychiatric follow up and that he would be appropriately placed in the HSIS of The Park for future treatment and rehabilitation. He does not consider he is fit for Limited Community Treatment at this time and considers he would require quite an extensive period in hospital undergoing rehabilitation before Limited Community Treatment should be considered.

Dr Steele’s report and evidence

1. Dr Lynne Steele noted that Mr Cory was suffering from paranoid schizophrenia at the time and that this was evidenced by a variety of symptoms including thought disorder, grandiose and paranoid delusions, auditory hallucinations, command hallucinations, running commentary, thought insertion and delusions of reference.

1. Dr Steele considered that the history of the mental illness seems to be of several years standing and that his psychotic symptoms first commenced at the age of 12. She noted that a formal diagnosis of schizophrenia was made in 2008 when he was placed under the care of the Royal Brisbane Hospital Mental Health Team. Dr Steele stated he was observed in prison to have symptoms consistent with schizophrenia and transferred to the HSIS where he was continued on antipsychotic medication. Dr Steele considered that he continues to have symptoms consistent with paranoid schizophrenia and does not consider that it is sufficiently controlled and managed at this point in time. She noted the long history of alcohol and substance abuse.

1. Whilst she noted that there was a diagnosis of antisocial personality disorder, she did not consider there was any evidence of an antisocial personality disorder. In her view he was suffering from paranoid schizophrenia which was sufficient to deprive him of the capacity to know he ought not do the acts. Dr Steele considered he experienced intense paranoia with grandiose and paranoid delusions and command hallucinations, as well as thought insertion which involved all of the victims. In relation to the psychotic symptomatology she stated there was an intense level of compulsion to carry out the acts and as such she initially considered he was deprived of the capacity to know he ought not do the act and deprived of the capacity to control his actions and, accordingly, he had a defence of unsoundness of mind for all of the offences.

1. At first Dr Steele considered that whilst he initially appeared to cover his actions by painting the bike and also claiming amnesia, she believed that those matters could be explained in the context of a psychotic illness and fear and anxiety in relation to his own safety. She stated that he gave her a very detailed description of thought disorder, as well as paranoid and grandiose delusions and “a sense of fear that he was at risk of attack by racist gangs”.[9] Her conclusion was made on the basis of the information he gave her that painting the bike was an attempt to “cover his tracks, really, to protect himself”.[10]

   [9]T2-3 at ll 33-34.

   [10]T2-3 at ll 36-37.

1. Dr Steele stated that during his time in custody his psychotic illness remained sub-therapeutically treated and that his symptoms remained in the absence of alcohol or substance misuse. Dr Steele also noted that there was a longstanding history of alcohol and substance misuse which can affect the onset of a schizophrenic illness and exacerbate it in terms of relapse. She noted that his cannabis misuse had not increased at the time of the offences and was longstanding. She considered that his use at the time was in keeping with his longstanding use and therefore tolerance of the drug.

1. Dr Steele noted that there were conflicting witness statements, some which said he was pretty drunk and staggering with slowed speech and others who stated that he did not seem excessively drunk. Dr Steele considered that on review of the witness statements, many of the accounts could be a description of unusual behaviour in the context of florid psychosis.

1. Dr Steele in her oral evidence indicated to the Court that she did not consider there was any firm evidence to indicate he was intoxicated in relation to the 29 April offences. Dr Steele was concerned, however, that Mr Cory had to some extent “minimised his level of intoxication, be that from alcohol or substances. I would have to conclude that I think there has been some level of intentional intoxication here on the background of a psychotic illness.”[11]

   [11]T2-8 at ll 9-12.

1. In relation to the offences on 24 May 2009, Dr Steel indicated that he was “adamant that he did not feel intoxicated”[12] and that his intake was spread over many hours. She noted Dr Scott’s recent report of 3 December 2012, which made reference to the notes of his admission to the HSIS on 9 September 2010 and accepted that there was contradictory evidence as to the level of his intoxication at the time and that he had given a different account of his consumption of alcohol to a number of psychiatrists. She stated she “was aware of the conflicting information he gave to both Dr Scott and the first psychiatrist”[13] and indicated that that caused her some concern.

   [12]T 2-3 at ll 46-47.

   [13]T2-3 at ll 52-53. 

1. In addition, Dr Steele indicated “I also felt that he was well versed with the issue of intoxication in relation to a mental health defence and I felt that he made that point at several times throughout the assessment.”[14] She concluded that there was “a real disparity and I’m not sure, to be honest, what is the truth here.”[15]  Accordingly, she considered there was a dispute of fact.

   [14]T2-4 at ll 2-5. 

   [15]T2-4 at ll 8-10.

1. In relation to the question of whether Mr Cory would have been psychotic and deprived of capacity irrespective of his level of intoxication, Dr Steele indicated that given his ability to prepare a written statement as he had done just four days after the alleged offences she was now not certain. She had not been aware of Ms Schwager’s statement until just prior to giving evidence to the Court.  She stated:

“...one of the other issues that I have is the statement from the forensic computer analyst…I did not receive until yesterday and that, certainly, also throws into consideration the issue of intoxication again and, I suppose, with regards to his ability to produce a statement like that four days later if the offence was purely driven by psychosis.

...on the basis of the history he gave me about his level of alcohol and cannabis consumption, I felt it probably wasn't sufficient with the history I had at the time to account for his lack of capacity alone.  I felt that the psychosis drove that, however, four days later he has apparently produced a statement on a computer that I find really hard to marry with the picture of a man so psychotic to the extent that he was deprived of capacity who can then, four days later, produce such a coherent statement.

...that four days later they can produce a statement on a computer that has no evidence of psychosis, no evidence of thought disorder.  There's no interjection of his psychotic process here and, quite frequently, if someone is so thought disordered when they write you can also see evidence of that thought disorder.  I can see none of that here and this statement, to me, indicates more a presence of mind and a capacity and a knowledge that the act was wrong.  I don't believe someone with that level of psychosis to deprive him of capacities could produce something like this as soon as four days later”[16]

[16]T2-4 at l 21 – T2-5 at l 11.  

1. Ultimately, Dr Steel concluded that the issue of intoxication for her was a considerable issue given Mr Cory’s statement he prepared on 28 May. She considered that “it’s very reasonable to conclude that intentional intoxication did play a part such that it has caused the deterioration to his mental state that four days later has improved to the extent that he could write the statement.”[17]

   [17]T2-6 ll 34-45.

Dr Scott’s evidence

1. Dr Scott’s memorandum of 3 December 2012 set out extensive background information and opinion in relation to all the charges at relevant times.  He also included a chronology from 10 January 1989, when Mr Cory was born, to 2012. In 2004, at around 15 years of age, Mr Cory began his heavy use of cannabis and alcohol, which included binge drinking. By age 16, he was also taking amphetamines, MDMA and hallucinogens.  In 2005 he crashed his mother’s car and was convicted of driving intoxicated without a licence. In November 2006 he was convicted for public nuisance and assault/obstruct police. He moved out of his mother’s home at age 18 and continued heavy alcohol and substance use.

1. At age 19, on 29 November 2008, he had his first documented psychotic episode which he considered was in the context of heavy cannabis use. He was admitted to the Royal Brisbane Hospital’s mental health unit on an Involuntary Treatment Order and Dr Scott accepted in his oral evidence that the notes of that admission record that he denied regular use of substances and that his urine drug screen after his five week admission was negative for illicit substances. He was discharged on 22 December 2008 and advised to continue oral Risperidone (four milligrams nocte) and engage with follow-up from the Cairns Mental Health Service as a voluntary patient. Mr Cory was counselled to abstain from further cannabis use.

1. On 13 March 2009 Dr Scott noted that the notes from the Mental Health Service indicate that he negotiated to reduce his risperidone dosage. On 3 April 2009 he reported that he ceased taking Risperidone and advised that he felt “well”. He declined further follow up with Community Mental Health. He was warned about the risks of relapse and was referred to a local general practitioner for follow up.

1. On 5 April 2009 Mr Cory’s mother phoned the case manager and reported that her son had begun using cannabis again and was aggressive towards her and his 13 year old half-sister and demanded money to purchase cannabis.

1. Dr Scott noted that after the offences were committed he was arrested and placed in custody. He was transferred on 9 September 2010 to HSIS from correctional custody and Dr Scott became Mr Cory’s treating psychiatrist. On admission to HSIS Mr Cory admitted that he had resumed using hydroponic cannabis after ceasing his antipsychotic medication.

1. He stated that during his three week admission Mr Cory developed good insight into his psychosis and the need to adhere to prescribed medication.

1. Dr Scott, in his discharge summary dated 30 September 2010, stated:

“During his admission to HSIS, Mr Cory reported that during the day of 23 May 2009, he partied with friends into the night and consumed at least 10 standard drinks of beer and half of a 750ml bottle of rum and also consumed cannabis. He acknowledged that he may have used other substances.

Mr Cory reported that he was heavily intoxicated when he was riding on his bicycle at 230 hours the next morning (24 May 2009). During his admission to HSIS, Mr Cory described ‘flipping out’ and believed that ‘someone’ was pursuing him (a ‘ute was following me’). Mr Cory made the comment ‘…an old lady got involved and died.’ Mr Cory reported: ‘I was delusional at the time’ but was otherwise unable to elaborate upon what occurred.”

1. Dr Scott stated in his report that “Mr Cory was intentionally intoxicated with alcohol and cannabis at the relevant times of the alleged offences, it is very likely that the intoxication would have disinhibited Mr Cory's behaviour”.[18]

   [18]Report of Dr R Scott dated 3 December 2012 at p 3. 

1. On the question of mental illness, unsoundness of mind and diminished responsibility, Dr Scott stated Mr Cory has a history of a psychotic disorder.  He said:

“On admission to HSIS on 9 September 2010, Mr Cory disclosed that after he ceased antipsychotic medication in April 2009, he resumed using hydroponic cannabis.

In the context of substance use and/or stress (including being separated from his supports and with the uncertainty of his future and forensic issues and being subject to victimisation by co-inmates during his incarceration), Mr Cory is vulnerable to developing dysphoria, persecutory delusions, ideas or delusions of reference, delusional and abnormal percepts like hallucinations.

However, in my opinion, other than from his own account, there is no compelling connection between his psychotic disorder and his alleged offences.”[19]

[19]Ibid at p 4. 

1. In Dr Scott’s opinion,

“at the relevant times of his offences:

·Mr Cory had a psychotic disorder (paranoid schizophrenia or substance-induced psychosis) and Mr Cory was intoxicated with alcohol and cannabis which Mr Cory had voluntarily consumed

·the alcohol and cannabis which Mr Cory voluntarily consumed during the period immediately prior to the relevant times continued to have a deleterious effect on Mr Cory's mental state at the time of the offences

·Mr Cory was not deprived of the any of the relevant capacities

·Mr Cory may have had a substantial impairment of the capacity to know that he ought not do the acts which gave rise to the offence of murder

·Mr Cory would not have had a substantial impairment of the capacity to know that he ought not do the acts but for the continuing effects on his mental state of the alcohol and cannabis which he had voluntarily consumed during the period immediately prior to the murder.”[20]

[20]Ibid at p 5.

1. I note that Counsel for Mr Cory has pointed to a number of errors in Dr Scott’s report, particularly in relation to whether Mr Cory’s admission to the Royal Brisbane Hospital in December 2008 was a consequence of excessive cannabis consumption. I do not consider that the errors such as they are detract from that report. I have placed particular significance on the primary sources Dr Scott refers to in assessing his views, particularly the hospital notes recorded at the time of his admission to both the Royal Brisbane Hospital and HSIS.

The advice of the assisting psychiatrists

1. The assisting psychiatrists considered that Mr Cory suffers from chronic paranoid schizophrenia which was first diagnosed during his admission in 2008 to the Royal Brisbane Hospital. They considered that he had probably had some symptoms for that psychotic illness for a number of years prior to that admission. They also considered that the history indicates evidence of probable psychosis in the context of polysubstance abuse in the lead up to 2008. Whilst Mr Cory was prescribed antipsychotic medication in early 2009, he ceased his Risperidone in April 2009 and returned to his previous habit of using cannabis and alcohol.

1. The psychiatrists noted that both sets of offences in April and May 2009 were associated with a history of the use of alcohol and cannabis in the lead up to the offence and noted that the use of cannabis and alcohol leading up to the offence commenced several hours prior to the offending behaviour. Both psychiatrists noted that there was no objective evidence in relation to the level of any intoxication present. They considered that the witness accounts in relation to Mr Cory’s level of intoxication were not reliable. They were all lay witnesses who were at a social event, many of whom had not had much contact with Mr Cory previously and many of them were also intoxicated to various levels. Both confirmed that there was difficulty in accepting any of that evidence as an objective indication of his level of intoxication.

1. The psychiatrists noted that Mr Cory had given various accounts of his substance use around the time of the offences and that increased the unreliability of any assessment of his intoxication and it increased the difficulty of it determining whether intoxication was involved.

1. Both psychiatrists noted that whilst there is a consistency in his accounts of his mental illness to both Dr Grant and Dr Steele, those reports of his psychosis did not occur until three years after the alleged offences. Dr McVie in particular noted the symptoms he described to Dr Steele and Dr Grant and indicated that he was experiencing no symptoms at the time of the alleged offences which would constitute a significant and florid psychotic illness. Dr McVie noted, however, that there was

“no subsequent objective evidence of such a psychosis documented in either the prison mental health assessments or even during his admission to [H]igh [S]ecure.

He's also currently on 7.5 milligrams of olanzapine, which is an oral medication and a relatively small does (sic) of antipsychotic.”[21]

[21]T3-41 at ll 15-21.

1. Overall, Dr McVie’s advice was that while Mr Cory’s illness may have played a role in his thinking at the time of the offences, it is more likely than not that the events would not have occurred in the absence of the prior alcohol use. Dr McVie’s opinion was that it may be that the alcohol and cannabis served to exacerbate the severity of his symptoms at that time and that may explain why his symptoms settled after each of the alleged offences.

1. Dr McVie advised that I should accept the opinion of Dr Scott that it is more likely than not that intoxication did play a significant role in Mr Cory’s mental state at the time, as well as the revised opinion of Dr Steele in her oral evidence, which cast doubt on the severity of his symptoms at the time. Dr McVie was not satisfied that Mr Cory’s mental illness would have been severe enough to deprive him of any of the relevant capacities.

1. Dr Lawrence agreed with Dr McVie’s advice. She noted in her advice that Mr Cory was first seen by Dr Kovacevic in February 2011 and he prepared a report dated 11 March 2011 which was some considerable period of time after the alleged offences. She noted that during that entire period he did not reveal any of the psychotic experiences that he now says were present at the time of the commission of the offences in April and May 2009. She also noted that he did not reveal to Dr Kovacevic his account of the critical period covering the actual events. He subsequently told Dr Grant that he did not feel safe to do so at that point in time. Dr Lawrence noted that it was not until after the committal hearing that he was able to provide a more extensive account to both Drs Grant and Steele. “That account gave extensive detail, which he was by then recalling, of his psychotic experience, and his claimed drug usage at the time – the time that is of the relevant offences.”[22]

   [22]T3-45 at ll 19-21.

1. Dr Lawrence noted that Dr Grant recorded the inconsistencies in Mr Cory’s account to him, but that his view remained the same.  This was based on the information he was given and the lack of adequate corroboration as to alcohol and drug intake, together with very clear evidence of the presence of schizophrenic illness. Dr Grant considered that the mental illness deprived him of capacity to know he ought not do the act. Dr Lawrence noted that Dr Grant did not consider that intoxication would have been sufficient to contribute to any extent to his state of mind at the time. She noted that Dr Grant conceded that his opinion was dependent on an account of the mental state given to him by Mr Cory. Dr Lawrence concluded, however, that in her view:

“The evidence of intoxication to me is strong enough for it to have had a significant effect on his mental state. At least leading to some exacerbation or acceleration which may have had an effect on his immediate subsequent behaviours, his attitudes, his planning and in his medium and longer term actions.

This amounts to an opinion that you cannot exclude the possibility that he had such an awareness of his crime and came to understand the legal implications in his defence especially for a mental health defence, so that it was possible that he was able to construct on the basis of real psychotic experiences, an account of his psychosis which would seem to provide a defence of unsoundness even if some intoxication consistently downgraded in degree by him was acknowledged.”[23]

[23]T3-47 at ll 21-34.

1. Dr Lawrence considered that Dr Kovacevic could not come to a conclusion on the balance of probabilities that Mr Cory’s psychotic state was influenced to any extent by the presence of intoxication. He also considered that issue related to the question of unsoundness as well as diminished responsibility. Dr Lawrence considered that was the position Dr Steele also found herself in. Dr Lawrence noted Dr Scott’s firm view that intoxication was present. Ultimately, Dr Lawrence considered that there was no dispute about the fact Mr Cory had a psychotic illness and that he was suffering from that at the time of these offences. Dr Lawrence indicated that there was a lot of supportive evidence from the psychiatrists to indicate that until it became utilitarian for him to acknowledge it he denied the presence of the illness or its significance and had rejected the need for treatment. She considered that the use of alcohol and cannabis virtually on a daily basis would have had the effect of aggravating his psychosis.

Was Mr Cory in a state of mental disease at the time of the commission of the alleged offences?

1. The term ‘unsound mind’ is defined in the Schedule of the Mental Health Act 2000 (Qld) to mean:

“the state of mental disease or natural mental infirmity described in the Criminal Code, section 27, but does not include a state of mind resulting, to any extent, from intentional intoxication or stupefaction alone or in combination with some other agent at or about the time of the alleged offence.”

1. Section 27 of the Criminal Code 1899 (Qld) (“the Code”) provides:

“Insanity

(1) A person is not criminally responsible for an act or omission if at the time of doing the act or making the omission the person is in such a state of mental disease or natural mental infirmity as to deprive the person of capacity to understand what the person is doing, or of capacity to control the person's actions, or of capacity to know that the person ought not to do the act or make the omission.” 

1. Having considered the reports of Drs Grant, Steele, Kovacevic and Scott, I am satisfied that Mr Cory was suffering from a mental illness at the time of the commission of the alleged offences on 29 April and 24 May 2009. All of the doctors who have provided reports and the assisting psychiatrists are all agreed that Mr Cory has a diagnosis of chronic paranoid schizophrenia which is a psychotic illness. I accept that Mr Cory experiences a number of symptoms as a result of that illness including thought disorder, grandiose and paranoid delusions, prominent auditory hallucinations, some visual hallucinations as well as ideas of reference, thought broadcasting, thought insertion and passivity phenomena.

1. All of the psychiatrists explored the development of that illness and how he was first diagnosed in December 2008 during his admission to the Royal Brisbane Hospital. He was placed on antipsychotic medication, specifically Risperidone, and warned on the dangers of the concomitant use of illicit substances. Mr Cory discontinued the use of the medication. All of the alleged offences all occurred within six months of his initial diagnosis.

1. I am satisfied therefore that for the purposes of s 27 of the Code he was suffering from a state of mental disease as required by the section at the time of the commission of the alleged offences.

Did that mental illness deprive Mr Cory of capacity to understand what he was doing, or of capacity to control his actions, or of capacity to know that he ought not to do the act or make the omission at the time he did the act or made the omission? 

1. The next question to be determined is whether the mental illness by itself deprived Mr Cory of any of the relevant capacities at the time of the commission of the alleged offences.  The real issue is whether Mr Cory was psychotic to such an extent that he was deprived of one of the capacities. All of the psychiatrists have indicated that there are real difficulties in coming to conclusion to this question on the balance of probabilities for a number of reasons. 

1. The first difficulty is that we only have Mr Cory’s self report as no overt psychotic symptoms were observed by either complainant on 29 April or by any of the witnesses on 24 May 2009.

1. In addition, Mr Cory did not mention any psychotic symptoms to anyone at the time. He did not indicate his psychotic thinking to Mental Health Staff at the Capricornia Correctional Centre after his arrest. At some point in 2009 he told Dr Todorovic from the Prison Mental Health Service that he was experiencing anxiety symptoms and insomnia and he was placed on Risperidone. That medication ceased in September 2009 as he was experiencing side effects.

1. It was not until July 2010 that he was then noticed to be fatuous, perplexed and exhibiting odd behaviour. Those behaviours prompted his admission to HSIS for observation and assessment and he was placed on a relatively low dose of medication and returned to prison after a three week admission. His psychotic thinking was not revealed during that admission. Mr Cory did not reveal his psychotic thinking until he saw Dr Kovacevic in February 2011, more than a year and a half after the events in question. Significantly, when he did reveal his psychotic thinking around the time of the offences to Dr Kovacevic, he claimed he had amnesia for the critical incidents on both dates. He subsequently admitted this was incorrect and explained he had not revealed his thought process at the time due to fear for his safety.

1. I note that his illness has in fact been characterised by paranoid and grandiose delusions which often features themes about being pursued by ‘gangs’ and the ‘mafia’, as well as a need to somehow prove himself. There is no doubt that his accounts of his thinking at the time of the commission of the events do display very disordered and psychotic thinking.

1. However, as the assisting psychiatrists point out, he was able to function in the month between the first set of offences and the second set without being observably psychotic. He also left Cairns to work in Tully shortly after the events occurred and worked as a banana picker for a number of weeks without any reports of him being acutely psychotic to the extent Mr Cory has outlined in his prepared statement.

1. There are also a number of Mr Cory’s actions which seem purposeful and planned and as such raise a doubt as to the level of his psychosis. Mr Cory admits that he painted his distinctive bike after the events on 24 May in an attempt to disguise it. The evidence also indicates that he was able to conduct internet searches and prepare a logical statement exculpating himself within four days of the events of 24 May 2009.

1. I note that Dr Grant was the only psychiatrist who was able to conclude that Mr Cory’s psychosis at the time of all of the events was operating to such an extent that he was deprived of the capacity to know he ought not do the act.

1. I am not, however, able to reach the same level of satisfaction. On the evidence before me, I am not able to conclude on the balance of probabilities that Mr Cory was experiencing a psychotic episode to the extent that he was deprived of any of the relevant capacities on either 29 April or 24 May 2009. There may be sufficient evidence to conclude that he was substantially impaired in relation to the capacity to know what he was doing was wrong for the offence of murder on 24 May. In that regard, however, a further difficulty arises in that I consider that, to the extent that he was experiencing a psychosis on either 29 April or 24 May, such a psychosis was to some extent a result of deliberate intoxication.

Did Mr Cory’s state of mind result, to any extent, from intentional intoxication or stupefaction alone or in combination with some other agent at or about the time of the alleged offence?

1. The relevance of the question of intoxication was examined by Keane JA (as he then was) in Reid v The DPP,[24] as follows:

   [24][2008] QCA 123.

“[30]      It is important to emphasise here that, while s 405(1) of the Act provides that no party bears the onus of proof of any matter, the Court still had to decide on the balance of probabilities under s 405(2) whether the appellant's state of mind at the time of the alleged offence resulted "to any extent" from intoxication. In this regard, it must be noted that whether or not the appellant would have been experiencing a psychotic episode at that time even if he had not taken amphetamines is not the issue posed by s 267(1)(a) and the definition of "unsound mind" in the Act.

[31] Dr Kovacevic accepted that the appellant's "lack of memory for the alleged offence could be attributed to the effect of amphetamine intoxication." It is, to say the least, difficult to see how it could sensibly be said, in the light of this acknowledgment, that the appellant's state of mind when the offence was committed did not result, to some extent at least, from intentional intoxication.

[32] On its face then, Dr Kovacevic's opinion does not support the conclusion, on the balance of probabilities, that the appellant's state of mind at the time of the taxi driver incident did not result to any extent from his injection of speed earlier that evening. This difficulty for the appellant was apparent on the face of Dr Kovacevic's report. The observations of Drs Wood and Lawrence served to highlight that difficulty, but it was obvious on the face of Dr Kovacevic's report.”

1. I consider that the evidence before me indicates that Mr Cory consumed a significant quantity of both cannabis and alcohol on the morning of the alleged offences on 29 April. On his initial account to Dr Kovacevic he stated that he had at least 10 cones and 10 beers, although he later changed that to six beers over five or six hours. Furthermore, on the evening before the murder on 24 May, Mr Cory stated he had been drinking since early afternoon and had had about 10 pots as well as a can of Jim Beam and some strong liquor. He subsequently had half a bottle of rum and some cans of pre-mixed vodka during the later part of the evening. He had some cannabis and immediately started hearing voices.

1. I consider that it is significant that when he gave his first account of his consumption of substances at the time of the alleged offences, to the HSIS staff on intake in September 2010, he told them that on the night of the murder he was “drunk and under the influence at the time” and that there was “lots of alcohol”. In this regard I note in particular the admission notes to HSIS on 8 September 2010 indicate that even though he had made those statements there was a concern he “appeared to be evasive when trying to determine amount of alcohol and drug use. It would be thought that the patient was underestimating volumes.”

1. On the evidence before me, I consider that it is highly probable that the alcohol and marijuana consumed by Mr Cory around the time of the offences on both 29 April and 24 May contributed to the deterioration of his already fragile mental state. I therefore consider that on both dates Mr Cory’s state of mind at the time of the alleged offences resulted to an extent from his intentional intoxication of substances. I accept the advice of the assisting psychiatrists that as his psychotic symptoms seemed to settle after the offences on 29 April and again after 24 May in the absence of substances, the substances must have played a role in his deteriorated state of mind.

1. Accordingly, I am unable to be satisfied on the balance of probabilities that Mr Cory was of unsound mind at the time of the commission of any of the alleged offences.  I am also unable to be satisfied on the balance of probabilities that Mr Cory was of diminished capacity at the time of the commission of the alleged offence of murder.

1. I find therefore that Mr Cory was not of unsound mind, or of diminished responsibility at the time of the alleged offence of murder.

ORDERS:

The defendant was not of unsound mind as described in the Schedule of the Mental Health Act 2000 (Qld) at the time of the alleged offences;1.          

That at the time of the alleged offence of murder the defendant was not of diminished responsibility;2.          

The defendant is fit for trial; and3.          

The proceedings against the defendant are to continue according to law.4.