Re GAH
[2005] QMHC 11
•24 February 2005
MENTAL HEALTH COURT
CITATION: Re GAH [2005] QMHC 011 PARTIES: REFERENCE BY THE LEGAL REPRESENTATIVE
IN RESPECT OF GAHPROCEEDING NO: 0025 of 2004 DELIVERED ON: 24 February 2005 DELIVERED AT: Brisbane HEARING DATES: 17 November 2004, 17 February 2005 JUDGE: Wilson J ASSISTING Dr J F Wood PSYCHIATRISTS: Dr DA Grant FINDINGS:
(1) That the defendant was not of unsound mind as described in schedule 2 of the Mental Health Act 2000
(Qld) at the time of the alleged offence; (2) That the defendant was of diminished
responsibility as described in schedule 2 of the Mental Health Act 2000 (Qld) at the time of the alleged
offence;(3) That the defendant is fit for trial. ORDER: That proceedings against the defendant for
manslaughter be continued according to law.CATCHWORDS:
MENTAL HEALTH – DECLARATION OR FINDING OF MENTAL ILLNESS OR INCAPACITY – where defendant charged with murder of his ex-girlfriend’s new partner – where defendant had been prescribed anti-depressants but had no other history of psychiatric illness – where after the alleged offence defendant complained of hearing voices before the incident – where ongoing self reports of hearing voices - where defendant now diagnosed with paranoid schizophrenia – where expert psychiatric opinion differed on whether defendant was suffering from fully developed paranoid schizophrenia at the time of the alleged offence – where some expert psychiatric opinion that defendant was suffering from an adjustment disorder at the time of the alleged offence – whether defendant was of diminished responsibility as described in schedule 2 of the Mental Health Act 2000 (Qld)
Criminal Code 1899 (Qld), s27, s304A
Mental Health Act 2000 (Qld), schedule 2
Byrne [1960] 2 QB 396 at 403, followed
Re CWB [2003] QMHC 012, cited
R v Ford [1972] QWN 5, cited
Re GMB (2002) 130 A Crim R 187 at 197 – 198, cited
Re H, Mental Health Tribunal, 19 January 2001, unreported,
Chesterman J, cited
R v Rolph [1962] Qd R 262 at 288, followed
R v Whitworth [1989] 1 Qd R 437 at 446, followedCOUNSEL: J Farmer for the defendant
J Tate for the Director of Mental Health
PJ Feeney and G Cash for the Director of Public
ProsecutionsSOLICITORS: Legal Aid Queensland for the defendant
The Crown Solicitor for the Director of Mental Health
The Director of Public Prosecutions
WILSON J: The defendant has been charged with murder on 6 December 2002. The matter of his mental condition in relation to the offence was referred to this Court by his legal representative on 2 March 2004.
The evidence did not support a finding of unsoundness of mind. The real issue is whether he was of diminished responsibility at the time of the alleged offence.
The victim of the homicide was TW, a 58 year old man. He was a slim man about 6 feet tall. The defendant is alleged to have kicked and punched him to death.
From about mid 1999 to late October 2002 the defendant was in a de facto relationship with JT, who was 18 years older than he. It was his only significant adult relationship. The defendant was physically and verbally abusive towards his partner throughout the relationship, and she decided to end it after the defendant was thrown out of a local sporting club because of his involvement in 2 separate fights. On 27 October 2002 his partner told him the relationship was over and the next day she stayed at a female friend's house in a suburb adjoining that in which they had been living. On 29 October 2002 the defendant tried to persuade his partner to come back to him. Later that day when she went to the house to collect her belongings, the defendant became threatening towards her and tried to choke her. After he finally released her, he asked her not to go to the police but to take him to hospital. She took him to a local general practitioner. Subsequently she informed the police and made an application for a domestic violence order.
The defendant went to live with his parents, and JT moved back into the house they had shared. The friend with whom she had stayed overnight moved into the second bedroom and they shared the rent. The defendant continued to pursue her, but to no avail. JT started seeing TW, whom she had known for about 2 years. They began a sexual relationship about 2 or 3 weeks before the homicide.
On 5 December 2002 JT's housemate went to Cairns for a week. That evening JT went shopping with TW. They returned together to her house and went to bed. It was the third time he had stayed overnight with her there. About midnight they were woken by the defendant breaking into the house. The defendant was very angry. He said something like, "How could you do this to me?'" Then he walked into the kitchen, grabbed a knife from the knife block, and put it to his throat threatening to kill himself. Then he pushed the bedroom door open (despite JT and TW putting all their weight behind it to stop him doing so), charged into the bedroom and commenced to assault TW. The attack was brutal and sustained. JT escaped and tried to rouse neighbours.
Meanwhile a neighbour had called the police, who arrived about 20 past 12 in the morning. They found the defendant standing on the footpath with blood on his face, neck torso and arms, saying that he had just killed someone, because he had caught him in bed with his missus. They then entered the house, where they found TW naked from the waist down and with severe head injuries. They could not find a pulse and were unable to revive him. He died at the scene.
Shortly after police arrived on the scene, the defendant was arrested. When warned that he did not have to say anything or make any statements, he said, “You can’t do anything to me. I’m mad. I was up at the hospital last week.”
Defendant's history
The defendant was born on 7 May 1973. He is a very tall man (about 6 feet 7 inches) of proportionate muscular build. He is of borderline intelligence. He did not do well at school, and was frequently teased for being tall and skinny. He left school having failed grade 10 and found unskilled work in the construction industry. However, he had difficulty keeping jobs, leaving peremptorily after a few weeks and on some occasions being dismissed. He had over 60 jobs between leaving school and the homicide, which occurred when he was aged 29. He has an extensive history of polysubstance abuse, particularly alcohol and cannabis, although his cannabis consumption reduced dramatically during his relationship with JT. There is no evidence of intoxication with alcohol or drugs at the time of the homicide.
The defendant has a history of impulsivity and anger. However, until the relationship breakdown he had no psychiatric admission to hospital and no relevant criminal history. He was emotionally distraught at the loss of his relationship with JT and he developed rage. At times he turned his anger against himself with thoughts and gestures of self harm, but there is no record of any serious attempt to kill himself. His general practitioner prescribed Zoloft, an antidepressant medication. He attended the Chermside Community Mental Health Service on 6 and 12 November 2002 seeking help for depression and anger. On the second occasion he was seen by Dr Mann, a principal house officer. Dr Mann’s notes record (inter alia) –
“Nil psychotic features, ongoing paranoid thoughts/personality but
no obvious delusional thinking.
No grounds for ITO.”
The defendant had lacerations to his right shoulder and right forearm. Police transported him to the Emergency Department of the Royal Brisbane Hospital where his injuries received medical attention. He was not admitted as an inpatient. Then he was taken to the City Watchhouse where he was reviewed by a government medical officer, Dr Hoskins, who recommended assessment by an authorised mental health service. Dr Hoskins recorded –
“Convincing auditory hallucinations
- commentary on actions/activities - enquiring about same - persecutory
Delusions of paranoid type
- feels he is being pursued/chased (anonymous) - auditory hallucinations support
Talking openly of suicide although no planning
Emotionally labileAlleged to have murdered in the past 24 h”
Dr Hoskins recorded further on a Prisoner Medical Record Sheet –
“Zoloft 6/52 100 mg mane. Took OD [overdose] 2 – 3/52 [two to three weeks] ago about 8 or 9. Hearing voices last couple of days – ‘really I have been hearing them before that.’ Voices asking what he is doing, comments on what he is doing. Voices are not inside his head – sound like they are physically talking to him. Would feel very happy if his life was ended – long standing. Feels nauseated. No somatic experiences. Now feels (and hears) he is being chased. Sister is schizophrenic.
Imp(ression) – appears genuine. D/W [discussed with] Cassandra
Griffin ´ JOMH.”
Dr Hoskins has since commented –
“It may help the Court to know that in circumstances such as these (alleged murder) that my threshold for recommending assessment would have been low, having regard to the value of a timely evaluation of GAH’s capacities.
I have no postgraduate qualifications in psychiatry.”
At about 6.05 pm on 6 December 2002 the defendant was admitted to the Urquhart Unit at the John Oxley Memorial Hospital. On admission he was cooperative but agitated; he said he felt suicidal and was hearing voices. He said he had been hearing the voices for about 2 years. Someone was talking to him saying, “I’m going to get you.” It sounded like a spoken word and was “mind blowing”. He thought others could hear them. He had not made a big issue of the voices in case people thought he was “nuts”.
Over the next few days he continued to report voices. On 7 December 2002 he described voices of several people telling him he was stupid and that they would get him. He could recognise that they were "just voices". He was very vague in describing them - for example, avoiding response to the question whether they were coming from outside or inside his head. (That is a distinguishing feature of true auditory hallucinations which come from objective space as opposed to pseudo hallucinations which are internally experienced.) He said he wished he were dead and that the voices were bothering him too much. He said that he had been seen by a psychiatrist at Prince Charles Hospital after his attack on JT, but that he had been too embarrassed to admit to hearing the voices even though he had been asked whether he did. Later he told a staff member about his sister's schizophrenia and that he did not want to be sick like her.
On 9 December 2002 the defendant was assessed by Dr William Kingswell, psychiatrist. Dr Kingswell concluded that the history of hallucinations was highly suggestive of malingering, and that there was no other evidence of a psychotic illness. On the other hand there was positive evidence of personality disorder and drug abuse. He did not need to be detained for treatment as a classified patient.
On 11 December 2002 the defendant was taken to the Arthur Gorrie Correctional Centre. On reception there he was still complaining of voices; he said that he had been hearing these occasionally since childhood, but more frequently over the last 2 years. He was placed under observation in the High Risk Assessment Team programme because of his history of self harm at the time of the homicide. On 23 January 2003 he was agitated, saying that voices were keeping him awake and telling him they would cut him with scissors. On 28 February 2003 he told Dr Simon Burton, psychiatrist, of hearing voices and people chasing him with knives and scissors - he said he knew this because they told him so. He was prescribed both Zyprexa (antipsychotic medication) and Avanza (an antidepressant).
Dr Prabal Kar, psychiatrist, examined the defendant at the request of his solicitors at the Arthur Gorrie Correctional Centre on 3 March 2003. The defendant described himself as suffering mood swings, chronic depression and anger management problems; he said he was a violent man and had been so all his life. Dr Kar considered he had several personality vulnerabilities. At interview he was alert and cooperative. His attention and concentration were normal. Eye contact and rapport were normal. His thoughts showed no abnormalities in form, stream or possession. There were no delusions. He complained of subjective depression, but Dr Kar considered that objectively his mood was slightly lowered in range and reactivity but not overtly depressed or anxious. The mood appeared appropriate to the context and did not show any abnormal features. Memory, orientation and judgment appeared normal. He complained of hearing voices, but Dr Kar did not consider these to be true hallucinations. There was no loss of contact with reality. Dr Kar reported on 28 March 2003 -
"GAH's reported psychotic symptoms such as hearing voices, fearing people were chasing him with knives and scissors to hurt him, and seeing delusions of dragons and alligators, appear to me to be malingered symptoms to give the impression of a psychotic illness.
In my opinion his alleged offences were due to his strong emotional reactions, jealousy, and anger at the rejection by his ex-girlfriend. He appears to have reacted in a way that was consistent with his personality, that is with excessive anger and a loss of control of his aggression. At no point did I feel that this behaviour appeared to be driven by external factors such as psychotic beliefs."
In a later report (9 December 2003) Dr Kar said that the defendant has an antisocial personality disorder and traits of borderline personality disorder, both of which could be associated with serious anger management problems. He had a state of distress and blind anger and jealous rage at his ex-partner cohabiting with another man - which was not his usual state of mind. His state of mind was caused by his personality features, which were greatly aggravated by the loss of the relationship. He said -
"Though his anger and jealous rage blinded him at the time, I did not feel he had an impairment of any of the three relevant capacities due to any underlying condition of arrested or retarded development of mind or inherent causes or induced by disease or injury."
In oral evidence Dr Kar added despair to the emotional turmoil experienced by the defendant. Dr Wood asked him -
"Do you see that set of emotions as operating on his personality disorder in such a way as to significantly diminish or substantially diminish his capacity to control?'
Dr Kar responded in this way -
"Yes, I think it's a difficult question for me to say with confidence. I - I would not be able to answer that question with any degree of confidence but I would say it did affect him given his unique vulnerabilities to lose control. I mean, I have no doubt that he lost control."
In answer to a question by Dr Grant, Dr Kar said that, given the defendant’s personality and other factors outlined, his reaction to the events may not have reached diagnostic criteria for an adjustment disorder. Other opinions that the defendant may have developed a psychotic illness after the homicide were put to Dr Kar, but he was not persuaded to alter his own opinion. He said on 4 November 2004 -
"It is my opinion that even if he did develop a genuine psychotic illness later, there was no evidence that at the time that he was acting under the influence of his illness, or that any of the relevant capacities were substantially impaired by the effects of such an illness. He had self reported significant anger which was at times quite extreme."
Dr Aleksandra Isailovic, psychiatrist, examined the defendant on 25 October 2003. The results of her mental state examination differed little from those of Dr Kar. She said -
“MENTAL STATE EXAMINATION
GAH presented as a “gentle giant”. He was a very tall (over 190cm) muscular man of a fair complexion. His attitude was quite different to his appearance. He assumed a slouched posture, meek facial expression and was quite affable in his interaction. He was an eager and forthcoming historian. He had no abnormal movements. His speech was fluent and grammatical. The conversation was meaningful and his successive ideas were coherently linked in a logical fashion. He had no formal thought disorder. His reported mood was dysthymic. His affect however (observed expression of emotional tone) was reactive and of full range. His reported “paranoia” failed to meet phenomenological criteria for persecutory delusions, and could be interpreted as delusion-like ideas of reference, not so uncommon in prison population. There was no evidence of other grossly abnormal ideas, such as delusions or suicidal ideation. He reported pseudo-hallucinations. GAH’s insight was limited and his judgment was characterized by significant immaturity and impulsivity.
Cognitive examination revealed mild global cognitive deficits in areas of attention and memory (recalling 5 out of six pieces of information), ability to grasp abstract meaning of words, poor motor and visual sequencing, and problems with more complex tasks which require intact executive functioning (i.e. Tail Making B). This cognitive profile is consistent with borderline intellectual functioning. His IQ falls at the lower end of normal range.”
In Dr Isailovic's opinion -
"The Question of the Presence of Mental Illness
This young man presents with a vast array of pseudo-psychotic and depressive symptoms, which fail to fulfill criteria for any major mental illness. In DSM-IV terms his problems could be classified as Adjustment Disorder with Mixed Disturbance of Emotions and Conduct (DSM-IV: 309.4) in a man with antisocial personality traits. In simple terms, he had a maladaptive reaction to the relationship breakdown and his pre-existing impulsivity and dysthymia became exaggerated. His distress was in excess of what would be expected from exposure to the stressor. Because of his vulnerable personality structure and diminished intellectual capacity he failed to utilize more mature intrapsychic defenses and coping styles. With respect to ‘voices and visions of people with scissors and knifes’, these are pseudo-psychotic phenomena occurring in a distressed person and are not suggestive of organic or functional psychosis. It was expected that all his symptoms would have disappeared with termination of stressors (i.e. had he re-established a relationship with JT). Although GAH listed a number of ‘paranoid beliefs’, these were not consistent with a definition of delusion. Furthermore none of his symptoms interfered with his day-to-day functioning, ability to adapt to prisons setting, make friends, and even counsel other inmates through the ‘buddy program’”.
Dr Isailovic was later prepared to concede that the adjustment disorder may have been the prodrome of a psychotic illness. She said -
"Even if GAH had suffered from a prodrome of the psychotic illness at the time, there is no evidence that the illness has deprived him of any relevant capacities as referred in Section 27 of the Criminal Code. The symptoms combined with his low intellect were sufficient to impair his capacity to control his actions - supporting a defence of Diminished Responsibility. However, as noted in my report, dated 8 December 2003, the Court would need to consider that the offence was also driven by a normal human emotion, jealousy."
In oral evidence Dr Isailovic accepted that the most appropriate current diagnosis for the defendant is paranoid schizophrenia. As Dr Grant, one of the assisting psychiatrists, explained, schizophrenia is an illness which develops over time, from a prodromal phase (where the symptoms are non-specific and not at diagnostic level) to its full-blown state. Dr Isailovic conceded that at the time of the homicide the defendant may have been in the prodromal phase or even suffering from the fully developed illness, but she was not convinced of the latter. She conceded that schizophrenia and an adjustment disorder could co-exist. Ultimately, she maintained her opinion that through a combination of an adjustment disorder and borderline intellectual functioning, the defendant’s capacity to control his actions was substantially impaired. She seemed also to come close to saying that his capacity to reason about the moral rightness or wrongness of what he was doing (ie the capacity to know he ought not do the act) was substantially impaired.
On 16 January 2004 the defendant told Dr Burton that he had been experiencing a number of unpleasant phenomena for several months: in the morning after fully wakening, he saw males in the corner of the room; they tended to be ex prime ministers and to be quite threatening in their manner; he also heard voices that were threatening and insulting.
Dr Edward Heffernan, psychiatrist, saw the defendant on one occasion in January 2003, and then became his treating psychiatrist in February 2004. In March 2004 he was complaining of "voices in the head" which were encouraging him to harm himself and of persecution from various sources including other inmates and correctional staff. He also experienced symptoms consistent with delusions of reference, describing the radio as referring to him in a derogatory manner. His antipsychotic medication was increased with little benefit and then in April it was changed to Seroqual. He continued to experience distress.
Dr Ness McVie, psychiatrist, examined the defendant on 12 May 2004. In her opinion he was not suffering from a psychotic illness at the time of the homicide or when she examined him. While she did not think he had a personality disorder, she found a number of underlying inadequacies - dependent traits, borderline traits and anti-social traits. He had a lot of aggression and impulsivity and was a vulnerable person. She agreed that because of his personality structure the loss of the relationship with JT adversely affected him more than the loss of a relationship would normally affect somebody: it was an abnormal adjustment to the stress of losing a relationship. His capacity for control was impaired thereby, to a moderate degree.
On 13 May 2004 the defendant leapt off a balcony and fell 20 feet breaking his left fibula. He was hospitalised in the Princess Alexandra Hospital where his antipsychotic medication was increased incrementally. On his return to prison he reported some improvement. However, over the ensuing month his psychotic symptoms continued, escalated and caused him significant distress. In June 2004 his antipsychotic medication was changed to Solian, to which he had an excellent response. That medication had to be changed because of side effects when taken in combination with medication for another physical condition. On 17 September 2004 Dr Heffernan wrote -
"In my experience with GAH it has been difficult to make an accurate diagnosis given the mix of mood, anxiety, and psychotic like symptoms throughout his contact with forensic psychiatric services; particularly given the context of his significant psychosocial stresses. Over the last six months I feel the most likely diagnosis has been Schizophrenia. I believe he has benefited from antipsychotic treatment."
In January 2005 Dr Heffernan maintained his diagnosis of a psychotic illness (most likely schizophrenia), and was continuing to treat him for such. Dr Pam van de Hoef, another psychiatrist, who took over assessment and review of the defendant for the Prison Mental Health Service while Dr Heffernan was on a month’s leave, agreed with the diagnosis. She said –
“On 31/01/05 he presented as settled, well, albeit with low grade psychotic anxiety and depressive symptoms and is in my opinion, fit for trial.”
Dr Peter Fama, psychiatrist, examined the defendant on 29 July and 5 August 2004. In his opinion the defendant did not have a personality disorder, but he certainly had dependent traits and immature traits. In his opinion there were 2 parallel factors at work at the time of the homicide - a psychotic mental process and the emotional mix of anger, jealousy, rage and despair. The psychotic process (an abnormality of mind) "pushed his reaction further than a normal reaction would've been." His capacities to control his actions and to know that he ought not do the act were substantially impaired by that combination of factors. Dr Fama said in oral evidence -
"He saw himself guided by the voice and guided by his natural feelings, too, as doing what he thought was the natural and understandable thing even though, after the event, he felt quite remorseful."
Dr Fama said that the sense of menace and threat experienced by the defendant before the homicide could have been a prodromal symptom, but that the hearing of voices indicated to him the actual onset of schizophrenia. Whether it was merely a prodrome or whether the illness had actually set in, the defendant was suffering from an abnormality of mind. Initially Dr Fama had been inclined to regard the defendant's story of hearing voices as insubstantial and uncorroborated. However, there were 2 factors which persuaded him that the defendant was suffering from an abnormality of mind and that the homicide was not merely a crime of extreme passion -
(a)
that the reported hallucinations had persisted throughout his (then) 20 month period of remand imprisonment and that they had been accompanied by paranoid thinking and self-harm;
(b)
that the defendant's mother, although unaware of his hearing voices prior to the homicide, had described marked withdrawal, distress and suicidality, which were features suggesting abnormality of mind in a letter to Dr Fama dated 10 August 2004. (But as Dr Isailovic said in oral evidence, the mother’s account seems to be of his behaviour after the relationship ended.)
Dr Fama went on -
"I think finally the thing that pegs it down, as it were, is the fact that this man, on being given anti-psychotic medication over a period, has in fact responded quite well to it."
Diminished responsibility
Diminished responsibility is defined in Schedule 2 of the Mental Health Act 2000 as “the state of abnormality of mind described in the Criminal Code, section 304A.” Section 304 of the 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.”
Conclusions on the Medical Evidence
At the time of the homicide the defendant was a 29 year old man of borderline intelligence. He had some personality vulnerabilities, including impulsivity and aggression, but there is insufficient evidence in his longitudinal history to draw a conclusion of personality disorder. He suffered anger, jealousy and despair as a result of the loss of his relationship with JT. These feelings were exacerbated when she subsequently commenced a relationship with another man. The defendant’s response to his loss exceeded the emotional response normally to be expected in such a situation, and amounted to an adjustment disorder. (See DSM-IV TR at 683). At the same time the defendant was developing a schizophrenic illness: it may still have been in the prodromal phase or it may have been at a diagnostic stage.
The defendant’s capacity to control his actions and probably also his capacity to know he ought not do the act were substantially impaired by a combination of these factors.
Abnormality of mind
The expression “abnormality of mind” may be wider than “mental disease or natural mental infirmity” in s 27 of the Criminal Code. As Parker LCJ said in Byrne [1960] 2 QB 396 at 403 -
“‘Abnormality of mind’ … means a state of mind so different from that of ordinary human beings that the reasonable man would term it abnormal. It appears to us to be wide enough to cover the mind’s activities in all its aspects, not only the perception of physical acts and matters, and the ability to form a rational judgment as to whether an act is right or wrong, but also the ability to exercise willpower to control physical acts in accordance with that rational judgment.”
It goes beyond the limits marked out by the variety of intelligence and disposition in the community generally (R v Rolph [1962] Qd R 262 at 288) and it excludes extremes of common emotions such as anger or jealousy (R v Whitworth [1989] 1 Qd R 437 at 446. See the thorough and helpful review of the authorities by Chesterman J in Re GMB (2002) 130 A Crim R 187 at 197 - 198.
An adjustment disorder (or reactive depression as it is otherwise known) has been held to be a state of “abnormality of mind” arising from a prescribed cause: see R v Ford [1972] QWN 5. See also Re H, Mental Health Tribunal, 19 January 2001, unreported, Chesterman J and Re CWB [2003] QMHC 012. Here it arose from psychological injury in the context of inherent vulnerabilities. Schizophrenia is, of course, a mental illness, and borderline intelligence is a product of “arrested or retarded development of mind”.
Findings
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Order
I order that proceedings against the defendant for manslaughter be continued according to law.
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