Re Frost

[2010] QMHC 43

MENTAL HEALTH COURT

CITATION:

Re Frost [2010] QMHC 43

PARTIES:

REFERENCE BY THE DIRECTOR OF MENTAL HEALTH, THE DIRECTOR OF PUBLIC PROSECUTIONS AND THE PATIENT’S LEGAL RESPRESENTATIVES IN RESPECT OF DAVID FROST

PROCEEDING NO:

0013 of 2007

DELIVERED ON:

25 May 2010

DELIVERED AT:

Brisbane

HEARING DATE:

29, 30 April 2010

JUDGE:

Ann Lyons J

ASSISTING PSYCHIATRISTS:

Dr  E N McVie
Dr Varghese

FINDINGS AND ORDERS:

1. In relation to the count of grievous bodily harm on 13 June 2005 the charge should continue according to law.

2.   In relation to the count of possessing a utensil or a pipe on 24 September 2006 the charge should continue according to law.

3.   In relation to the count of driving under the influence of alcohol on 5 August 2007 the charge should continue according to law.

4.   In relation to the two counts of possessing a dangerous drug and one count of taking alcohol from licensed premises on 18 August 2007 the charges should continue according to law.

5.   In relation to the counts of possession of dangerous drugs and failure to take reasonable precautions with respect to a needle and syringe on 22 November 2008 the charges should continue according to law

6. In relation to the offences of going armed as to cause fear, serious assault and obstructing police on 23 September 2006, the defendant was of unsound mind as defined in Schedule 2 of the Mental Health Act 2000 (Qld)

7. In relation to the offences of assault occasioning bodily harm and two serious assaults on 20 October 2006, the defendant was of unsound mind as defined in Schedule 2 of the Mental Health Act 2000 (Qld)

8.   In relation to the offences of attempted murder and assault occasioning bodily harm on 22 November 2008, the defendant was of unsound mind as defined in Schedule 2 of the Mental Health Act 2000 (Qld)

9.   The defendant be detained as a forensic patient in the Gladstone Mental Health Service as per the conditions outlined in Dr Edgar’s report of 21 April 2010.

10.  Limited Community Treatment is approved in the terms outlined in Dr Edgar’s report of 21 April 2010.

CATCHWORDS:

MENTAL HEALTH – DECLARATION OR FINDING OF MENTAL ILLNESS OR INCAPACITY – where defendant charged with 16 offences – where a dispute of facts arises in relation to 8 charges – whether the defendant was of unsound mind as defined in Schedule 2 of the Mental Health Act 2000 (Qld) in relation to the other 8 offences at the relevant times

COUNSEL:

Mr J Briggs for the Defendant
Mr J Tate for the Director of Mental Health

Mr D Finch for the Director of Public Prosecutions (Qld)

SOLICITORS:

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

The Director of Public Prosecutions (Qld)

ANN LYONS J:

1. The defendant David Frost is charged with 16 offences including 11 indictable offences and five simple offences which occurred in five separate periods from June 2005 until November 2008.  The Director of Mental Health has referred two offences of assault occasioning bodily harm, an offence of possessing a dangerous drug, three offences of serious assault, as well as the offences of going armed so as to cause fear, obstructing police, possessing a utensil or pipe, grievous bodily harm and failing to take reasonable care and precaution with respect to a needle and syringe.  The Director of Public Prosecutions has referred one charge of driving a motor vehicle under the influence of alcohol, two charges of possessing a dangerous drug and one charge of taking liquor from licensed. A charge of attempted murder has been referred by both the defendant’s counsel and the Director of Mental Health.

The factual background to the offences

(i) Grievous bodily harm – 13 June 2005

1. The first offence is an offence of grievous bodily harm, which occurred on 13 June 2005.  This offence occurred when Mr Frost was running a nightclub in Rockhampton and there was a fight at the nightclub with security guards and 10 rugby league players who were refused entry.  Mr Frost, as the owner of the nightclub, became involved and a patron was injured.  He disputes that he caused the injuries which included a broken eye socket.  Mr Frost indicates that at the time he was not manic or mentally unwell, but he probably had had a drink.

(ii) Going armed as to cause fear, serious assault, obstructing police – 23 September 2006 and possessing utensil or a pipe – 24 September 2006

1. The offences which occurred on 23 and 24 September 2006 include one count of serious assault, one count of going armed in public to cause fear and one count of obstructing police.  On the following day, there is a further charge of possession of a drug utensil. 

1. Mr Frost is alleged to have approached and threatened strangers with a kitchen knife, wielded branches at police who deployed spray, became more angry and did not comply with police direction apparently saying that he was going to “repel the evil”, challenged police to fight, and once restrained in an ambulance repeatedly kicked a QAS paramedic.  Various witness statements convey his state of mind at the time.  He told an elderly man that he was the devil and would be attacked.  One police officer described Mr Frost as irrational, delusional, displaying frequent bursts of anger, with thoughts jumping from one subject to the next, stating he was receiving messages, and yelling “You’re part of the conspiracy aren’t you.  You’re responsible for the deaths of all those people.”  Another officer stated that Mr Frost told her that he had taken “pot, speed and ice today.  I’ve got heaps of drugs on me.”  At one point Mr Frost apparently screamed “You’re taking me to Mount Archer to murder me”.  Another statement provides a description of Mr Frost’s paranoia, persecutory beliefs and grandiosity.

1. Police conducted a search of Mr Frost’s home the following day and found a methamphetamine pipe.  Mr Frost disputes that the pipe is his.  He says he did not have a pipe and he was not there at the time. 

(iii) Two counts of assault occasioning bodily harm, two serious assaults – 20 October 2006

1. The next series of offences occurred on 20 October 2006 and they include two serious assaults and an assault occasioning bodily harm.  Mr Frost is said to have assaulted a 16 year old male stranger in Gladstone by striking him in the face, kicking him on the ground and holding him around the neck.  A police officer witnessed Mr Frost shoving a photograph in the victim’s face and saying “Go to the light”.  He was observed to be aggressive, rambling in his speech and mentioned “God” and “the Devil”.  He said that his mood had been elevated and that he was not sleeping.  He had tried to obtain sedatives to get some sleep.  He considered he was being attacked by negative energy and was spraying aerosols to protect himself.    

(iv) The August 2007 Offences- Driving a motor vehicle under the influence of alcohol on 5 August 2007 – Two counts of possession of dangerous drugs and  taking liquor from premises on 18 August 2007

1. The next offence occurred on 5 August 2007 and involves a charge of driving under the influence of alcohol.  He was thought to have been driving in an erratic manner.  He admitted to having consumed an unknown amount of vodka.  His alcohol reading was found to be just above the legal limit.

1. The next offences occurred on 18 August 2007 and include two counts possession of a dangerous drug and taking liquor from premises.  Mr Frost is alleged to have taken alcohol, which he did not pay for, from the Bojangles Brasserie in Gladstone.  When police apprehended him they noted that his pupils were fixed and dilated, and his speech incoherent and confused.  Various tablets (suspected stimulants) and a white powder (methamphetamine) were found in his pockets.  He says he paid for the alcohol and has no idea how the drugs came to be in his pockets.

(v) Attempted murder, assault occasioning bodily harm, possession of dangerous drugs, failing to take care and precautions with respect to a needle and syringe – 22 November 2008

1. The last series of offences then occurred on 22 November 2008 and they included assault occasioning bodily harm, possession of a dangerous drug and attempted murder, as well as the simple offence of failing to take reasonable care of a needle and a syringe.

1. The evidence indicates that Mr Frost was relatively stable a few weeks prior to the alleged offences but several days before the offences his mother noted that he had destabilized and had elated mood and possible psychosis.  He was shouting abuse and had pressured speech.  On 19 November 2008 he believed he was being attacked by bikies.  He could not sleep the following night and became more elevated in mood.  He went to Gladstone Hospital on 21 November seeking assistance but was not admitted. 

1. Later that night his mother found him unconscious in his motel room with needle marks in his arm.  A vial of Testosterone, Ecstasy tablets and Viagra tablets were found in his room, in addition to a needle and syringe.  He was taken to hospital by the Queensland Ambulance Service (QAS).  Staff documented that he smelt of alcohol.  He was noted to be sexually inappropriate, disoriented and confused when taken to Gladstone Hospital.  He seemed to improve over subsequent hours, but was recorded as hallucinating by a Gladstone Hospital nurse at six in the morning on 22 November.  Significantly he returned a urine drug test that was negative for illicit drugs at 1.50 am on 22 November 2008.

1. He was sexually dis-inhibited and openly masturbating when transferred to Rockhampton Hospital Emergency Department on the afternoon of 22 November 2008. 

1. On arrival in Rockhampton he was admitted to the Mental Health Unit.  Whilst he initially appeared to be calm within an hour he assaulted a fellow patient without provocation after repeatedly shaking his hand and refusing to let go.  He then violently attacked a registered nurse who came to the patient’s aid.  He was placed in seclusion after the incident and was noted to repeatedly punch the seclusion room window.  A serum test on 23 November 2008 did not demonstrate raised testosterone (though did show a raised free testosterone).

1. He appeared to make a fairly rapid mental state recovery in subsequent days, but eight days following the offence he was documented as manifesting ongoing grandiosity.  During this time he was given psychotropic medication.  He also developed hyperpyrexia, rhabdomyolysis, acute renal failure and hypercalcaemia. 

1. On 1 December 2008 he declined to be interviewed by the police, suggesting they speak to his lawyer. 

The contentious counts

1. The defendant is charged with 16 offences over a three and a half year period.  Having examined the circumstances surrounding the offences as well as reports of the psychiatrists it is clear that the issue of unsoundness of mind only arises in relation to eight of those charges.  That is because the evidence clearly indicates that for the other eight charges there is either a dispute of facts in relation to the charge or there is simply no evidence that the defendant was of unsound mind at the time. 

1. I therefore agree with the submission of the Director of Mental Health that the question of unsoundness of mind only surrounds the eight offences of violence which occurred on 23 September 2006, 20 October 2006 and 22 November 2008.  The Director of Public Prosecutions concurs with that submission and the submission is not disputed by the legal representatives for the defendant. 

1. On the basis of the factual information set out in the brief of evidence as well as the reports of the psychiatrists including Drs Aboud, Kingswell, Todorovic and Chauhan I am satisfied that:

(i)         In relation to the count of grievous bodily harm on 13 June 2005 the defendant disputes the factual circumstances surrounding the offence.  That charge should continue according to law.

(ii)        In relation to the count of possessing a utensil or a pipe on 24 September 2006 the defendant disputes the factual circumstances surrounding the offence.  That charge should continue according to law.

(iii)       In relation to the count of driving under the influence of alcohol on 5 August 2007 there is no evidence to support a finding of unsoundness of mind.  That charge should continue according to law.

(iv)       In relation to the two counts of possessing a dangerous drug and taking alcohol from licensed premises on 18 August 2007 the defendant disputes the factual circumstances surrounding the offence.  Those three charges should continue according to law.

(v)        In relation to the counts of possession of dangerous drugs and failure to take reasonable precautions with respect to the needle and syringe on 22 November 2008 the defendant disputes the factual circumstances surrounding the offences.  Those two charges should continue according to law.

1. Accordingly there are eight charges during three relevant periods of offending which need to be carefully considered namely:

(i)         Going armed as to cause fear, serious assault and obstructing police on 23 September 2006.

(ii)        Assault occasioning bodily harm and two serious assaults on 20 October 2006.

(iii)       Attempted murder and assault occasioning bodily harm on 22 November 2008.

The views of the psychiatrists

Dr Aboud

1. Dr Aboud in his report dated 31 August 2009 and in his evidence to the Court considered that there is robust evidence that Mr Frost has, since 2005, suffered repeated episodes of psychosis, hallmarked by marked paranoia, persecutory delusions with religious and grandiose content, and auditory hallucinations.  Psychosis has been accompanied by significant mood elevation to the point of mania, where he has manifest pressured speech, flight of ideas, excessive energy, a lack of the need for sleep, increased libido, irritability, overt hostility and aggression.  There have also been periods, sometimes quite prolonged (such as the past six months) when his mood has become quite low with psychological and biological features of depression and ongoing suicidal ideation.  On three occasions he has even made attempts at suicide, most recently in March 2009 via a serious overdose of prescription medications.  He has described occasional periods of elated mood and of depressed mood that have occurred throughout his adult life.  He has claimed that prior to 2005 it was not to the severity that required psychiatric consultation, but he does claim to have visited his general practitioner when depressed, and to have been prescribed antidepressants.

1. Dr Aboud stated that this history is strongly suggestive of Bipolar Affective Disorder and that his preserved cognitions and personality functioning are supportive of such a diagnosis.

1. Dr Aboud also stated that Mr Frost has a history of alcohol abuse and polysubstance abuse which includes Amphetamines, Ecstasy, Methamphetamines, Cannabis, Alcohol and Testosterone.  He also has a documented history of poor compliance with prescribed medication.  It would be reasonable to believe that on occasion substance abuse and medication non-compliance have complicated his underlying mental illness, and have led to relapse.

1. Dr Aboud concluded that he could be diagnosed as suffering from a Bipolar Affective Disorder or alternatively from recurrent Drug Induced Psychoses (specifically stimulants and/or testosterone induced psychoses).

1. Dr Aboud stated that in his view a finding of unsound mind was relevant to the charges of 23/09/06, 20/10/06 and the charges involving physical violence of 22/11/08 because his behaviour and mental state at these times was consistent with the manic psychosis of a bipolar illness.  However, Dr Aboud also conceded that it was also consistent with a stimulant induced psychosis or indeed a testosterone induced psychosis.  He continued:[1]

“Considering that substance abuse probably precipitated and exacerbated and possibly perpetuated the destabilised state, the issue of intoxication arises, and in particular the differentiation of an intoxicated state from an induced psychosis/mental illness.  Intoxication must therefore be considered in relation to those same charges, and if relevant to the charges of August 2007.  Of note he disputes facts in relation to the charges of 13/06/05, 24/09/06, 18/8/07, and the drug-related charges of 22/11/08.”

[1]Dr Aboud Report, 31 August 2008, p 12.

1. Dr Aboud acknowledges that Mr Frost disputes facts in relation to the drug offences by claiming that the illicit drugs and paraphernalia found in his motel room were not owned by him.  It was Dr Aboud’s initial view that it was highly likely that Mr Frost had taken stimulant drugs and had injected testosterone at some stage (possibly days) prior to the material time.  He considered that this would be the most plausible explanation for: the presence of the ecstasy tablets and testosterone found in his room; the injection marks seen on his arm; his subsequent hyperpyrexia, rhabdomyolysis and acute renal failure (possible untoward effects of stimulant use); his subsequent hypercalcaemia (possible untoward effect of testosterone use).  In his view, the altered level of consciousness and disorientation when found in his motel room and when initially in Gladstone Hospital would be best explained by alcohol intoxication or intoxication by another substance.  Dr Aboud strongly suspects that substance misuse triggered or at least exacerbated and perpetuated the mental condition that was afflicting him at the time of the two violent offences. 

1. However, Dr Aboud states that the presence of a negative urine test for stimulants (at 1.50 am on 22 November 2008) suggests that he was not actively intoxicated by such substances at that time.  Whether he was intoxicated by testosterone, however, he considered was less clear and he was unsure of the significance of the raised free testosterone.  Dr Aboud also noted that Mr Frost gave a history of drug use, there was evidence of needle marks on his arm in November 2008, and that drugs were found in his unit.  Dr Aboud stated however that whilst a drug induced psychosis was indeed a possibility for all three periods of offending, on the balance of probabilities he would lean in favour of a conclusion that Mr Frost’s bipolar disorder was operating at the time of the offences. 

1. Accordingly Dr Aboud concluded that on 23 September 2006 Mr Frost’s mental illness was active and he was therefore deprived of the capacity to know he ought not do the act.  He also considered it was possible that he was deprived of the capacity to control his actions given that his actions on that day were almost “frenzied”.  He considered there was no evidence of intoxication present.

1. Similarly Dr Aboud considered that on 20 October 2006 Mr Frost’s bipolar illness was operating and that he was in a manic state.  In his view, he was therefore deprived of the capacity to know he ought not do the act.

1. On 22 November 2008 Dr Aboud also considered that Mr Frost’s bipolar illness was operating and he may also have had a delirium.  He conceded that it is also possible that lithium toxicity may also have been evident, as well as several other health conditions including renal failure.    

Dr Kingswell

1. Dr Kingswell prepared two reports, dated 2 May 2009 and 29 September 2008 and gave oral evidence to the Court.  Dr Kingswell considered that Mr Frost has a bipolar disorder which has continued without the existence of drugs and that drugs alone are not the cause for his condition.  Dr Kingswell’s view is that there is simply no evidence of intoxication, but rather there was clear evidence that Mr Frost was very unwell at the time of the offences.  Dr Kingswell noted that a number of substances have been referred to in relation to Mr Frost, in particular testosterone, steroids, lithium, ecstasy, viagra, cannabis, amphetamines and alcohol. 

1. Dr Kingswell considered, however, that whilst all of those substances can be relevant to intoxication, in the case of Mr Frost, they all need to be discarded because Mr Frost’s history is so unreliable.  Dr Kingswell stated that he had thoroughly reviewed all the medical records and there is no doubt that the contemporaneous drug testing records do not show the presence of drugs.  Furthermore, he does not consider that drugs alone could account for Mr Frost’s mental state on the occasions that he has been charged.  Dr Kingswell stated that there is simply no evidence in any of the drug screens that have been done to indicate the presence of drugs at the time of any of the relevant offences. 

1. Neither does Dr Kingswell consider that pathology testing supports a finding of a raised testosterone level as there is no indication it is outside the normal range.  He considered that essentially all of the psychiatrists were in agreement that Mr Frost was suffering from a bipolar disorder at the time of all of the periods of offending that are in contention. 

1. In relation to the September 2006 charges, Dr Kingswell considered that it was his bipolar disorder which was operating and it was the mental disease which led to the offences unfolding.  He was manic and he had a morbid alteration in mood in the direction of elation or anger.  He was overactive and had a reduced need to sleep.  Dr Kingswell considered he was quite psychotic and was of unsound mind.  He was unable to separate the idea that he had to defend himself and he was not able to know what he was doing was wrong. 

1. In relation to the October 2006 offences, Dr Kingswell considered that Mr Frost had been recently discharged and he had a manic episode; that it was a completely random attack on an innocent person and it was quite clear that his bipolar mental disease was operating and it deprived him of the capacity to know he ought not do the act.

1. In relation to the 22 November 2008 offences of attempted murder and assault occasioning bodily harm, he considers that there is simply one event which unfolded and it is his view that Mr Frost’s bipolar disease was operating throughout the entire event.  He considers that Mr Frost was very sick on that day and had renal failure and high temperatures.  He considers that the medical reports indicate Mr Frost was still confused on 24 November.  In his view the underlying bipolar mood disorder was operating together with a confused state at the time of those November offences.  The records show he had delusions and he was also verbalising his hallucinations.  He considers there was clear evidence of Mr Frost’s delusions and that he was very unwell.  Dr Kingswell’s view was that Mr Frost attacked staff because he thought he was under attack himself and he believed he had to defend himself.  His high temperatures and muscle breakdown were related to his renal failure. 

1. Dr Kingswell stated that the cause of the renal failure is not known.  He was disappointed that his lithium levels were not tested given that serum levels were taken.  However a test that was taken on 22 November 2008, after his admission to Gladstone Hospital, provides clear evidence that he had no drugs operating in his system.  He indicates that the medical information reveals one incident in May 2007 where he tested positive for amphetamines but on re-testing that test was negative and accordingly he considered that it was a false positive test. 

1. Dr Kingswell considers that Mr Frost has a recurrent bipolar mood disorder and he has had a number of admissions with recurrent psychotic episodes. 

1. Dr Kingswell stated that since writing his first reports, he has had access to further medical reports and information and has reviewed all of Mr Frost’s medical records and the evidence.  He has a firm view that Mr Frost was of unsound mind at the time he committed the eight offences in issue.  Dr Kingswell considers that it is clear that Mr Frost’s recovery has not been quick and he has concerns in relation to Dr Chauhan’s report that he observed nothing wrong with Mr Frost given that this is at odds with the hospital records.  Those records indicate Mr Frost was having hallucinations and record that he was quite disturbed on the ward.  He considers that the investigations conducted in the Rockhampton Hospital were poor and that the QAS notes and the ward notes are a better record of his mood. Those notes record his mood swings however subsequent psychiatric assessments did not consider that he was manic or had psychotic symptoms.  Dr Kingswell considers that something was missed.

Dr Todorovic

1. Dr Todorovic has been Mr Frost’s treating psychiatrist for more than three years and he has provided a number of reports to the Court.  He considers that there is strong evidence Mr Frost suffers from Bi-Polar Affective Disorder Type 1 which is complicated by the fact that he has a rare type of the illness because his episodes can occur quite quickly.  He can appear to be reasonable only to quickly descend into a manic episode with psychotic delusions, anger and aggression without reason. 

1. Dr Todorovic considers Mr Frost was of unsound mind at the time of all of the offences as a consequence of his bipolar affective disorder.  He acknowledges that whilst methylamphetamine may at some stage have triggered the symptoms of mental illness, it is clear that the symptoms have continued for some months while free of drugs and whilst on medication.  Dr Todorovic stated that he had worked with Mr Frost to assist him in recognising the onset of the symptoms of his mental illness and he was encouraged to seek assistance at the hospital when he felt the onset.  He considers that it is clear that Mr Frost was hearing voices on 22 November 2008 and that he tried to get assistance from the hospital but was sent home.  Within a short time he was found in his unit and was so acutely unwell when admitted to the Gladstone Hospital that he was transferred to Rockhampton Hospital.  Within an hour of arrival he assaulted a patient and a staff member without provocation.  He considers there is clear evidence Mr Frost was suffering a manic episode at that time and he was deprived of all three capacities as he experienced command hallucinations. 

1. Dr Todorovic considers that there is no issue of intoxication involved in the eight relevant offences and his report dated 15 September 2008 sets out the history of negative test results from September 2006 to September 2007.  The drug test taken on admission to the Gladstone Hospital on 22 November 2008 was also negative. 

1. Dr Todorovic had read Dr Chauhan’s report which indicated that there were no psychotic symptoms present on 24, 25, 26, 27 and 29 November 2008 whilst he was in the Rockhampton Hospital.  Dr Todorovic considered that because Mr Frost’s symptoms could present themselves quickly they may have been missed by the Rockhampton treating team.  He also stated that if Mr Frost receives treatment, his symptoms can settle within days, but if he does not receive treatment the symptoms can last two or three weeks.  He considered that after his admission to the Rockhampton Hospital, the medication was probably masking the symptoms.  It was his view however that the symptoms were still in existence and had not in fact resolved with treatment.  He states that Mr Frost’s bipolar mood disorder was still in fact in existence throughout the whole episode which commenced on 21 and 22 November 2008.

1. He also considers that during the three relevant offending periods those acute psychotic symptoms were in existence and that they switched on very quickly.  Dr Todorovic stated that even if Mr Frost presented as acutely unwell and his symptoms resolved after treatment, it was still consistent with a finding of unsoundness of mind.  He also indicated that when he became unwell Mr Frost became very frightened of police and he would also change his appearance. 

1. In relation to the 20 October 2006 offences, Dr Todorovic considers Mr Frost was unwell and was experiencing an exacerbation of his bi-polar disorder.  He considers he was deprived of the capacity to control his actions and know that he ought not do the act.  

1. He also considers that the 23 September 2006 offences occurred during a manic phase of Mr Frost’s mental illness. 

Dr Chauhan

1. Dr Chauhan is the psychiatrist who examined Mr Frost after his admission to the Rockhampton Hospital.  His evidence is that at the time he saw Mr Frost, several days after admission, he saw no manic features and no aggressive features.  There was no evidence of delusion and or of psychosis.  He considered Mr Frost was alert, conscious and oriented when he saw him.  He was aware of the history of loss of consciousness in the Gladstone Hospital and that he had been in a confused state.  On the basis of other clinical opinions however he did not consider that Mr Frost was in a state of delirium.  He knew of his history of previous methamphetamine abuse and whilst he considered the issue of lithium toxicity, he did not test his levels as he did not consider he was showing any signs of toxicity.  Dr Chauhan had seen Mr Frost the month previously and he was also being treated by Dr Todorovic at that time.  Dr Chauhan confirmed that at the time he saw Mr Frost his hair was dyed and there was some evidence of irritability.  He stated that he was looking for evidence of manic symptoms but did not see any.  He also indicated that if Mr Frost had in fact been in a manic state when he committed the offences on 22 November, his symptoms would not have resolved so quickly.

1. It is clear that Dr Chauhan’s view is quite different to the views of the other three psychiatrists and the views of the assisting psychiatrists.  The balance of the psychiatric opinion is also contrary to Dr Chauhan’s view.

1. Whilst Dr Chauhan did not ascertain any evidence of mania or of any psychotic illness, it is clear that there is other contemporaneous evidence which supports a finding that he was delusional and psychotic at the time.  The Gladstone Hospital notes on 22 November 2008 record Mr Frost as being loud, confused and talking constantly.  The Rockhampton Hospital notes record that he was “elevated” and at one stage he believed that the police were in the ward to actually “protect” him.  The notes also record that on 23 November 2008 Mr Frost said “I still am the ‘sorter’ and my website is bigger than google”[2] and the following day he is noted to be restless, unable to settle and pacing.  He was also observed to be guarded and asked staff to place him in seclusion for his own safety.  On 25 November the Rockhampton Hospital notes record him as “moderately grandiose” and stating that “its all sorted now”.  He was also heard to be directing his mother to “sell his properties”. [3]

   [2]At p 164 of Brief of Evidence.

   [3]At pp 182 and 183.

1. Both the assisting psychiatrists agree with the views of Dr Kingswell, that in relation to the eight relevant offences, Mr Frost was suffering from an exacerbation of his bipolar disorder and that he was psychotic at the time of the offences.  He was clearly in a state of delirium and in renal failure when admitted on 22 November but he had clear urine drug screens.  In relation to the rapid resolution of his condition after 22 November 2008, I agree with Dr Varghese that the rapid resolution of that state was most likely due to the rapid acting drugs that were injected on admission.

1. Ultimately I consider that I should not rely on Dr Chauhan’s report as I do not consider that Dr Chauhan’s view is supported by the contemporary records or the balance of the psychiatric opinion.  If the views of Dr Chauhan excluded the evidence is quite clear that Mr Frost had an exacerbation of his illness of Bipolar Affective Disorder at the time of the commission of the eight offences which are in issue. 

1. I consider that the incident of violence at the Rockhampton Hospital, which occurred within an hour of his arrival, occurred when he was in a manic state. 

Can a finding be made in relation to the question of intoxication?

1. In my view there is simply insufficient evidence to support a finding of intoxication. None of the urine drugs screens that were carried out indicate the presence of any substances at any time, even on the occasions Mr Frost indicated he was using drugs. 

1. Dr Aboud considered that although he suspected that Mr Frost had abused substances he was not confident, on balance, to make a diagnosis of a Substance Intoxication in the absence of more robust supportive evidence. 

1. Dr Kingswell categorically stated that the question of intoxication needed to be discarded as there was simply no evidence of this at the time of the relevant periods of offending.  Whilst Dr Kingswell considered that Mr Frost undoubtedly uses drugs at times, the timing of his use of drugs is simply unknown. 

1. Dr Todorovic’s view was that intoxication was not an issue and he gave evidence that he was conducting random urine drug screens and that there had been 14 or 15 tests in a row which had been negative for drugs.

1. I consider, therefore, that there is insufficient evidence to indicate intoxication was present at the time of any of the offences on 23 September 2006, 20 October 2006 or 22 November 2008.  

Was Mr Frost of unsound mind at the time of the 23 September 2006 offences?

1. Dr Aboud, Dr Kingswell, Dr Todorovic and both the assisting psychiatrists all considered that Mr Frost was suffering from a Bipolar Affective Disorder at the time of the eight relevant offences.  He was clearly experiencing a paranoid psychosis and had an elevated mood state with persecutory delusions that he would be harmed or killed.  The only evidence to the contrary is that of Dr Chauhan and as I have indicated I prefer the evidence of the other psychiatrists on this occasion. 

1. In my view, the evidence is clear that he was of unsound mind within the meaning of the Act at the time of these offences and was deprived of one of the relevant capacities    

Was Mr Frost of unsound mind at the time of the offences of assault occasioning bodily harm and serious assaults on 20 October 2006?

1. I consider that Mr Frost was suffering paranoid psychosis and elevated mood state, with persecutory delusions that he and his young son would be harmed.  I consider that this finding is supported by the factual material as well as the other psychiatric opinions.  Accordingly I am satisfied that Mr Frost was experiencing an exacerbation of his underlying illness of Bipolar Affective Disorder and that he was of unsound mind within the meaning of the Mental Health Act 2000 (Qld) at the time he committed the offences.

Was Mr Frost of unsound mind at the time of the offences of attempted murder and assault occasioning bodily harm on 22 November 2008.

1. Mr Finch, counsel for the Director of Public Prosecutions argues that in relation to the offences which occurred on 22 November there is insufficient evidence to support a finding that Mr Frost was deprived of one of the relevant capacities.  Counsel argues that Dr Todorovic’s evidence was that Mr Frost’s mental illness is punctuated by relapses which occur two or three times a year and usually take two or three weeks to resolve.  Dr Chauhan did not observe any mania whilst he was at Rockhampton Hospital and accordingly Counsel argues that Mr Frost’s condition on that occasion was not in fact an active relapse of his mental illness because it resolved so quickly.  Mr Finch argues that for a finding of unsoundness of mind there needed to be clear evidence.  Counsel argued that Dr Chauhan’s evidence precluded such a finding.   

1. As I have indicated I concur with the views of Dr Varghese that the underlying mental illness did not in fact resolve quickly but may have been masked at times given the level of fast acting medication which was in his system at the time of his examination by Dr Chauhan on 24 November two days after the incidents of violence.  I consider that on 22 November 2008 Mr Frost was suffering paranoid psychosis and an elevated mood state with persecutory delusions that the patient and the nurse wished to harm him.  In my view, he attacked them as a result of this psychotic mental state.  He was suffering from a manic psychosis that was part of a bipolar illness and that this mental disease deprived him of the capacity to know that he ought not commit the acts and possibly to control his actions in relation to the assault occasioning bodily harm and the attempted murder.  The evidence also indicates that a delirium may have been operating at the time of the offences on 22 November 2008.  It is clear that delirium by itself can be considered an abnormality of the mind such as to support a finding of unsoundness of mind.  The evidence would seem to be that the delirium was operating at the same time as the bipolar disorder.  I am satisfied that Mr Frost’s bipolar disorder was in fact operating at the time of the offences on 22 November 2008, whether alone or in conjunction with a delirium.

1. In any event, I am satisfied that Mr Frost was of unsound mind within the meaning of the Act at the time he committed the offences on 22 November 2008.

Fitness for Trial

1. The clear view of the psychiatrists is that Mr Frost is currently fit for trial in relation to those other eight offences which are to continue according to law.

Is a Forensic Order required?

1. In my view, there is clear evidence which is supported by all the psychiatrists that a forensic order is required given his history of chronic bipolar affective disorder and the fact his condition can deteriorate quite quickly.

1. Dr Edgar in his Report to the Court dated 21 April 2010 has indicated that Mr Frost is currently well controlled on his medication and recommends a Forensic Order should he be found to be of unsound mind at the time of the offences. He also supports treatment in the community as he considers that Mr Frost has demonstrated that he can comply with the requirements of a community order.

1. A Forensic Order in those terms is also supported by the assisting psychiatrists.  I have also taken into account material submitted pursuant to s 285 of the Act in determining the terms of the Forensic Order imposed.

1. There will therefore be an order that the defendant be detained as a forensic patient in the Gladstone Mental Health Service pursuant to conditions contained in Dr Edgar’s Report of 21 April 2010.  

Orders

1.          In relation to the count of grievous bodily harm on 13 June 2005 the charge should continue according to law.

2.          In relation to the count of possessing a utensil or a pipe on 24 September 2006 the charge should continue according to law.

3.          In relation to the count of driving under the influence of alcohol on 5 August 2007 the charge should continue according to law.

4.          In relation to the two counts of possessing a dangerous drug and one count of taking alcohol from licensed premises on 18 August 2007 the charges should continue according to law.

5.          In relation to the counts of possession of dangerous drugs and failure to take reasonable precautions with respect to a needle and syringe on 22 November 2008 the charges should continue according to law

6. In relation to the offences of going armed as to cause fear, serious assault and obstructing police on 23 September 2006, the defendant was of unsound mind as defined in Schedule 2 of the Mental Health Act 2000 (Qld)

7. In relation to the offences of assault occasioning bodily harm and two serious assaults on 20 October 2006, the defendant was of unsound mind as defined in Schedule 2 of the Mental Health Act 2000 (Qld).

8. In relation to the offences of attempted murder and assault occasioning bodily harm on 22 November 2008, the defendant was of unsound mind as defined in Schedule 2 of the Mental Health Act 2000 (Qld).

9.          The defendant be detained as a forensic patient in the Gladstone Mental Health Service as per the conditions outlined in Dr Edgar’s report of 21 April 2010.

10.       Limited Community Treatment is approved in the terms outlined in Dr Edgar’s report of 21 April 2010.