Re GMG
[2002] QMHC 19
•28 June 2002
MENTAL HEALTH COURT
CITATION: | Re GMG [2002] QMHC 019 |
PARTIES: | REFERENCE BY THE PATIENT’S LEGAL REPRESENTATIVE IN RESPECT OF GMG |
PROCEEDING NO: | 0058/02 |
DELIVERED ON: | 28 June 2002 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 30, 31 May 2002 |
JUDGE: | Wilson J |
ASSISTING PSYCHIATRISTS: | Dr D J Grant |
FINDINGS AND ORDERS: | 1. That when the alleged offence was committed, the patient was not suffering from unsoundness of mind as described in Schedule 2 of the Mental Health Act 2000 (Qld); 2. That when the alleged offence was committed, the patient was not suffering from diminished responsibility under s 304A of the Criminal Code 1899 (Qld); 3. That the patient is fit for trial; 4. Order that the proceedings against the patient for the alleged offence be continued according to law; 5. Order that there be liberty to apply. |
CATCHWORDS: | MENTAL HEALTH – DECLARATION OR FINDING OF MENTAL ILLNESS OR INCAPACITY – where patient charged with murder – where patient had been drinking heavily and feeling anxious at the time offence was committed – whether patient suffered from unsoundness of mind or diminished responsibility at the time of the offence – whether capacity to know that he ought not do the act absent or substantially impaired – whether deprivation or substantial impairment of capacity caused by major depressive disorder or intoxication – where conflicting expert psychiatric opinions given Criminal Code 1899 (Qld), s 27(1), s 304A(1) R v Miers [1985] 2 Qd R 138, considered |
COUNSEL: | S J Hamlyn-Harris for the patient C Heaton for the Director of Public Prosecutions J Tate for the Director of Mental Health |
SOLICITORS: | Wettenhall Silva for the patient The Crown Solicitor for the Director of Mental Health |
WILSON J: GMG has been charged with the murder of his wife on 15 July 2001. On 5 November 2001 his solicitors referred the matter of his mental condition to the Mental Health Tribunal pursuant for its consideration and determination in accordance with Part 4 of the Mental Health Act 1974 (Qld).The reference was heard by the Mental Health Court on 30 and 31 May 2002 pursuant to the Mental Health Act 2000 (Qld).
The issues for determination (on the balance of probabilities) are whether at the time of the alleged offence the patient was suffering from unsoundness of mind, and if he was not so suffering, whether he was of diminished responsibility: Mental Health Act 2000 s 267. He is presently fit for trial.
The patient and his wife had been happily married for thirty years with two adult sons. They had spent most of their married life in the Mackay district, where he was born and grew up. Over the years there were two occasions when the patient went missing from work and family without any communication for a day or so. Each was apparently precipitated by financial concerns, and after the second occasion he received some counselling from a psychologist.
The patient and his wife moved to Lakeland (where they had previously lived and worked for about a year) about nine months before taking their final camping trip. About a month prior to the alleged offence, the patient’s elderly mother asked for the return of $4,000.00, which was part of moneys she had previously lent him. He was not in a position to repay his mother. He had not told his wife about borrowing the money; he was fearful that she would find out that he had borrowed money he could not repay and become upset.
They were on a camping holiday at Bathurst Bay, 220 km north of Cooktown, in Cape York. They spent their time driving, fishing and spotting crocodiles. They were getting on well. He was nevertheless anxious about the money he owed his mother. Neighbouring campers observed that they seemed to be happy and sociable in the couple of days leading up to the incident.
One night when he was very drunk the patient killed his wife by striking her over the head with a hammer and then tying a rope around her neck. The next morning he set out for Laura, and early in the afternoon walked into the police station there and announced that he had murdered his wife.
It is clear that the patient was drinking heavily in the days leading up to his wife’s death. On his own version he would have consumed the equivalent of 34 standard drinks a day. It seemed to be common ground among the doctors who gave evidence that his drinking amounted to alcohol abuse but not to alcohol dependence. (Dr Fama had classified it as dependence in his written report but in oral evidence he revised his opinion.)
There is conflict in the expert evidence before the Court as to whether the patient was suffering from a major depressive disorder, and as to the role of intoxication in his conduct.
In the dictionary in Schedule 2 to the Mental Health Act 2000 “unsound mind” is defined as meaning –
“.. 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(1) 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 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.”
In the present case the issue is whether the patient was deprived of the third capacity - that is, the capacity to know that he ought not to do what he did.
“Diminished responsibility” is defined in the dictionary in Schedule 2 to the Mental Health Act 2000 as meaning –
“... the state of abnormality of mind described in the Criminal Code, section 304A.”
Section 304A(1) of the Criminal 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.”
Impairment of mental capacity caused by intoxication by alcohol cannot found a defence under s 304A. In R v Miers [1985] 2 Qd R 138 at 141 Campbell CJ said –
“[Section 304A] is explicit in providing that the state of mental abnormality must arise from a condition of arrested or retarded development or inherent causes or be one induced by disease or injury. [ … ]
In my opinion, alcohol (or drug) induced intoxication does not fall within any of the categories of abnormality of mind specified in s 304A.”
See also R v Nielsen [1990] 2 Qd R 578, where the Court of Criminal Appeal approved a direction to a jury that, for the purpose of the defence of diminished responsibility, they should disregard entirely the effects which alcohol might have played in the accused’s actions on the occasion in question.
I accept that a major depressive disorder is a mental disease within s 27(1) of the Criminal Code and that it is a disease which could give rise to such an abnormality of mind as to substantially impair a person’s mental capacity within s 304A. A personality disorder would not meet those definitions. A personality disorder is not a disease of the mind within the meaning of s 27 or s 304A of the Criminal Code: Cuffe, Mental Health Tribunal, 5 September 2001, unreported.
According to the Diagnostic and Statistical Manual of Mental Disorders, 4th ed (p 327) a major depressive disorder requires the presence of five or more of the following symptoms during a two-week period:
“(1)depressed mood most of the day, nearly every day, as indicated by either subjective report (e.g, feels sad or empty) or observation made by others (e.g., appears tearful).
(2)markedly diminished interest or pleasure in all, or almost all, activities most of the day, nearly every day (as indicated by either subjective account or observation made by others)
(3)significant weight loss when not dieting or weight gain (e.g., a change of more than 5% of body weight in a month), or decrease or increase in appetite nearly every day.
(4)insomnia or hypersomnia nearly every day
(5)psychomotor agitation or retardation nearly every day (observable by others, not merely subjective feelings of restlessness or being slowed down)
(6)fatigue or loss of energy nearly every day
(7)feelings of worthlessness or excessive or inappropriate guilt (which may be delusional) nearly every day (not merely self-reproach or guilt about being sick)
(8)diminished ability to think or concentrate, or indecisiveness, nearly every day (either by subjective account or as observed by others)
(9)recurrent thoughts of death (not just fear of dying), recurrent suicidal ideation without a specific plan, or a suicide attempt or a specific plan for committing suicide”.
Dr Basil James considered that the patient was suffering from a major depressive disorder. On the account the patient gave him, he identified the following criteria as having been present in the two weeks leading up to the incident: depressed mood, inability to experience pleasure, very poor concentration, markedly decreased energy, markedly disturbed sleep, and feelings of worthlessness or excessive or inappropriate guilt. He considered that the escalation in his drinking was attributable to depression, and that the depression was attributable not to previous alcohol consumption but to his mother’s demand for the return of the money. The patient was deprived by the underlying depression of the capacity to know that what he did was wrong, or at least that capacity was substantially impaired, in the hours leading up to the incident. If alcohol were a responsible factor,
“then I would expect at least a history of some sense of confusion, a confused account of what happened, probably a pretty poor and patchy memory, and that’s not what I got from the patient and I don’t think it’s what other people got from the patient either.”
Dr Kingswell and Dr Fama disagreed.
Dr Fama conceded in oral evidence that the patient was anxious and depressed in a reactive type of way, but not to the point of suffering a major depressive disorder. Dr Fama did not obtain such a strong history of symptoms of depression as Dr James did. He noted that fellow campers did not observe signs of depression, and commented that while his mood may have been disturbed to some degree, it was not to such a degree as to prevent him from carrying out ordinary social and recreational activities and evidently getting some satisfaction from them. He observed that the nature of the depression itself was not characteristic of a major depressive episode: in such an episode the patient can be expected to turn feelings of aggression and the like upon himself rather than upon another. The patient was arrested and placed in a correctional centre where he was assessed on 19 July 2001: major depression was not picked up in the medical screening process on his reception there. In Dr Fama’s opinion the patient had a personality weakness (or relatively minor personality disorder), namely a neurasthenic personality. Persons of such a personality –
“have an habitually inadequate, passive response to threat or stress, and are unable or unwilling to articulate their distress to others. If criminal propensities are displayed, these tend to be of an ineffectual, repetitive nature. Occasionally, extreme stress may provoke an exaggerated, violent response. There is often associated dependence upon alcohol or illicit drugs.”
He said in his report-
“I find that there is no history to indicate a mental disease or even an abnormality of mind here. … In my view alcohol intoxication ... was an essential component of his abrupt and violent behaviour.”
In Dr Kingswell’s opinion the patient was not deprived of the capacity to know that he ought not to do what he did. Alcohol was both a necessary and a sufficient explanation for his behaviour: it disinhibited the patient and impaired his judgment to the extent that he could see killing his wife as a reasonable way of solving what was for him a difficult problem. Dr Kingswell disputed very strongly that there was any evidence of major depressive disorder at any time prior to or subsequent to the killing of the patient’s wife. The patient did not report symptoms of depression or consider himself depressed. He did not describe anhedonia. He gave a clear history of experiencing anxiety. He gave a history of appetite and sleep disturbance, which might be associated with depression but more plausibly with huge alcohol consumption. (In its metabolism alcohol is changed to acetaldehyde which wakes a person up and causes him to sleep badly thereafter.)
The patient did not give evidence in this proceeding. As a general proposition, receipt of an expert’s opinion depends on proof of the facts on which it is based. Although this Court is not bound by the rules of evidence (Mental Health Act 2000 s 404), it would have been assisted by hearing from the patient in the circumstances. His account to Dr James of his symptoms before the incident seems to have been much stronger than the description he gave Dr Fama and Dr Kingswell. The Court had transcripts of interviews he gave the police the day after he killed his wife. They contain evidence of his being “uptight” about the financial problem and his not having shared it with his wife, and evidence of very considerable intake of alcohol, but they do not contain evidence of the symptoms relied on by Dr James. The Court also had transcripts of interviews other campers gave the police; they contain evidence of his apparent sociability and enjoyment of the holiday in the days leading up to the incident.
I have been assisted by Dr Wood’s succinct analysis of the differing psychiatric opinions (transcript pp 94 - 96). He identified one common theme - that the patient had a vulnerability which led him to an emotional reaction and perhaps to some other consequences. Three such episodes had been identified in his life. The reactive depression conceded by Dr Fama (which is compatible with the assessment of Dr James) would place it as an adjustment disorder. Dr James went further and postulated a major depressive disorder, but neither Dr Fama nor Dr Kingswell agreed. In their opinion if there was deprivation of mental capacity, it arose in the setting of established alcohol intoxication at the relevant time.
I have been assisted also by Dr Grant’s observation that from the clinical perspective intoxication seems to have played a very prominent part in the patient’s mental state at the time of the offence (transcript p 96).
On the balance of probabilities I am satisfied that the patient was not suffering from a major depressive disorder at the time of the offence. I do not accept that he had been experiencing the level of symptomatology he described to Dr James. I am satisfied that he was intoxicated at the time, and that any interference with his moral reasoning capacity was caused by that intoxication.
Accordingly I am satisfied that when the alleged offence was committed, he was not suffering from unsoundness of mind as described in Schedule 2 of the Mental Health Act 2000 and was not suffering from diminished responsibility. I find that he is fit for trial. I order that the proceedings against him for the offence be continued according to law.
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