Re Erasmus
[2011] QMHC 18
•7 October 2011
MENTAL HEALTH COURT
CITATION:
Re Erasmus [2011] QMHC 18
PARTIES:
REFERENCE BY LEGAL AID QUEENSLAND IN RESPECT OF GAVIN QUENTIN ERASMUS
PROCEEDING NO:
0067/11
DELIVERED ON:
7 October 2011
DELIVERED AT:
Brisbane
HEARING DATE:
28 September 2011
JUDGE:
Ann Lyons J
ASSISTING PSYCHIATRISTS:
Dr J M Lawrence
Dr A S DavisonFINDINGS AND ORDERS:
1. That at the time of the alleged offences on 15 December 2009, 8 July 2010 and 27 July 2010 the subject of the reference the defendant was suffering from unsoundness of mind as described in the Schedule to the Mental Health Act 2000 (Qld);
2. That the defendant be detained, pursuant to a forensic order, to The Park High Security Program Authorised Mental Health Service.
3. That Limited Community Treatment is not approved.
4. That correctional services officers take Mr Erasmus to The Park Authorised Mental Health Service pursuant to s 292 of the Mental Health Act 2000 (Qld).
CATCHWORDS:
MENTAL HEALTH – DECLARATION OR FINDING OF MENTAL ILLNESS OR CAPACITY – where defendant charged with five offences namely breaching a probation order, breaching a community service order, committing a public nuisance, possession of a knife and grievous bodily harm – where evidence the defendant suffers from schizophrenia – where the defendant gave different accounts of his drug use at the relevant times to the reporting psychiatrists – whether the defendant was intoxicated at the relevant times – whether the defendant was of unsound mind.
COUNSEL:
J Briggs for the defendant
J Tate for the Director of Mental Health
J Thomas for the Director of Public ProsecutionsSOLICITORS:
Legal Aid Queensland for the defendant
Crown Law for the Director of Mental Health
Director of Public Prosecutions (Qld)
ANN LYONS J:
This is a reference by Legal Aid Queensland dated 21 March 2011. Mr Erasmus is charged with five offences. Two charges, namely breaching a probation order and a community service order are alleged to have been committed on 15 December 2009. There are two further offences which are alleged to have been committed on 8 July 2010, namely committing a public nuisance and possession of a knife. The fifth charge is a count of grievous bodily harm on 27 July 2010.
The public nuisance and possession of a knife charges on 8 July 2010 arise out of an incident one morning at the Mudgeeraba Caravan Park where Mr Erasmus has resided since early November 2009. It is alleged that Mr Erasmus slashed open a soft drink can that another man was holding with a kitchen knife.
The grievous bodily harm charges relate to an incident also at the Mudgeeraba Caravan Park when Mr Erasmus confronted a fellow resident about allegations that he had stolen property. The resident punched Mr Erasmus in the face and Mr Erasmus retaliated by stabbing him. The resident sustained several stab wounds to the chest and abdomen as well as a pneumothorax and fractured ribs. Mr Erasmus was apprehended walking down the road and admitted the stabbing to the police. The breach of a probation order and breach of a community service order is based on a court report by a corrective services officer in relation to a probation order and a community service order Mr Erasmus had been placed on in October 2009. The officer stated that Mr Erasmus had failed to report on four occasions without a reasonable excuse and had failed to comply with directions, particularly attendance at a general practitioner and a psychologist. He had also otherwise failed to comply with his community service order and had been convicted of a further offence.
The Reports of the psychiatrists
There are two reports, one from Dr Pamela van de Hoef dated 8 August 2011 and one from Dr Schramm dated 13 December 2010. Both psychiatrists also gave oral evidence at the hearing. During Dr Schramm’s evidence the police interview with Mr Erasmus which was recorded at 8.30pm on the evening of 27 July 2010 was played.
Dr Schramm
Dr Schramm prepared an extensive report. He also considered that the persistence of psychotic symptoms beyond a month after the cessation of substance abuse indicates that despite a high likelihood of Mr Erasmus’s being caused by his long and heavy use of cannabis he would probably not be classified as suffering from a persisting substance induced psychotic disorder but rather he would be considered to be suffering from schizophrenia.
Dr Schramm considered that whilst it would be difficult to make a diagnosis of personality disorder in a setting of such heavy substance abuse and psychotic symptoms he considers that a comment needed to be made about Mr Erasmus’s marked “antisocial behaviours and attitude which seem to occur independently of direct or indirect effects of psychosis”. In terms of the breach of the probation orders, Dr Schramm did not consider that even though he was psychotic this would have prevented him from understanding the requirements of the order. He notes that the probable disorganisation and lack of motivation as well as the chronic intoxication and psychosis contributed to his lack of ability to comply. Dr Schramm considered that he understood that he was breaching the order and that he did have capacity to comply with aspects of the order.
In relation to the grievous bodily harm charge however Dr Schramm considered that in the moments before the act occurred Mr Erasmus was operating in a state of psychosis so severe that he was deprived of the capacity to know that what he was doing was wrong. He considered that Mr Erasmus confronted the victim after hallucinated threats from him and with a clear delusional belief that the victim was about to blow up the caravan park. Dr Schramm considered he was so aroused that he had difficulty in controlling what he was doing.
In relation to the interview with police Dr Schramm offered the following analysis;
“...it strikes me that we're hearing from a man who has just stabbed someone, yet he seemed genuinely annoyed that the police would want to talk to him about that. He seems to be implying that he was perfectly justified in what he was doing and he even seems to be expecting that the police would just leave him alone and let him go. It's difficult because I didn't hear this before I interviewed him so I couldn't follow up and - to clarify just what he meant by certain things, but there are some hints there of psychotic processes: talking about the chainsaw and he seems to be making some reference that that was the reason why he went over there, because he'd heard the victim threaten him with a chainsaw during the day - I suspect that's a hallucination. He talks about all of the - the - I mean, he - he seems to be aware that he's in someway mentally unwell: he talks about being fried. He blames that on the Ritalin that he was given as a child, and I think he mentioned something similar to me, but he also talks about all of the other medications that they have been giving him, and given that at that stage he'd not been treated for any mental illness here in Australia I'm guess whether that might be a reference to delusional ideas, which I think he'd expressed to me, and certainly expressed to those prison mental health, that the people in the park were jabbing him with needles - it's only a guess. There are times there when he seems to be formally thought distorted.”
Dr Schramm considered that the presence of psychotic symptoms persisting for some months indicates that the psychotic symptoms do not occur only when intoxicated. He considered that in essence the psychosis had a life of its own.
Dr Schramm also noted the recent update report of Dr Wolfenden and considered that “all three of us are at least in agreement that Mr Erasmus seems to suffer from a serious psychotic disorder, which persists even in the context of abstinence.”
However Dr Schramm considered that the issue of substance use was a difficult issue in this case due to the lack of objective evidence and the fact Mr Erasmus told him he had started smoking cannabis at about 3 or 4 in the afternoon but that he told Dr van de Hoef he had not had any drugs on the day. He also noted that whilst there was a urine test which was positive for cannabis and benzodiazepam that doesn’t indicate that Mr Erasmus necessarily had anything on the day. Dr Schramm agreed with Mr Tate in this regard as follows;
“So, no objective evidence about the extent of any cannabis use, although what we can say from the UDS taken in the prison is that, at some stage over the two week period, he'd smoked cannabis sufficient for the metabolites to show up in the prison UDS.---That’s the only thing we can say for sure, yes.”
Dr Schramm stated that whilst Mr Erasmus doesn't need to have an intoxicating substance in his system for him to have psychotic symptoms he stated that while Mr Erasmus was certainly psychotic beforehand and afterwards he could not say “with any degree of certainty that he would have been so deprived without that acute intoxication." However Dr Schramm indicated that his view was based on Mr Erasmus’s report to him of what he had taken on the day and there was no certainty it was accurate particularly given he said to him he had taken 20 or 30 cones that afternoon. Dr Schramm stated that essentially he and Dr van de Hoef agreed but he was told by Mr Erasmus that he had used cannabis that afternoon and therefore he cannot be completely certain that intoxication with cannabis did not play a part.
Dr Schramm clarified his view as follows;
“So, if I can just make sure that I understand that, so the concern that you have is whether you're satisfied on the balance of probabilities that the illness alone was sufficient?‑‑ No, on balance of probabilities, if that's the test, the illness alone was - was probably sufficient but when - if you're asking me did intoxication contribute, I think that it would have had to have contributed if he had consumed 20 or 30 cones within - within an hour but I that it's probably more likely than not that, even without that intoxicant, he would have been unwell enough‑‑‑‑‑
All right?‑‑ ‑‑‑‑‑to be deprived.”
Dr Schramm stated that he considered that his state of mind was such that it was in itself sufficient to deprive him of capacity his concern was that if he was intoxicated then “I think there was a state of mind that, in itself, was enough but if it's meant to include what was the total state of mind that we're dealing with in that moment, then that total state of mind is going to include intoxication and that intoxication is going to have an effect.”[1]
[1]Transcript Day 1-13 ll 53-57.
He continued[2];
“ ...there was a bushfire burning, and the bushfire was enough to burn the grass to deprive a capacity, to burn the house to deprive a capacity, but the - intoxication is someone coming along and throwing more petrol, so without that petrol the house would've still burnt down. It's just that the petrol has now contributed to it. So when you look at the total fire part of that total fire was petrol, but if the petrol wasn't on there I think probably more likely than not the house would've burnt down anyway.”
[2]Transcript Day1-15 ll 7-15.
In terms of the capacities Dr Schramm said[3];
“So - yeah, so I think that there's no doubt that in those moments he was deprived of the capacity to know that what he was doing was wrong. I believe that he felt completely justified in what he was doing, probably by a combination of a perceived threat, which was probably driven by hallucinations, if not misinterpreting something that's gone on, and also probably a delusional idea that not only was the victim a threat towards Mr Erasmus, but also a threat to the caravan park. But probably even on top of that, simply just that functioning in such a disturbed state of mind that he's not going to be able to weigh and reason with any kind of composure. So I think that's a done deal. The capacity about control, I can't say for certain that he would've been deprived of that.”
[3]Transcript Day 1-15 ll 22-3.2.
It is clear that Mr Erasmus is not an accurate historian. Dr Schramm noted that this was caused by a number of factors;
“‑‑ I think there are probably lots of reasons. I think one reason is that he remains psychotic. I think another is that he is guarded and I think sometimes, as I think will be demonstrated in the - when we get to hear the interview with police - he simply doesn't - is not particularly interested in letting other people know what's going on.”
Dr Schramm also agreed with Mr Briggs that Mr Erasmus told him that the feelings he had that others were 'out to get him' were present most days but not pervasively so and that when he was acutely intoxicated he told him that he was not concerned for his safety at all. In this regard Dr Schramm indicated that cannabis might in fact have had a calming effect on Mr Erasmus;
“‑‑ Well, yes, that's - that's right. […] and that's got some kind of face validity to it, that when he's acutely intoxicated the cares might leave him for a time being with the - you know, if the euphoric effect of the drug or the amnesic effect or the general sedating effect is overwhelming any psychotic symptoms that are appearing at the time. A lot of people with psychosis will tell me that they feel calmer and better when they are intoxicated on psychogenic substances such as cannabis. So, on the one hand the use of the psychogenic substance, that is a substance that can precipitate psychotic symptoms, can make psychotic symptoms worse either during acute intoxication or in the time after, but at the same time - and I suppose somewhat paradoxically - it can make people less distressed and less concerned and maybe they're forgetting about their particular psychotic symptoms at that time.”
Dr van de Hoef
Dr van de Hoef prepared a report dated 8 August 2011 and noted that there was no dispute of facts. She noted that Mr Erasmus told her he had probably smoked cannabis within a day or two of the grievous bodily harm but could not precisely remember whether that was the case. He said that he was not under the influence of any other drugs at the time. However, Dr van de Hoef noted that the prison records indicate that when he arrived at Arthur Gorrie Correctional Centre (AGCC) he was in an anticholinergic delirium. Dr van de Hoef noted that this was probably caused by an ingestion of an hallucinogenic flower (Datura) and benzhexol tablets in the preceding 24 hours as well as having opiates and cannabis daily. Dr van de Hoef stated that a urine drug screen performed on 10 August 2010 was positive for benzodiazepine and cannabis but negative for amphetamine and opiates.
Dr van de Hoef reviewed Mr Erasmus’s history and in particular his childhood history of attention deficit hyperactive disorder. She also outlined his prison history and in particular his psychotic episodes whilst in AGCC. Dr van de Hoef noted that whilst in AGCC after he was arrested in July 2010 he remained floridly psychotic and was noted to be thought disordered at times as well as irritable, agitated and intermittently reporting and responding to auditory and visual hallucinations. He also reported bizarre somatic delusions. Dr van de Hoef stated that he also had persecutory delusions about staff at the AGCC and had repeated recommendations for assessments completed. He was also listed for a bed at High Secure Unit at The Park in view of the severity of his illness and his risk to others and himself.
Dr van de Hoef stated that it was not until a month after his arrest, on 31 August 2010, that he was transferred to the medical centre. He was relatively settled until a court appearance in September 2010 when he became highly agitated, irritable and was reported as experiencing suicidal ideation as well as visual hallucinations. This continued with notes indicating that in December 2010 he told staff of continuing suicidal ideation and command auditory hallucinations. It would appear that by late February 2011 his formal thought disorder and disturbance were largely resolved. However Dr Wolfenden noted continued hallucinations and paranoia despite compliance with a high dose of Olanzapine. He was also noted to be displaying juvenile and childish behaviour in prison.
Dr van de Hoef noted that Dr Aboud reviewed Mr Erasmus on 21 April 2011 and he considered that he had chronic obsessional homicidal thoughts from childhood related to personality dysfunction. He also considered that the quasi psychotic phenomena were the dominant presentation. He considered that Mr Erasmus had presented with an array of symptoms that supported a diagnosis of schizophrenia or schizo affective disorder that had been precipitated by substance abuse, a variety of psycho social stressors and that non compliance with medication could, and may be already had, precipitated frank psychotic symptoms.
Dr van de Hoef considers that Mr Erasmus suffers from a state of mental disease, namely a severe psychotic disorder most likely schizophrenia though a drug induced psychotic disorder would be a reasonable differential diagnosis. She states that this illness had its onset sometime after his release from prison in 2009. She considered those symptoms were active on his moving into the caravan park and that they persisted for at least six months and with some possible residual symptoms lasting even longer. She considered that his symptoms consisted of formal thought disorder, persecutory and somatic delusions, auditory and visual hallucinations, pressure of speech and a marked affective component – mainly striking manic symptoms such as irritability and elevated mood.
Dr van de Hoef noted that his illness had been difficult to diagnose probably because of his clear antisocial personality traits and substance abuse as well as a history which has been unreliable. She stated that on reception into the prison his diagnosis was complicated by delirium probably due to an abuse of an anticholinergic and a botanical hallucinogen although she considered that withdrawal from opiates, cannabis, benzodiazepine and alcohol were also possible contributors. She states his illness has been difficult to treat because of his partial insight and some non compliance.
Dr van de Hoef stated that it may be that at around the time of all of the alleged offences Mr Erasmus may have been intoxicated with cannabis, opiates or alcohol and possibly with Datura and Benzhexol although the evidence of this is not clear. However, irrespective of whether those substances were present Dr van de Hoef considers that his psychotic disorder was severe and caused such disorganisation of his thoughts and such powerful hallucinatory experiences of a persecutory nature that it would account for all of his offences even in the absence of intoxication.
Dr van de Hoef stated that in her view his illness caused him to believe that his neighbours at the caravan park were “talking about him, conspiring against him and he had to defend himself against that by attacking them”. Dr van de Hoef considered that his illness rendered him unable to comply with even the most reasonable conditions of the community orders he was subject to and that his schizophreniform illness deprived him of the capacity to know he ought not do the act in the case of each offence.
Dr van de Hoef considers that a forensic order is clearly required and that Mr Erasmus would benefit from continued antipsychotic and mood stabilising medication as well as psychological support, therapy and psychiatric review. He would also benefit from alcohol and drug counselling and she also notes his long history of suicidal ideation and his very disturbed childhood. Dr van de Hoef considers that the treatment would be best delivered in a secure setting.
Dr Wolfenden in an update report dated 16 September 2011 stated that Mr Erasmus’s auditory hallucinations pre-dated his incarceration by several months. She noted that during that period he was also experiencing periods of elevated mood lasting several days with an accompanying decreased need for sleep and grandiose and religious delusions. Dr Wolfenden stated that Mr Erasmus has continued to complain of chronic intrusive ego-syntonic thoughts about murdering people he perceives have wronged him. She continued that “He reported experiencing ongoing “voices and visions” of a violent nature “they tell me to do things, cause fights, stab, kill...I’ve always had these sick little thoughts.”
Dr Wolfenden considered a forensic order was required and that Mr Erasmus also thought he required a forensic order. She stated;
“Whilst his psychotic and mood symptoms are currently reasonably well controlled on a combination of psychotropic medications and within the relatively controlled environment of custody, he continues to present as anxious with distressing quasi-psychotic symptoms arising ion the context of stress.”
The advice of the assisting psychiatrists
Dr Lawrence stated[4] that the accounts of people in psychotic frames of mind in relation to their consumption of substances is not always reliable and that it was evident that Mr Erasmus gave quite significantly different accounts of his intake of various substances over various times to different people. The accounts ranged from consumption of 20 to 30, to 40 to 50 cones of cannabis within an hour or so of these acts, to nothing at all to the police, and a whole range of things ever since. Dr Lawrence noted that there is no objective evidence of intoxication occurring at the time.
[4]Transcript Day 1 p48-50.
Dr Lawrence also stated that there is no clear evidence of intoxication in the record of interview but there was evidence of “very significant disturbance of thought processes”. Dr Lawrence also emphasised that there is a difference between poly-substance use, poly-substance abuse and the presence of intoxication, which is a different thing all together. In particular Dr Lawrence stated that recent cannabis use should not be confused with intoxication whereas recent consumption of alcohol or amphetamines might lead to a state of intoxication.
Dr Lawrence’s view was that the evidence of the record of interview “gives clear evidence of the presence of delusional beliefs, auditory hallucinations happening on the day, the disorganisation, and a state of arousal”
Dr Lawrence continued
“- I would see that as much more likely to give confirmatory evidence of a psychotic condition operating at that time with little evidence of the intoxication. So I would recommend that you accept the advice of, and the opinions of both Dr Schramm and Dr Van de Hoef - that at the time of the commission of the - this index offence of the GBH, Mr Erasmus was suffering from a psychotic condition; I would think most likely paranoid schizophrenia; and I believe that as a result of that illness, the evidence is that he was deprived of the capacity to know that he ought not do the act at that time.
There is no clear evidence of actual intoxication with the substance being present at the time. It may have been. Nobody can exclude that, but both of the experts agreed that it was the psychotic phenomena which deprived Mr Erasmus of the capacity to know that he ought not do the act. The evidence in regards to the preliminary charges is, I think, less clear; but I think it is clear on - as to the offence of the grievous bodily harm.”
Dr Davision indicated that he agreed with Dr Lawrence’s views.
Was he suffering form a mental disease at the time?
There is no doubt that Mr Erasmus was psychotic, experiencing severe persecutory delusions and auditory hallucinations in the period after his release from prison. He was suffering from a mental illness namely schizophrenia or a schizoaffective disorder. I am satisfied that at the time of the commission of all of the offences that Mr Erasmus was suffering from the effects of this illness and was deprived of the capacity to know that what he was doing was wrong. As Dr Schramm noted he felt completely justified in what he was doing, probably by a combination of a perceived threat, which was probably driven by hallucinations, if not misinterpreting something that was occurring and also experiencing a delusional idea that not only was the victim a threat towards him but also a threat to the caravan park. Furthermore the evidence indicates that he was functioning in such a disturbed state of mind that he was not be able to weigh and reason with any kind of composure.
In my view Mr Erasmus’s mental state at the time is best described by Dr van de Hoef as follows;
“---Again, taking all the material into account, I concluded that he may have been intoxicated on the day or on the day of each of the alleged offences but the history that I think I got, piecing it all together, was that this man was actually unravelling from late the year before after his release from prison the previous time. I think he developed his psychotic illness somewhere after that. Subsequent to that became increasingly disorganised and scatty, became increasingly marginalised, couldn't keep up with his community order. It was a very hit and miss affair and then it was absolutely miss on all the conditions of that order, that he developed delusional ideas about probably a number of people in the caravan park where he was living.
...
That his self-care went off, that he was failing to feed himself. He may have been getting intoxicated from time to time with any number of the agents that have been mentioned in this Courtroom today but I think he experienced a significant and gradual decline into a psychotic illness that appears just at the time of his arrest on the GBH charge to be complicated by a delirium of some causation but once the delirium settled he had a very severe, easily-detectable psychotic illness which persisted for, at least, six months afterwards and may still be persisting to some extent given Dr Wolfenden's continuing conundrum about diagnostic issues, about whether it's quasi-psychotic symptoms they see from time to time now and that's after strenuous treatment in the prison setting with high doses of anti-psychotic and reasonable doses of anti-depressants. Based on all that I came to the conclusion that even if he had been intoxicated at the time of all the relevant offences that the illness was such that it was really the significant factor in explaining all of them.”
Accordingly I am satisfied that not only was Mr Erasmus suffering from a mental illness at the time of the offences but that he was in fact deprived of the capacity to know that he ought not do the act. I consider that he was certainly deprived on 8 July 2010 and 27 July 2010. I also consider that on the balance of probabilities he was also deprived of the capacity to fully comply with his probation order given the extent of his impairment and the fact that he was chronically unwell after he was released from prison in late 2009.
The issue which needs to be determined however is whether he is precluded from a defence of unsoundness of mind due to intentional intoxication which contributed towards the deprivation of this capacity.
What role did intoxication play?
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.
In the present case the first issue is that there is no objective evidence that Mr Erasmus actually consumed any substances immediately before any of the alleged offences. The only objective evidence is that the Urine Drug Screen showed use at some stage of cannabis and benzodiazepine.
Whilst there are self reports of cannabis use Mr Erasmus is, as all doctors have indicated, simply unreliable in relation to this issue. Dr van de Hoef also considered that his history would have been scrambled by the events of ingesting whatever he ingested or whatever it was that caused the delirium. It may well be therefore that delirium is the basis of the different accounts at different times. In any event she considers that his memory of what exactly he was taking around that time has gone forever. Whilst efforts were made at the time to ascertain what occurred, there is no certainty about what in fact occurred.
Even if there was some consumption there is no actual evidence of intoxication. I note Dr Lawrence’s advice that use, even immediately beforehand, of cannabis does not necessarily equate to intoxication.
Furthermore even if the intoxication was present there is no evidence that it actually led to the deprivation. As Dr Schramm conceded it may have calmed him down rather than deprived him of the capacity to know he ought not do the act. Dr van de Hoef also agreed that intoxication even if present would not necessarily contribute to the deprivation of a capacity;[5]
“No. My opinion, however, is that it's likely that intoxication altered his mental state. I mean, what's the point of getting intoxicated otherwise? This is why people get drunk and use drugs. They want an alteration in their mental state. They're seeking it. I'm not sure, however, that it played a role in depriving him of that capacity. It's my view that his illness deprived him of the capacity probably for weeks and months at a time. The intoxication would have altered his mental state but I'm not sure that it fed into the deprivation of the capacity you're talking about. I think that can be two different things. He might have been euphoric, he might have been calmer, he might have been sleepier, he might have been hungrier, he might have been happier because he was intoxicated. He might have been more paranoid and more deluded, yes. I don't know but I think he was deprived by his underlying illness of the relevant capacity before, during and after any intoxication.”
[5]Transcript Day 1-36 ll 40-56.
Accordingly I am not satisfied that Mr Erasmus was in fact intoxicated at the time the offences were committed and in any event even if he was intoxicated I am not satisfied that such intoxication would in fact have played a part in the actual deprivation of the capacity to know he ought not do the act.
Accordingly I am satisfied that Mr Erasmus was of unsound mind at the time of the commission of all of the offences.
Given the seriousness of the offences on 8 July and 27 July 2010 and Mr Erasmus’s continuing psychotic symptoms I consider that a forensic order is required. Limited community treatment should not be considered at this stage.
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