Re Gardner

[2009] QMHC 5

MENTAL HEALTH COURT OF QUEENSLAND

CITATION:

Re Gardner [2009] QMHC 5

PARTIES:

REFERENCE BY THE DIRECTOR OF MENTAL HEALTH IN RESPECT OF AARON GARDNER

PROCEEDING:

No 0227/2008

DELIVERED ON:

31 July 2009

DELIVERED AT:

Brisbane

HEARING DATE:

21 July 2009

JUDGE:

Philippides J

ASSISTING PSYCHIATRISTS:

Dr J M Lawrence
Dr E N McVie

FINDINGS AND ORDER:

1. That at the time of the alleged offences the subject of the reference, the defendant was not suffering from unsoundness of mind as described in Schedule 2 of the Mental Health Act 2000 (Qld);

2. That at the time of the alleged offences the defendant was not of diminished responsibility as described in Schedule 2 of the Mental Health Act 2000 (Qld);

3.    That the defendant is fit for trial;

4.    That proceedings against the defendant continue according to law.

CATCHWORDS:

MENTAL HEALTH – DECLARATION OR FINDING OF MENTAL ILLNESS OR INCAPACITY – where the defendant charged with murder, assault, dangerous operation of a vehicle and entering a dwelling with intent to commit an indictable offence – whether defendant was of unsound mind at the time of the alleged offences

MENTAL HEALTH – DECLARATION OR FINDING OF MENTAL ILLNESS OR INCAPACITY – whether defendant was of diminished responsibility at the time of the alleged offence of murder – where evidence of impairment of capacity – whether impairment was “substantial”.

Mental Health Act 2000 (Qld), schedule 2
Criminal Code 1899 (Qld), s 304A, s 27

Re AJA [2004] QMHC 024, followed
R v Biess [1967] Qd R 470, followed
Re CJS [2003] QMHC 013, followed

R v Lloyd [1967] 1 QB 175, applied

COUNSEL:

Mr J Briggs for the Defendant
Mr D Lang for the Director of Mental Health

Mr S Vasta 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)

1. PHILIPPIDES J:  Aaron Gardner is charged with the murder of Lauren Taylor, the assault of Christopher O’Donnell, dangerous operation of a vehicle and entering a dwelling with intent to commit an indictable offence.  These offences are all alleged to have occurred at Gatton on 24 July 2006.

Background

1. The defendant, who is now 30 years of age, has a long history of anxiety symptoms that developed in childhood.  He experienced bullying at school, in addition to sensitivity regarding his appearance and in particular his prominent ears for which he sought surgery.  After the separation of his parents when he was 16 years old, the defendant reported experiencing depressed mood and first experiencing suicidal ideation.  He also resorted to drug use.  Subsequently, following the breakdown of a relationship, he used amphetamines regularly.  He eventually sought psychological support for his anxiety symptoms.  In 2001, he was prescribed an antidepressant and ceased using illicit substances.  He began studying and subsequently obtained employment as a research assistant. 

1. In about April 2006, the defendant began a relationship with the deceased, who was then aged 20.  The deceased terminated the relationship shortly before the events the subject of the charges.  In the context of difficulties at work, and the breakdown in his relationship with the deceased, he began to experience depressive symptoms.  He was admitted to the Toowoomba Mental Health Unit on 12 July 2006, describing fatigue, thoughts of self-harm and reported experiencing hopeless thoughts, suicidal ideation and depression.  He also described poor sleep and appetite, reduced concentration and motivation.  No psychotic symptoms were noted.  During admission, the defendant’s antidepressant medication was changed.  He was discharged on 18 July 2006 with a diagnosis of Major Depressive Episode (Situational Crisis). 

1. The events giving rise to the charges are not in dispute.  On the day in question, the defendant purchased a knife.  He broke into the deceased’s house.  He then waited in the house expecting the victim to return from university.  He waited until a neighbour departed and then stabbed the deceased to death with a hunting knife.  The neighbour returned, having heard the victim’s screams.   The defendant fled and obtained a lift to his vehicle. He drove some distance.  He then flagged down a passing motorist in a University vehicle.  The driver happened to be one of his supervisors at work with whom he had experienced previous difficulties.  The defendant told him he had killed his girlfriend, and appeared to be very agitated.  The defendant became aggressive and punched his supervisor, and pulled out his knife, at which time the man managed to drive off.  The defendant then attempted to obtain a rope, with the intention of hanging himself, before being involved in a high speed chase which led to him surrendering to police after he lost control of his vehicle and crashed.

1. Prior to going to the victim’s house, the defendant met two women whom he paid to have sexual intercourse with.  The evidence of one of the women was that the defendant discussed having to buy knives and stated, “I have some unfinished work to do”.  He also told her “to keep an eye on the news tonight”. 

Evidence of Dr Neillie

1. In his report of 6 October 2008, Dr Neillie noted that from self report, the defendant was experiencing worsening depressive symptoms over a one to two month period prior to 24 July 2006, following the break-up of his relationship with the deceased.  He has also described feeling angry towards the victim and believing that the victim had had a termination during their relationship.  He described experiencing suicidal and homicidal thoughts following the separation from the victim.  In the days leading up to the events in question, the defendant told others of his thoughts about killing his ex-girlfriend.  He reported acting on these thoughts by having knives in his car and purchasing a knife on 24 July 2006.

1. Dr Neillie noted that in the preceding weeks, the defendant described experiencing symptoms that would be consistent with a diagnosis of a Moderate Depressive Episode (ICD 10, F32.1).  He also noted the diagnosis of the Toowoomba Mental Health Unit on 19 July 2006 of a Major Depressive Episode (Situational Crisis), and opined that both from self report and from the available collateral information, there was no evidence to suggest that he was experiencing symptoms of a psychotic illness at that time.  Dr Neillie considered that the defendant had a longitudinal history consistent with the presence of traits of Emotionally Unstable Personality Disorder (ICD10, F60.3).  In addition, he considered that, given the defendant’s past history of anxiety symptoms, a diagnosis of social phobia could be made. 

1. By the time of Dr Neillie’s assessment of the defendant at the High Secure Unit, he considered that the defendant was suffering from a Severe Depressive Episode with psychotic features (ICD10, F32.3).  He made this diagnosis in view of the degree of depressive symptoms that the defendant experienced while in custody and the emergence after the events in question of psychotic symptoms.

1. On the issue of unsoundness of mind, Dr Neillie did not support a defence, observing:

“In my opinion, at the material times, the depressive symptoms and intrusive thoughts that Mr Gardner had been experiencing may have contributed to some impairment of his capacity to know that he ought not do the act or make the omission. However, from the available information I do not believe that these symptoms would have been sufficient to deprive him of that capacity or of the capacity to control his actions, or of the capacity to understand what he was doing as defined under Section 27 of the Criminal Code.”

1. In relation to the question of diminished responsibility, Dr Neillie opined:

“If the court were to consider that the depressive symptoms Mr Gardner was experiencing leading up to the material times represented an abnormality of mind then, in my opinion, these symptoms would have contributed to some impairment of Mr Gardner’s capacity to know that he ought not do the act or make the omission.

It is possible that the degree of these symptoms may have contributed to a substantial impairment of that capacity.  However, there is evidence that Mr Gardner felt angry towards the victim who had ended their relationship, that the ending of the relationship appeared to be the trigger for him experiencing homicidal thoughts towards the victim and that following the break-up of a previous relationship he had threatened to kill his partner and threatened her with weapons.”

1. In giving oral evidence, Dr Neillie stated that he considered there was an impairment of the capacity to know that he ought not do the act, but that he did not consider that on the balance of probabilities there was a substantial impairment of that capacity.   Dr Neillie indicated that he had viewed the tapes of the interview of the defendant and observed, “I didn't feel there was a great deal of evidence that his thinking was affected by some abnormal process at the time”.  Notwithstanding significant questioning on the matter, Dr Neillie maintained his view that the impairment present at the relevant time was not substantial, stating:

“I still think that the sequence of events and the planning on that day, notwithstanding the fact that [the defendant] has displayed depressive symptoms and his personality vulnerabilities, to me didn't indicate a severe or a substantial degree of impairment.”

Evidence of Dr van de Hoef

1. Dr van de Hoef saw the defendant on 19 November 2008.  In her report of 12 December 2008, Dr van de Hoef opined that at the time she examined the defendant he was floridly psychotic (and had been since at least September 2006).  She noted his illness was then characterised by bizarre somatic hallucinations (of live spiders marching round his stomach), persecutory and nihilistic delusional beliefs (of being poisoned with spider eggs), and marked affective disturbance (depressive symptoms, morbid preoccupations, and perhaps some briefer hypomanic swings, manifesting as irritability, or as part of the “speed rushes”).  However, she also noted that these florid symptoms appeared to have developed since his arrest.

1. In her report Dr van de Hoef stated:

“The contemporaneous history (largely from the Toowoomba MHS) suggests he became depressed in the context of a failing relationship with Ms Taylor, and other psychosocial stressors.  The mental health services history since incarceration suggests he became more depressed, suicidal and psychotic thereafter.

I suspect, however, he actually has a schizophrenic illness, with a prominent mood component (or perhaps, and less likely, a Bipolar Affective Illness with psychotic features) and the offences were committed at the beginning, or close to the beginning, of an illness, which has evolved and changed.

In other words, after considering all the available material, I think he was clearly depressed at the time of the alleged offences, but has become, over time, and after treatment for depression, less depressed, and more psychotic.”

1. In her report Dr van de Hoef noted the following pertinent background information:

“In the 2 weeks prior to, and on the day of the offences, Toowoomba MHC staff believed him to be depressed (‘moderately depressed, Major Depressive Episode, Chronic dysthymia’ were descriptors used at the time), in the context of the break-up with his girlfriend, and at risk of suicide and violence to others, but they did not observe or elicit any psychotic symptoms and signs.  The assessments by different personnel in and out of hospital were consistent with each other, and entirely consistent with recommended treatment with antidepressants and follow-up.

Witness statements (including by one of the call girls he visited on the day of the offences) are referred to in Dr Neillie’s report, and include descriptions of Aaron Gardner expressing anger toward Lauren for ‘treating him … like nothing’, and advising the call girl he had ‘unfinished business’, and to find out about it on the evening news.  On the face of it, these comments sound like anger at rejection; there is little to support the notion they were necessarily psychotic ideas.

He continued to work full-time, before and after his hospitalisation in early July 2006 for Major Depressive Episode, though there is some evidence his performance had deteriorated.

It is possible, I think, at that time his exceedingly violent and homicidal ruminations (and actions, if one considers the reports of road rage incidents) were unreported, underestimated, or unnoticed.  It is also possible that his more developed psychotic illness in 2007 and 2008 has caused him to reinterpret or ‘rewrite’ events from 2006 differently.

He had thought to kill Lauren Taylor (and himself, and other people) at various times for at least 2 weeks before the offences.  He bought a knife for the purpose (and a rope for hanging), implying some planning.  He told Toowoomba MHS of these thoughts, and wrote a note to his brother stating his intention to kill her, as well as writing computer suicide notes.  He notified his boss the morning of the offences that he was going to hospital.  He justified his use of the call girls that day in the light of an anticipated lengthy absence (to me), but to his treating team, he said it was because he would soon be dead.

Despite some evidence of planning, however, he also did a number of contradictory, inconsistent things that day, including approaching his supervisor for help, then abusing, threatening and assaulting him.  He cancelled his MHC appointment, then indicated he would go to hospital, then decided they could not help, and then went to the clinic, but did not stay.

After killing Ms Taylor, he embarked on an erratic journey during which he confessed the killing (to his supervisor) then conceived of, and enacted, a number of plans to kill himself.  He assaulted (and threatened) the man for no clear reason, other than because he was extremely agitated (and on the point of suicide).  He then repeatedly stabbed himself, may have taken an antidepressant overdose, and crashed his car.”

1. In the light of that background, Dr van de Hoef concluded that at the relevant time the defendant suffered from a mental disease, namely a psychotic disorder, probably schizophrenia, which had a prominent mood (depressive) component.  She also opined that it was possible, but less likely, that he had a primary mood disorder, that became very severe and developed (mood-congruent) psychotic features.  Dr van de Hoef adhered to this view in her oral evidence.  She did not diagnose a personality disorder.

1. In her report, Dr van de Hoef indicated that, while she did not support a defence of unsound mind, finding no deprivation of capacity, she supported a finding of diminished responsibility on the charge of murder.  She reported:

“If the Court finds that at the time of the offences, Aaron Gardner suffered an abnormality of the mind (namely a psychotic illness, with depressive symptoms, or arising from a depressive disorder) but was not deprived by it of any of the relevant capacities, I would support the opinion that it substantially impaired his capacity to know he ought not do the act, in the case of each and every one of the offences.”

1. However, Dr van de Hoef revised her opinion as to diminished responsibility after having access to additional collateral material.  In giving oral evidence, she stated:

“… I think there were a number whiffs of psychotic illness that I found in the history leading up to and around the time of the offences.  None of them were very rock solid, none of them were terribly well substantiated.  I admit that.  And on the day of the offence he was, I think, extremely well assessed by the TACT team in Toowoomba, who knew what they were looking for.  That is, psychosis or severe depressive illness, something that would explain the offences that happened that day, they looked for and could not find.  That impression I think was only reinforced for me when I saw the DVD recording of the police record of interview.  I couldn't see anything psychotic … in that interview either.  It seemed [a] coherent account of [the] offence but did not seem to be tied to or driven by a major mental illness.  Sure, he had an illness at the time, sure, he was having treatment, but when I view all the material together now, I think the glimpses I saw, that I concluded might have represented a prodrome of a psychotic illness, don't really stack up against all of the other evidence of planning, of clear thinking, of presenting reasonably and coherently to a number of other people.  I don't think it stacks up now as a substantial impairment.  I still think he was impaired but not substantially so.”

Evidence of Dr Reddan

1. In her report of 4 March 2009, Dr Reddan noted that the defendant’s longitudinal history and presentation suggested quite significant characterological and personality problems which within diagnostic classifications would best be characterised as a Personality Disorder Not Otherwise Specified (DMS-IV-TR), with significant borderline and narcissistic personality traits.  She also considered that he might also have some avoidant personality traits and observed that the defendant described a past history of Social Phobia.    

1. Dr Reddan noted in her report that:

“During the couple of weeks leading up to the alleged offences, Mr Gardner was more dysphoric as Ms Lauren Taylor sought to end their relationship and overall, the clinical picture would suggest that he developed a Major Depressive Disorder (DMS-IV-TR) of mild to moderate severity.  Alternatively, he may have had an Adjustment Disorder with Depressed Mood (DSM-IV-TR).  The notes from the Toowoomba Hospital and the descriptions of his behaviour by some of the witnesses at the relevant time indicate that the Major Depressive Disorder was not accompanied by melancholic features.  Individuals with borderline personality traits are often acutely sensitive to abandonment and individuals with narcissistic personality traits may be controlling, and such individuals often experience rejection as a major narcissistic insult.  There is no evidence that at the time of the offences Mr Gardner was intoxicated with any substance.”

1. She was of the same view as the other expert reporters in respect of the question of unsoundness of mind.  In relation to the charge of murder, Dr Reddan did not support a defence of diminished responsibility.  She accepted that the defendant’s depressive disorder in combination with his longstanding personality disorder might be considered to represent an abnormality of mind, but opined that:

“… the evidence that any impairment in his capacity to understand what he was doing, to control his actions or to know that he ought not do the act, was substantial is far less certain.  I would agree with Dr Darren Neillie as expressed in his report of 6 October 2008, that it is likely that there was some impairment but the totality of the evidence does not suggest that this impairment was substantial.  In particular, the nature of the condition from which he was suffering at the relevant time, the longitudinal history of similar behaviour, the Statements of the Witnesses … and the Record of Interview with the police do not suggest a substantial impairment of any of the three capacities specified.” 

1. In oral evidence Dr Reddan stated that the most relevant capacity was the capacity to control and reiterated her view that she did not consider that there was a substantial impairment of that capacity.

Assisting psychiatrists

1. In advising the court, Dr Lawrence observed in relation to the question of diagnosis and unsoundness:

“I think it’s interesting and worthy of comment that there seems to have been a lot of quite good and fairly extensive contemporaneous psychiatric assessments of this man in close proximity to the offending behaviour.  He had sought help for depressive symptomatology in the weeks preceding these terrible events, that is, following the rejection by his girlfriend, or by Lauren Taylor, about whom he seems to have had unrealistic and excessive expectations of the relationship and the future together and was obviously struggling with her rejection of him.

The psychiatric assessments, which actually included almost a week in Toowoomba Hospital for treatment of his depression, gives us an opportunity to make a reasonably reliable assessment of his psychiatric condition at that time.  The diagnosis that seems to have been agreed on is the major depressive disorder of moderate severity.  There may well have been some melancholic features, I would have thought, present but there was definitely no evidence of any psychotic features present at the time of his discharge on the 19th.”

1. In respect of the issue of diminished responsibility Dr Lawrence noted in her advice to the court that:

“It is clear that all the three reporters said that whilst it was possible that there was some impairment of one of the capacities, that no reporter, no expert, would believe that that impairment was of a substantial degree or substantial nature.

It seemed that it was the capacity to know not to do the moral wrongfulness of the act, which was the first capacity which was addressed, but it seemed to me that the capacity to control his emotions may have been more directly in question, but even the capacity to control emotions, none of the expert witnesses would go so far as to say there was any substantial impairment at all.”

1. Dr McVie’s advice was also that there was no clinical basis to reject any of the evidence of the three expert witnesses, that while there was some impairment, it was not substantial.

Findings

1. The evidence presented to the court indicated that the defendant developed a depressive disorder, considered to be of moderate severity, in the context of the deceased having ceased a brief relationship with him.  I note that extensive psychiatric assessments made not long before and after the events in question revealed no evidence of psychotic features.  While there were some differences in the approaches of the reporting psychiatrists to the question of diagnosis, there was complete agreement that the defendant’s condition was not such that there was a deprivation of any of the relevant capacities.  In those circumstances, I find that the defendant was not of unsound mind at the time of the alleged offences.

1. In relation to the charge of murder, the matter that arises for consideration is whether the defendant was of diminished responsibility. In Schedule 2 of the Mental Health Act 2000 “diminished responsibility” is defined as “the state of abnormality of mind described in the Criminal Code, section 304A”. Section 304A(1) of the Criminal Code provides –

“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.”

1. I note that all of the reporting psychiatrists accepted that the defendant was suffering from a depressive disorder at the relevant time, with Dr Neillie and Dr Reddan also seeing it as being present in the context of a pre-existing personality disorder. However, even accepting that the defendant suffered from an abnormality of mind at the relevant time, the difficulty in the present case is that what is required in terms of s 304A of the Criminal Code is “such a state of abnormality of mind as substantially to impair” one of the three mental capacities.  In Re AJA [2004] QMHC 024 and Re CJS [2003] QMHC 013, Wilson J observed that “substantial” has been held to be an imprecise term, somewhere between trivial or minimal and total: see R v Biess [1967] Qd R 470 and R v Lloyd [1967] 1 QB 175. I accept that as the correct approach to be taken.

1. I note that, while all of the reporting psychiatrists considered there was impairment in one or other of the capacities, they were ultimately united in offering the clinical opinion that the defendant was not substantially impaired in respect of any one capacity.  A key factor in the reasoning behind their opinions was the extent of planning and deliberation in the period prior to the events in question, and the lack of psychotic features associated with the defendant’s depressive disorder at the time in question.  I accept that clinical opinion, which was also supported by the assisting psychiatrists.  In the circumstances, I find that the defendant was not of diminished responsibility. 

1. The defendant is fit for trial. Accordingly, I order that the proceedings against him for all of the alleged offences be continued according to law.