Re DFB

[2005] QMHC 40

MENTAL HEALTH COURT

CITATION:

Re DFB [2005] QMHC 40

PARTIES:

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

PROCEEDING:

0180 of 2003

DELIVERED ON:

17 February 2005

HEARD AT:

Townsville

DELIVERED AT:

Brisbane

HEARING DATE:

8 February 2005

JUDGE:

Wilson J

ASSISTING PSYCHIATRISTS:

Dr J M Lawrence

D J F Wood

FINDINGS:

ORDERS:

That the defendant was not of unsound mind at the time of any of the alleged offences.   [1]      

In relation to the charge of murder, that the defendant was in such a state of abnormality of mind, caused by mental illness, as substantially to impair his capacity to know he ought not do the act. Thus he was of diminished responsibility.   [2]      

That the defendant is fit for trial   [3]      

hat proceedings against the defendant for manslaughter be continued according to law.T1)   

That proceedings against the defendant for rape, stupefying with intent, and entering a dwelling and stealing be continued according to law.2)   

CATCHWORDS:

MENTAL HEALTH – FINDING OR DECLARATION OF MENTAL ILLNESS OR INCAPACITY – where the defendant is charged with murder, rape, stupefying with intent and entering a dwelling and stealing – where the defendant has a history of heavy marihuana use – where the defendant has previously been diagnosed with psychosis and antisocial personality disorder – where the defendant believed he had been chosen to break a “paedophile racket” - where the defendant believed the victim to be a paedophile - where there are differing expert psychiatric opinions on the defendant’s mental capacity at the time of the alleged offences

COUNSEL:

C L Morgan for the defendant
J Tate for the Director of Mental Health
D R MacKenzie 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:  DFB has been charged with murder, rape, stupefying with intent and entering a dwelling and stealing, all allegedly committed on 19 October 2001. There is a co-accused AMB.  The matter of DFB (the defendant)’s mental condition in relation to the alleged offences was referred to this Court by his legal representative in September 2003. The reference was heard in Townsville on 8 February 2005.

Background

1. The defendant was born on 30 January 1969. He had a highly prejudicial and disruptive childhood, being neglected and abused. He had attention deficit disorder and conduct disorder. He was forced to leave school on more than one occasion. He left home at a young age and lived on the streets. From his early teens he used cannabis heavily. He started to use speed at about the age of seventeen. He occasionally drank alcohol in a binge pattern.

1. The defendant has a lengthy criminal history beginning in about 1984 in a Children’s Court in New South Wales, of offences of dishonesty, violence, and illicit drugs, and spent time in prison first as a juvenile and subsequently (for about 5 years in all) as an adult.  He is the natural father of two children aged about 11 and 5 and stepfather to another aged about 14. He had an unstable relationship with the mother of the older 2 children for about 10 years until 1999; it ended when she was murdered, probably as the result of a drug dispute. Then he formed another relationship, but it did not last.

1. In late 2000 the defendant brought his 2 children to Queensland. He was picked up by police after allegedly hitting the children and twisting their ears; he was taken to the Princess Alexandra Hospital and transferred to St Vincent’s Hospital at Robina. The next day he was discharged with a diagnosis of anti-social personality disorder. On release, he took the children to Brisbane; again he came to the attention of police and was admitted to hospital (Princess Alexandra Hospital from which he was transferred to Robina) for a few days. The available hospital notes mention ideas of reference and auditory hallucinations, but the discharge summary indicates a conclusion that there was no mental disorder.

1. The children were taken into foster care, and the defendant hitchhiked to north Queensland, arriving shortly before Christmas 2000. In February 2001 he was referred to the Cairns Integrated Mental Health Program by the Department of Families. He had reportedly been abusive and violent after discussing his children’s foster care and claimed to be God. He denied any use of speed, and said he had not used alcohol or marihuana for a fortnight. He denied all psychotic symptoms. He was considered to have a mild psychosis, possibly schizophrenic or possibly drug induced. A follow up note on 22 June 2001 indicates that he was much improved, with no psychotic symptoms, but anxious about a pending court case. He declined anti-psychotic medication.

1. From about 1998 the defendant had what Dr Beech (one of the examining psychiatrists) described as “an obsessional over-valued anxiety” about his own safety and that of his children. He believed he was under surveillance and was being poisoned, and that his children and step child had been sexually abused. In about 1999 or 2000 he concluded that it all made sense: there was a paedophile racket; he had cracked the paedophiles’ code, and he was able to see them making various signals about him; and he had been placed under surveillance. Through 2000 and 2001 his delusional system became more grandiose: he believed that because of his knowledge he had been chosen by forces of good; that there were signs of advanced technology which indicated that Satan, God or perhaps aliens were involved. From June or July 2001 through until the events of 19 October 2001 he had a fully developed grandiose paranoid psychosis.

The Offences

1. The victim of the offences was David Philpot, also known as Swami Salami or sometimes Smaran Philpot. He was a drug dealer, and also rumoured to be a paedophile.

1. The defendant was continuing to use cannabis. He told Dr Beech that he consumed between 10 and 50 cones per day. Philpot supplied him with cannabis. He was convinced that Philpot was a paedophile, and also that he cheated him on drug deals, including contaminating the cannabis with fly spray.

1. The defendant resolved to “teach the man a lesson”. On the day of the alleged offences he developed a plan to confront Philpot, to warn him off, teach him a lesson, and “give him a taste of their own medicine … that is the drugging of kids.” He asked his friends DF and AMB to accompany him, and finally AMB agreed. The plan was to go around to Philpot’s unit, “flog” him and inject him with Normison (temazepam). They planned what they would do, even to the point of being supplied with surgical gloves by DF so that they would not leave finger prints (although in the event the defendant did not use the gloves). The defendant has since maintained that he did not intend to kill Philpot, but just to teach him a lesson and warn him off.

1. That day the defendant had consumed about 2 grams of cannabis, and 2 or 3 bourbon and coke drinks.

1. Philpot was not home when they arrived. They waited round the corner until he returned. The defendant walked up to the door and knocked. He went into the unit and asked for a joint. When Philpot produced cannabis, the defendant asked him to smell it and, as he did, the defendant hit him 2 or 3 times and knocked him in the stomach. AMB then entered the unit and started walking around damaging property and looking for cannabis. The defendant stood on Philpot’s arm and injected him with the Normison that he had already drawn up in a syringe for the purpose. He then tied up Philpot’s legs and arms. The defendant noticed a plastic spider on the wall; thinking this was the paedophile mascot, he inserted it into Philpot’s rectum. He anticipated that when Philpot eventually untied himself and went to the toilet, he would pass the spider and “spin out”. Then the defendant went through the unit looking for evidence of paedophile surveillance. He found a number of sensor lights which he believed suggested that video surveillance was being used and that child pornographic videos were being made. They took those, together with Philpot’s laptop, his store of marihuana and various other items, and left him. Philpot died, the likely cause of death being postural asphyxiation compounded by recent blunt trauma to the head.

1. The defendant and AMB returned to town and told their friends what they had done. The defendant moved out of the place he had been living, moving first to a motel where he spent 2 nights and then to a caravan park. When he was watching television, he learnt that Philpot had died. On 22 October there was a meeting between DF, AMB and the defendant in which the defendant instructed AMB “to burn the gear,” and said, “This is between us. We will take this to our grave.”

1. The defendant was interviewed by police and arrested on 24 October 2001. He was received into the Lotus Glen Correctional Centre on 30 October 2001, and has been held in custody on remand since then.

The Issues

1. This Court’s task is to determine whether the defendant was of unsound mind at the time of the alleged offences; if it finds he was not of unsound mind, then, in relation to the charge of murder, it must determine whether he was of diminished responsibility.

1. “Unsound mind” is defined in schedule 2 to the Mental Health Act 2000 in the following way –

“‘unsound mind’ means 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.”

Section 27 of the Criminal Code provides –

“27 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.

(2) A person whose mind, at the time of the person's doing or omitting to do an act, is affected by delusions on some specific matter or matters, but who is not otherwise entitled to the benefit of subsection (1), is criminally responsible for the act or omission to the same extent as if the real state of things had been such as the person was induced by the delusions to believe to exist.”

“Diminished responsibility” is defined in schedule 2 to the Mental Health Act as –

“the state of abnormality of mind described in the Criminal Code, section 304A”.

Section 304A of the Criminal Code provides –

“304A  Diminished responsibility

(1) When a person who unlawfully kills another under circumstances which, but for the provisions of this section, would constitute murder, is at the time of doing the act or making the omission which causes death in such a state of abnormality of mind (whether arising from a condition of arrested or retarded development of mind or inherent causes or induced by disease or injury) as substantially to impair the person's capacity to understand what the person is doing, or the person's capacity to control the person's actions, or the person's capacity to know that the person ought not to do the act or make the omission, the person is guilty of manslaughter only.

(2) On a charge of murder, it shall be for the defence to prove that the person charged is by virtue of this section liable to be convicted of manslaughter only.

(3) When 2 or more persons unlawfully kill another, the fact that 1 of such persons is by virtue of this section guilty of manslaughter only shall not affect the question whether the unlawful killing amounted to murder in the case of any other such person or persons.”

Thus the deprivation of one of the cognitive capacities (the capacity to understand what one is doing and the capacity to know that what one is doing is wrong) or of the volitional capacity (the capacity to control one’s actions) caused by a disease of the mind is the touchstone of unsoundness of mind. And the substantial impairment of one of those capacities caused by abnormality of mind is the touchstone of diminished responsibility.

Psychiatric opinions

1. The prison medical records were available to the Court, along with written reports and oral evidence of 4 psychiatrists – Dr James Woolridge, Dr Peter Fama, Dr Michael Beech and Dr William Kingswell.

1. The defendant did not display any alarming behaviour on his reception into the prison. Sometime after his reception there, probably between 6 and 11 November 2001, he produced some writings which revealed very disordered thinking – paranoia, railroad thinking, clang associations, etc.

1. Dr Woolridge was a visiting psychiatrist at the prison. On 11 November the defendant was given an opportunity to see Dr Woolridge, but refused. Dr Woolridge interviewed the defendant briefly on 20 November 2001, but he found him guarded, suspicious and hostile. He refused to discuss the writings. Dr Woolridge noted that no evidence of psychosis emerged, but that the writings suggested the possibility of psychotic illness. Dr Fama has since described the writings as typical of process schizophrenia, and as indicating a high degree of psychotic disturbance that would not have arisen overnight but would have been present for at least a month and probably 6 months or more.

1. Dr Kingswell interviewed the defendant in the Cairns watch house in May 2003. The defendant had not received any treatment for mental illness while in prison. He said his health had improved. He denied any suicidal ideas or any persistent troubling preoccupation with respect to paedophiles.  He continued to believe he might be chosen for something. He denied hearing voices, and no bizarre concerns such as thought withdrawal, though insertion or thought broadcasting could be elicited. Dr Kingswell diagnosed (1) antisocial personality disorder, (2) poly substance dependence in enforced remission, and (3) amphetamine induced psychosis in enforced remission. By the time of the hearing, the defendant had had a relapse of psychotic symptoms, and Dr Kingswell had changed his primary diagnosis to one of schizophrenia. However, he stood by his original opinion that at the time of the alleged offences, the defendant was not deprived of any of the relevant capacities. His capacity to know that he ought not engage in the conduct was impaired, but not totally absent. Moreover, chronic intoxication with cannabis was a substantial contributor to his state of mind at the time.

1. Dr Fama and Dr Beech examined the defendant (on separate occasions) in the Arthur Gorrie Correctional Centre in November 2003. He had been transferred there for the purposes of the assessments. They both considered that at the time of the alleged offences the defendant was suffering from paranoid schizophrenia, and that he was deprived by that illness of the capacity to know that he ought not do the acts.

1. When Dr Fama interviewed the defendant, he found signs of ongoing psychosis. Although at a casual social level he displayed no overt signs of mental illness, as the interview progressed he became more intense and preoccupied with his inner worries and concerns. There was railroad thinking in his account of his experiences leading up to the offences. Taking account of statements of friends such as DF, AT and PO, the defendant’s social and psychiatric history, the circumstances of the offences, the defendant’s own account of his thought processes at the time, and the writings, Dr Fama concluded that he was suffering from paranoid schizophrenia (even if use of amphetamines might have initiated or aggravated the psychosis). In oral evidence he acknowledged that the defendant also had a personality disorder. He considered that he was deprived of the capacity to know he ought not do the acts by the mental illness, and that that was so despite any intoxication (chronic or acute) with cannabis or alcohol.

1. Dr Beech was of similar opinion.

1. In late November 2004 Dr Simon Burton, psychiatrist, examined the defendant, and he was placed on anti-psychotic medication.

1. Dr Woolridge examined the defendant in the Lotus Glen Correctional Centre 4 times during 2004, before interviewing him twice in November 2004 specifically to report to this Court.  After being on the medication for about 3 months, he appeared pleasant, reasonable, rational and non-hostile. Subsequently he declined to continue the medication, saying he felt better without it. He remained well until December 2004, when psychotic symptoms recurred. Dr Woolridge shared the opinions of the other examiners that the defendant was psychotic at the time of the alleged offences. Although he originally considered it to be a drug induced psychosis, the recurrence of symptoms in December 2004 (after 9 months off medication) led him to alter his diagnosis to schizophrenia. Like Dr Kingswell, Dr Woolridge considered that there was not a deprivation of any of the relevant capacities, but only an impairment of the capacity to know he ought not do the acts. As I understood his evidence, he considered that there was a “significant” impairment of that capacity as a result of the mental illness, even though chronic intoxication would have contributed significantly to his state of mind at the time.

1. Thus, the examiners all agreed that the defendant was suffering from a psychotic illness at the time of the alleged offences, and that it was a schizophrenic illness. They all agreed that his capacity to know he ought not do the acts was at least impaired (and I interpret their views as substantially impaired) by that illness. They disagreed on whether the defendant was deprived of that capacity. And, as I understood their evidence, they all agreed that the illness alone caused substantial impairment of that capacity, even if chronic intoxication with cannabis contributed to the defendant’s mental state at the time.

Preference for evidence of Drs Woolridge and Kingswell

1. I prefer the evidence of Drs Woolridge and Kingswell to that of Drs Fama and Beech on the issue of whether there was a deprivation of capacity, or merely an impairment. The statements of DF, AT and PO about the defendant’s preoccupations with paedophiles and his being the chosen one were carefully considered by them all. I accept that these were of a psychotic intensity, even if (as rumoured) Philpot was a paedophile. It seems clear that the defendant had had these preoccupations for some time, and in this regard the statements do not deal specifically with his behaviour on the day of the offences. There is evidence of quite detailed planning, and of attempts at concealment after the offences. Philpot was a drug dealer who supplied the defendant, and it is not suggested that it was only the defendant who felt cheated by him. Pay back or revenge and stealing were significant aspects of the defendant’s thinking at the time. There is no evidence of psychotic thinking in his exchanges with police (albeit 5 days after the offences), or initially on his reception at the Lotus Glen Correctional Centre. I am persuaded on the balance of probabilities that the defendant retained some capacity to know that what he was doing was wrong. 

Intoxication

1. The defendant said that he had used only 2 cones of marihuana on the day of the offences. There is no evidence to the contrary, and so no basis for concluding that he was acutely intoxicated with cannabis at the time.

1. However, he told Dr Beech that in the period leading up to the offences he had been using 10 – 50 cones of marihuana per day. Having regard to the long half life of THC (the drug in marihuana), that would have caused a chronic intoxication. I do not accept that such chronic intoxication would not have had some effect on his overall mental state at the time. However, the expert evidence was that his capacity to know that what he was doing was wrong was substantially impaired by his mental illness, and that that would have been so without the chronic intoxication. In other words, the intoxication was, in the circumstances of this case, merely an incidental factor clinically.

1. There is no basis on which to conclude that the defendant was intoxicated with alcohol.

Findings

1. Accordingly I find that the defendant was not of unsound mind at the time of any of the alleged offences.

1. In relation to the charge of murder, I find that the defendant was in such a state of abnormality of mind, caused by mental illness, as substantially to impair his capacity to know he ought not do the act. Thus I find that he was of diminished responsibility.

1. On the evidence the defendant is fit for trial.

Orders

1. I order that proceedings against the defendant for manslaughter be continued according to law.

1. I order that proceedings against the defendant for rape, stupefying with intent, and entering a dwelling and stealing be continued according to law.