Re Galstaun
[2009] QMHC 17
•23 September 2009
MENTAL HEALTH COURT
CITATION:
Re Galstaun [2009] QMHC 17
PARTIES:
REFERENCE BY THE DEFENDANT’S LEGAL REPRESENTATIVE IN RESPECT OF HENRY SARKIES GALSTAUN
FILE NO/S:
No 0222 of 2008
DELIVERED ON:
23 September 2009
DELIVERED AT:
Brisbane
HEARING DATE:
31 August 2009
JUDGE:
Ann Lyons J
ASSISTING
PSYCHIATRISTS:Dr F Varghese
Dr E N McVieFINDINGS AND ORDER:
1. That at the time of the three alleged drug offences on 14 April 2006 (one charge of possession of a dangerous drug and two charges of possession of utensils), the defendant was not of unsound mind;
2. That the defendant is fit for trial;
3. That the proceedings against the defendant for the three alleged drug offences on 14 April 2006 are to continue according to law.
4. That at the time of the other seven alleged offences on 14 April 2006 the defendant was of unsound mind as described in schedule 2 of the Mental Health Act 2000 (Qld);
5. That the defendant be detained as a forensic patient at the Princess Alexandra Hospital Authorised Mental Health Service;
6. That limited community treatment is approved to commence immediately on the conditions contained in the submission from the Director of Mental Health.
CATCHWORDS:
MENTAL HEALTH – DECLARATION OR FINDING OF
MENTAL ILLNESS OR INCAPACITY – where defendant charged with one count each of attempted arson, entering a dwelling with intent at night, wilful damage, breaking and entering at night whilst armed with intent, possession of a dangerous drug, assaulting Police, two counts of obstructing Police and two counts of possession of utensils – where defendant diagnosed with a schizophrenic illness – where there was evidence that the defendant used benzodiazapines heavily at the relevant time and during the preceding year – whether intentional intoxication contributed to the defendant’s state of mind at the relevant time – whether the defendant was of unsound mind as described in Schedule 2 of the Mental Health Act 2000 (Qld) at the relevant time – whether the defendant is fit for trialCOUNSEL:
Mr J Briggs for the defendant
Mr J Tate for the Director of Mental HealthMs C Kelly for the Director of Public Prosecutions
SOLICITORS:
Legal Aid Queensland for the Defendant
Crown Law for the Director of Mental Health
The Director of Public Prosecutions (Qld)
ANN LYONS J:
Mr Galstaun is charged with 10 offences; five indictable charges and five simple offences. All of those offences occurred on 14 April 2006. In relation to the indictable offences he is charged with attempted arson, entering a dwelling with intent at night, wilful damage, breaking and entering at night whilst armed with intent and possession of a dangerous drug. In relation to the simple offences Mr Galstaun is charged with one count of assaulting police, two counts of obstructing police and two counts of possession of utensils.
This is a reference by the legal representatives for Mr Galstaun dated 3 October 2008 for the court to determine his mental condition at the time of the alleged offences.
At 5.45 am on 14 April 2006 the complainant, who had befriended Mr Galstaun, heard a noise at her front security door. When she opened the door she saw Mr Galstaun, who she had previously told was no longer welcome at her home. She closed the door but continued to bash at the door causing damage. When she heard him go to the back door she called police. He then armed himself with a shovel and smashed her bedroom windows. She fled to a neighbour’s house and when police came to the complainant’s address, Mr Galstaun was found setting fire to her curtains. He then ran from the room and barricaded himself in the garage, armed with a rod and a piece of wood. He swung at police and they had to wrestle him to the ground and use capsicum spray to restrain him. During the altercation he struck one officer in the arm.
Mr Galstaun told police he had intended to burn the unit to ensure that the complainant, who he believed was being held captive by a neighbour, could escape and be forced to find somewhere else to live. Mr Galstaun also smashed windows and ransacked rooms in another unit at the same address and it would seem that he was looking for the occupant. The factual basis for the three drug offences is that at 2.00 pm later that day police executed a search warrant at Mr Galstaun’s residence and found a plastic bag with green leafy material and three brass pipes.
Mr Galstaun was then detained in the Maryborough Correctional Centre from April 2006. The notes at the Correctional Centre indicate insomnia and difficulty sleeping, as well as a dependence on Stilnox. There is no indication of any psychiatric intervention until well over a year later. It was not until May 2007 that the Correctional Centre notes indicate that Mr Galstaun appeared depressed and agitated, but that he denied paranoia and said that he was sleeping okay. He indicated that he heard sounds of automatic gunfire once a fortnight and had flashbacks to his Army days. The forensic liaison officer (FLO) at the Correctional Centre considered he was despondent and that he believed that certain people could read his thoughts. He was not suicidal but had insight and considered he needed help. The FLO referred him for urgent psychiatric review.
At that psychiatric review, Dr Calder-Potts noted that he had a previous admission to the RBH in 2001 where he had persecutory ideas. He then had a subsequent admission to the PA at which time he was paranoid and on Stilnox. Dr Calder‑Potts’ opinion as a result of the review was that his persecutory ideas resulted more from his personality than from his mental illness. The report of a previous treating psychiatrist, Dr Ward, is also in evidence. That report indicates that in 2001 Mr Galstaun was involved in an incident at a Big W store and was found to have knives in his possession, as well as cans of black paint. On that occasion he was floridly psychotic, with persecutory and grandiose delusions about the police following him constantly. On that occasion he reported using benzodiazepine. He was diagnosed with chronic paranoid schizophrenia with benzodiazepine withdrawal delirium over the two weeks prior to his admission. It was considered that he had recovered and lost his delusions. It was considered that he was deprived of understanding and knowledge in relation to those 2001 offences.
A number of questions arise. Was Mr Galstaun was in fact psychotic at the time of the commission of the offences? Does Mr Galstaun currently have a diagnosis of chronic paranoid schizophrenia? If Mr Galstaun was psychotic the issue which then arises for determination is whether Mr Galstaun was in fact intoxicated by drugs at the time of the commission of the offences or whether the psychosis operated independently of the drugs and was not dependent for its existence on the presence of the drugs.
The Act
This court must determine whether the defendant was “of unsound mind” at the time of the alleged offences having regard to schedule 2 to the Mental Health Act 2000 (Qld) (“the Act”). The words “unsound mind’ are defined in the schedule as follows:
“‘unsound mind’ means the state of mental disease or natural mental infirmity described in the Criminal Code, section 27, but does not include a state of mind resulting, to any extent, from intentional intoxication or stupefaction alone or in combination with some other agent at or about the time of the alleged offence.”
Section 27 of the Criminal Code 1899 (Qld) 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.”
The task of the court particularly in relation to the issue of intoxication was discussed by Wilson J in Re LIH[1]:
“The Court must determine whether he was deprived of one of the capacities by a mental disease, and if so, whether that state of mind resulted to any extent from intentional intoxication.
The ‘state of mind’ referred to in the second part of the definition of ‘unsound mind’ (beginning ‘but does not include ...’) is a description of absence of capacity caused by mental disease. This part of the definition recognises that there may be more than one cause of a deprivation of capacity. The other cause (or causes) may be intentional intoxication or something else. If intentional intoxication plays any role in bringing about the deprivation, the state of mind does not amount to ‘unsoundness of mind’: that is what is meant by the words ‘resulting, to any extent, from …’.
Mental illness may deprive someone of one of the capacities. Another capacity may be adversely affected by mental illness or by intoxication or by a combination of mental illness and intoxication (whether or not the intoxication is combined with some third factor). The extent (whether deprivation or mere impairment) and the cause or causes of the adverse effect on the second capacity cannot derogate from a finding of unsoundness of mind based on the deprivation of the first capacity.”
[1][2002] QMHC 014 at [13].
The reports and evidence of the psychiatrists
Dr Fama and Dr Khoo prepared reports and gave evidence at the hearing. Dr Fama interviewed Mr Galstaun in September 2007 for a report for his lawyers. Dr Fama noted the previous treatment at the RBH which had included diagnoses of schizophrenia and benzodiazepine dependence. He also noted Mr Galstaun’s odd behaviour in early April 2006 where he indicated he had a twin called Michael and he spoke of a Judge who was the king of Hervey Bay and that one day he would shoot the Judge. He also referred to a woman Barbara as the Queen and that he wanted to kill her. He indicated that two women had conspired to make him mental and he wanted to get the complainant out to protect her from Barbara and that he lit the curtain to get attention.
In Dr Fama’s opinion, there was a drug-induced schizophreniform psychosis and benzodiazepine dependence. Dr Fama considered that there was a psychosis at the time of the offences which was manifested by extreme agitation and delusions. The delusions were to alert and save the complainant but also to protect himself against a conspiracy. Dr Fama considered that Mr Galstaun had impaired capacity to understand his actions and was deprived of the control. He considered that there was a uniform deprivation in respect of all 10 offences of the capacity to know he ought not do the acts. Dr Fama considered that there was an indication in his notes that Mr Galstaun’s paranoid features persisted for weeks after a withdrawal and he considered that the psychosis was secondary to the benzodiazepam abuse. Dr Fama does not consider there was an innate medical mental health condition because after the cessation of the drugs his condition eventually improved. He considered there was a consistent intake of drugs, namely benzodiazepam and Stilnox to excess. Dr Fama noted in his evidence to the Court that there was no history of amphetamine use in the material that Mr Galstaun provided to him.
Dr Fama’s conclusion was that Mr Galstaun was of unsound mind at the time of the offences as his behaviour was attributable to a drug-induced psychosis rather than simple drug intoxication. He considered that a drug induced psychosis was a mental disease within the provisions of s 27 but that a simple intoxication by drugs was not within the section.
Dr Fama’s view was that Mr Galstaun was of touch with reality at the time of the offences, he was paranoid and in particular he was uncertain as to his own identity, given his indication he had a twin. Dr Fama was not satisfied there was evidence of schizophrenia or a delusional disorder. Dr Fama also considered that whilst the intoxication by drugs deprived him of the capacity to control his actions, he was sufficiently deprived by his psychosis of the capacity to know that what he was doing was wrong. Dr Fama stated that irrespective of the cause of the end state, it is the end result which matters. Dr Fama considered Mr Galstaun could not reason correctly because of his psychosis.
Dr Khoo examined Mr Galstaun in March 2009 on two occasions and provided a report to the Court. Dr Khoo gained the additional history that Mr Galstaun had used amphetamines for 10 years. Mr Galstaun told Dr Khoo that he was using amphetamines twice daily in the 12 months prior to the offences. This information does not appear in any other report. Dr Khoo considers that Mr Galstaun was behaving erratically from the time he moved into his share house some months prior to the offences and that he had some bizarre and confronting behaviour. In her opinion, Mr Galstaun had a substance induced psychotic disorder due to amphetamine abuse. She considered that his psychosis had been present for at least five months before the alleged offences. She also considered he had chronic delusional beliefs in relation to police and that his increased use of amphetamines resulted in further deterioration of his mental state.
Dr Khoo considered that because he was still demonstrating evidence of delusional beliefs 14 months after he was incarcerated despite being free of drugs, then he was not intoxicated at the time. Dr Khoo stated that it took 12 months after his incarceration to see a psychiatrist; [2]
“more than 12 months after he has been incarcerated. He reports that his sleep had improved on Endep but he continues to say that he thinks police have targeted him over the years and they’ve done this by locking him up again at Arthur Gorrie. He goes on to say he’s certain, this is people in the Maryborough Correctional centre, are reading his thoughts.”
[2]Transcript day 1at p 25, ll 37-45.
Dr Khoo agreed that “the psychosis had a life of its own” at the time of the offences.[3] She considered he was psychotic at the time and that he was deprived of the capacity to know he ought not do the acts, other than the drugs charges.
[3]Transcript day 1at p 25, ll 10-11.
Dr Khoo’s conclusion was that Mr Galstaun was deprived of the capacity to know he was not to do the act in relation to the offences at the complainant’s unit and that this was solely due to his psychosis. She considered that the intoxication only went to the impairment to control his actions and that quite apart from intoxication he was deprived of the capacity to know he ought not do the act. In relation to whether Mr Galstaun could have been chronically intoxicated Dr Khoo stated that the information from his general practitioner was that he had never seen him intoxicated or demonstrate evidence of delirium.
It was clear however that Dr Khoo did not consider he was deprived of capacity in relation to the drug offences. Mr Galstaun had indicated to her that at the time he had in his possession a quantity of marijuana and three brass pipes which were for his personal use and he was aware that smoking marijuana and being in possession of utensils was a criminal offence.
The views of the assisting psychiatrists
The views of the assisting psychiatrists were also sought. Dr Varghese considered that it was clear that there was basically agreement on a number of issues. First that Mr Galstaun was psychotic at the time of the offences. Second that he was psychotic to the extent that it deprived him of the capacity to know he ought not do the act and third that he is not currently ill. He considered the real issue was the nature of the psychosis at the time of the offences.
Dr Varghese stated that delirium (rather than a psychosis) usually occurs as a result of benzodiazepine abuse and that if there is a psychotic episode from benzodiazepine use it is usually because of an underlying psychosis. Dr Varghese stated that,[4] “It seems to me unlikely that the psychosis was due to benzodiazepine abuse…it is unlikely that you could get psychosis that would survive the absence of benzodiazepine or the withdrawal phase.” He considered that it was “most likely that his psychotic state was due to amphetamine abuse”.
[4]Transcript day 1 at p 49, ll 35-36.
Dr Varghese considered that because there were no current symptoms of psychosis then this excluded “a previous schizophrenic like illness or delusional psychosis”.[5] He stated that the real issue was whether it was amphetamine induced psychosis or amphetamine intoxication. He said that where amphetamine use has ceased after a long period of high dose use there can be a prolonged psychosis. This psychosis is indistinguishable from schizophrenia as it is characterised by delusional beliefs including hallucinations.
[5]Transcript day 1 at p 49, ll 31-32.
In Dr Varghese’s view, the Maryborough Correctional Centre notes show no evidence of psychosis at the time of his admission to the centre. The notes record only benzodiazepine withdrawal, which was appropriately treated. He considered therefore that as there was no evidence of psychosis in the prison notes that it was most likely to be amphetamine intoxication rather than amphetamine psychosis. He considers that this conclusion is supported by the fact that there was no psychosis on subsequent occasions. Whilst Dr Varghese is satisfied that Mr Galstaun was in a state of a psychosis and he was deprived of capacity at the time of the offences, he does not consider that s 27 applies because it was due to intoxication and not a psychosis.
Dr Varghese also stated that in relation to the drug charges the evidence showed that Mr Galstaun had clearly indicated to police that he knew it was wrong to use and possess drugs. Accordingly he did not consider there was a defence of unsoundness of mind available. He considered a forensic order was required.
Dr McVie stated that it was quite clear that Mr Galstaun was psychotic at the time of the offences. She agreed that it was unlikely that benzodiazepine would cause psychosis. She also said that the other drug in question, Stilnox, is not a benzodiazepine and that it also usually causes a delirium. Dr McVie stated that she was not aware of any cases where Stilnox had induced an ongoing psychotic disorder. In her view there was no evidence to support an ongoing diagnosis of schizophrenia. She considered that Mr Galstaun was an unreliable historian and indicated that there was no objective evidence of intoxication or of amphetamine use. She considered that if there was no intoxication then it would be quite clear that Mr Galstaun was deprived of capacity and should be found of unsound mind due to his psychosis at the time.
Dr McVie considered that a forensic order was required given the seriousness of the offence and his treatment needs.
In relation to the drug offences Dr McVie stated that it was clear from the police interview that Mr Galstaun it was wrong legally to possess cannabis but he believed it was a reasonable activity for him to engage in.
The issue
The interesting issue in this case is that there would seem to be clear agreement from the psychiatrists that Mr Galstaun was clearly psychotic at the time of the offences. It is also clear that due to this psychosis Mr Galstaun was deprived of the capacity to know that he ought not do the act.
It is also clear that all the psychiatrists currently agree that he is not currently ill and he does not have any psychosis. There is no psychosis currently present despite the fact Mr Galstaun is not on any antipsychotic medication and that the medication that he is on would have more of a tendency to induce a psychosis. Furthermore, there are no negative symptoms of schizophrenia present. Accordingly as there are no current symptoms this would operate to exclude a diagnosis that he has a schizophrenic type illness.
The question, however, is whether the psychosis was simply drug intoxication or a drug induced psychosis. The resolution of this issue is important as it is only a drug induced psychosis which amounts to unsoundness of mind.
Conclusion
I note that apart from Mr Galstaun’s admissions to Dr Khoo about the use of amphetamines there is no independent evidence that he had in fact used amphetamines prior to the 14 April 2006. I also note that Mr Galstaun has been described as an unreliable historian. I further note that in his 2001 drug screens at the RBH no amphetamines were detected although it would seem that he told Dr Khoo he started to use amphetamines in 2003. There is no criminal history related to amphetamine use and no trace of amphetamines found by police when they searched his flat.
Ultimately, irrespective of whether Mr Galstaun’s condition on the day of the offences was caused by amphetamines as described to Dr Khoo or benzodiazepines as described to Dr Fama the result is clear. He experienced a psychosis. All the psychiatrists consider he was psychotic at the time of the offences. As Dr Fama put it “I think either group of drugs could cause exactly the same sort of symptoms, the same paranoid state”[6].
[6]Transcript day1 at p 6, ll 52-53.
Not only am I satisfied that Mr Galstaun was psychotic I am also satisfied that there is evidence that the symptoms of that psychosis lasted for more than a month. Accordingly I am satisfied that this ongoing psychosis was therefore clearly operating independently of the ingestion of drugs. This psychosis therefore was not therefore mere intoxication by drugs but a psychosis which had an existence which was not dependent simply on the ingestion of drugs.
A drug induced psychosis is a mental disease within the provisions of s 27 of the Criminal Code. I consider that Mr Galstaun could not reason with a moderate degree of composure about the moral rightness and wrongness of his actions. He was suffering from unsoundness of mind at the time he committed the offences at the complainant’s unit on 14 April 2006. He was as Dr Fama put it “quite convinced that people were threatening him, they wanted to harm him, and that he had to retaliate in what he saw was an appropriate manner.”[7]
[7]Transcript day1 at p 6, ll 10-13.
In relation to whether intentional intoxication interfered with any of the relevant capacities I agree with Dr Fama conclusion that whilst Mr Galstaun’s volitional capacity may have been impaired or even deprived by intoxication “his actual beliefs upon which he based his actions, his beliefs of persecution and threat, they arose not from intoxication but from his psychotic state.”[8] In terms of the degree of intoxication present he considered it was “substantial but not indispensable”.[9]
[8]Transcript day1 at p 7, ll 30-33.
[9]Transcript day1 at p 7, ll 41-42.
I consider that Mr Galstaun was suffering from unsoundness of mind at the time he tried to break into the unit due to his drug induced psychosis.
In relation to the three drug offences however I consider that on the balance of probabilities there is no evidence to suggest he was deprived of any of the relevant capacities. He is fit to plead and those proceedings should now continue according to law.
I consider that given the seriousness of the offences, Mr Galstaun’s current treatment needs and the protection of the community a forensic order is required pursuant to s 288 of the Act.
Mr Galstaun is therefore to be detained at the Princess Alexandra Hospital Authorised Mental Health Service, with limited community treatment to commence immediately, at the discretion of the treating psychiatrist, on the following conditions:
1. That he reside at Unit 2, 2 Lake Street, Yeronga, Qld, 4104 or at an address approved in advance in writing by the authorised psychiatrist;
2. That he present to Dr Li Chen at the Burke Street Community Mental Health Service, 2 Bourke Street, Woolloongabba, Qld, 4102 at 1400 pm on 24 September 2009 or as otherwise advised by the authorised psychiatrist and attend all follow-up appointments and in-patient care as required by the authorised psychiatrist;
3. That he comply with the requirements of the authorised psychiatrist in relation to the taking of prescribed medication and other treatment;
4. That he refrain from the use of alcohol and drugs and make himself available and co-operate fully in random medical tests for those substances as required by the authorised psychiatrist;
5. That he not drive a motor vehicle unless permitted to do so by the authorised psychiatrist.
0
0
0