Re Gray

[2013] QMHC 8

MENTAL HEALTH COURT

CITATION:

Re Gray [2013] QMHC 8

PARTIES:

REFERENCE BY LEGAL AID QUEENSLAND IN RESPECT OF SHARLENE GAIL GRAY

PROCEEDING NO:

0104 of 2012

DELIVERED ON:

26 June 2013

DELIVERED AT:

Brisbane

HEARING DATE:

12 June 2013

JUDGE:

Ann Lyons J

ASSISTING PSYCHIATRISTS:

Dr J Lawrence
Dr A Davison

FINDINGS AND ORDERS:

1. That the defendant was of unsound mind as described in the Schedule of the Mental Health Act 2000 (Qld) at the time of the alleged offences.

2. That the proceedings according to law against the defendant are discontinued and further proceedings must not be taken against the defendant for the acts constituting the alleged offences.

3. That a Forensic Order is not required.

CATCHWORDS:

MENTAL HEALTH – DECLARATION OR FINDING OF MENTAL ILLNESS OR INCAPACITY – where defendant charged with two counts of serious assault of a police officer – whether intentional intoxication contributed to the defendant’s mental state – whether defendant was of unsound mind as defined in the Schedule of the Mental Health Act 2000 (Qld) at the time of the alleged offences – whether a Forensic Order should be made – whether a non-contact order should be made

Criminal Code 1899 (Qld), s 27

COUNSEL:

D Shepherd for the defendant
J Tate for the Director of Mental Health
S Vasta for the Director of Public Prosecutions

SOLICITORS:

Legal Aid Queensland for the defendant
Crown Law for the Director of Mental Health
Director of Public Prosecutions (Qld)

A LYONS J:

1. This is a reference by Legal Aid Queensland filed on 17 May 2012 in relation to Sharlene Gray. She is charged with two counts of serious assault on 26 October 2010 when it is alleged that she seriously assaulted a police officer. On 12 June 2013, I delivered short reasons stating that I was satisfied that Ms Gray was of unsound mind at the time of the commission of the alleged offence. I indicated that I would give further, more extensive reasons in due course.  These are those reasons.

1. On 26 October 2010, police officers attended at Ms Gray’s residence at about 4.00 am after a disturbance was reported. Police found Ms Gray inside the residence and two distressed young girls standing outside. They were Ms Gray’s twin daughters. Police reported that Ms Gray looked dishevelled and her gaze was fixated on the front door. Police indicated she did not appear to be cognisant of where she was or who they were and when they attempted to engage with her, she yelled “It’s a conspiracy, you’re all out to kill me.” When the officers identified themselves this did not reassure her. Police noted that the words “help me” had been written on the walls. As one of the police officers approached Ms Gray with a cup of water, she lifted a mirror and smashed it over the officer without warning. She then grabbed a piece of glass from the mirror. During a struggle to restrain Ms Gray, a police officer received lacerations to his face, a bite to his wrist and two fractured ribs.

The psychiatrists’ reports

1. The Court has the benefit of a number of reports, including reports of Dr Mark Schramm and Dr Ken Arthur. Dr Schramm in his report noted that Ms Gray suffered years of abuse and had a horrendous violent relationship with her partner during her 20s. He considered that Ms Gray endured significant psychological damage as a result of marked emotional and physical abuse during her childhood, adolescence and into her adult life and has suffered for years from chronic and marked psychological dysfunction. He stated that she was quite emotionally immature and with less than a robust ability to deal with life’s stressors. He considered that she suffered from post traumatic stress disorder and that the effect on her functioning is such that it may be considered that she should be diagnosed with personality disorder with borderline and dependent traits.

1. Dr Schramm considered that Ms Gray was suffering from a psychotic episode at the time and his provisional diagnosis was of a brief psychotic episode. He stated:

“The best I can suggest at this point is that, made vulnerable to regressing into primitive thinking styles (including paranoia and essentially psychosis), in the weeks leading to the offences Ms Gray had endured an inordinate amount of stress such that she was experiencing an exacerbation of her tendency to severe anxiety as part of her PTSD. Adding further to the precariousness of her mental state, she had consumed (presumably) a psychogenic amphetamine like substance (ecstasy) about 24 hours or so beforehand. (I note here that I am relatively reluctant to suggest that this psychotic episode can be neatly explained by a drug induced psychosis, given what seems to be an absence of such states occurring during her not insignificant experience with such drugs.) In the 72 hours prior to the offences, she seems to have had little sleep, occasionally slipped into interpreting things in a paranoid way and was overwhelmed with events associated with her socialising as part of her birthday. It seems that, if she was in some psychotic like state at the hotel and prior to the offences (as [A’s] account may imply on 15/10/10 and 23/10/10), by the time she returned home she was not in such a florid state (if her account and that of [A] is to be believed). Upon waking suddenly in the hours prior to the offences, she has, for reasons which I cannot clearly understand myself, suddenly entered a panicked state and within that state regressed to a style of thinking which can only be considered psychotic. The description by the officers and that is evidenced on the video footage only seems to confirm that she was in such a state.

This psychotic state resolved within hours (coinciding with her cessation of panic) and without use of antipsychotic medication. If her history is correct, she has remained free of frank psychosis since.”[1]

[1]Report of Dr Schramm dated 29 August 2011, at pp 20-21.

1. Dr Schramm stated that he had no hesitation in concluding that this psychotic state prevented her from reasoning with any degree of sense and composure and that she should be considered to be deprived of the capacity to know the wrongness of her actions in relation to the assaults on the officers. Dr Schramm considered that a brief psychotic episode would be a “mental disease” for the purposes of s 27 of the Criminal Code 1899 (Qld). Dr Schramm indicated that the question of intoxication clearly needs to be considered but that the only evidence available, that is, Ms Gray’s own account, was that she had not consumed any drug (ecstasy or amphetamine) for over 24 hours prior to the incident. Dr Schramm considered that even if the drug had precipitated the episode and contributed to her disturbed mental state in some way, he did not believe it should be considered intoxication. He considered that the intoxicating effects from amphetamine-like substances including ecstasy would not last as long as 24 hours.

1. Dr Arthur in his report concluded that it was likely that Ms Gray was suffering from some form of mental disorder at the time of the alleged offences and it was most likely that she suffers from chronic symptoms of post traumatic stress disorder. He considered that at the time of the alleged offences, she displayed evidence of grossly distorted thinking and illogical, aggressive behaviour and it is more likely than not that Ms Gray was not able to reason with a moderate degree of sense or composure.

1. Dr Arthur indicated however that he could not discount the possible effects of substances. Dr Arthur indicated that a reasonable explanation of events was that Ms Gray experienced a number of significant stressors in the weeks leading up to the alleged offences in the context of personality vulnerabilities and possible post traumatic stress disorder. She then proceeded to take an unknown quantity of unknown drugs over a period of time and the combined effect of those factors, he believes, led to some brief psychotic symptoms. He considered that from the history provided, it is difficult to determine whether Ms Gray was intoxicated or simply suffering from residual or withdrawal effects of the unknown drugs she had taken. Dr Arthur considered it difficult to disentangle the relative effects of the various contributing factors. He considered that one explanation would be that her substance use contributed to her brief psychotic state which deprived her of the capacity to know she ought not do the act due to her highly paranoid state.

1. Dr Arthur considered however that the most likely explanation is that Ms Gray’s behaviour was a consequence of predominantly personality-based factors combined with substance abuse which resulted in her brief pseudo psychotic symptoms. As such, he considered that whilst her capacity to know she ought not do the act was impaired, he does not believe she was deprived at the time of the alleged offences.

The advice of the assisting psychiatrists

1. Dr Lawrence noted that both reporting psychiatrists considered that Ms Gray suffered from a brief psychotic episode or brief reactive psychosis but Dr Lawrence advised that she was concerned by the absence of “firm facts” and the lack of reliability of the information provided in relation to the quantity of drugs used and the effects of those drugs. Dr Lawrence acknowledged that the behaviour itself clearly qualified as psychotic but she was unable to advise with the relevant degree of certainty that Ms Gray was suffering from a mental illness at the time. Dr Lawrence advised:

“So to me, whilst it is feasible, I think that coming to that conclusion that these are brief psychotic episodes themselves which is fraught with uncertainty to me.  It’s certainly possible but whether it is probable is another matter.

So I can’t advise, with any degree of certainty, but more probably than not, at the relevant times this lady was suffering from a mental disease.   Then, if you are to pursue this, the various arms of the defence, I’m therefore uncertain that I could advise that she definitely had a mental illness.  That mental illness, of course, to achieve a unsoundness defence, has to deprive of capacity and whilst the total circumstances, I think, operating would certainly suggest there is some impairment of capacity but I can’t say that she was deprived of that capacity, nor can I postulate with absolute certainty that there was, for instance, I think she may have had some impairment of reasoning – she wasn’t controlling her behaviour terribly well – but that could be due to a range of other factors.
Finally, we come to the issue of the drugs, and I think they are a central thing, but we really don’t know what she took.”[2]

[2]T1-52, at ll 22-39.

1. Dr Davison however advised that both reporting psychiatrists agree that Ms Gray had a vulnerable personality, that she suffered considerable trauma in her childhood and early adulthood and that they considered that a “brief psychotic disorder associated with stressors or brief reactive psychosis would be a way of understanding the condition on the day the offences took place.”[3] Ultimately, Dr Davison was persuaded by the completeness of Dr Schramm’s report and was satisfied that Ms Gray was suffering form a mental disease at the time and that given she had not consumed drugs for at least 24 hours, she was not intoxicated at the time. Dr Davison concluded:

“I tend to favour Dr Schraum’s (sic) position and I feel more comfortable than Dr Lawrence in accepting the diagnosis of brief psychotic episode and accepting that there may have been – there, in probability according to Dr Schraum (sic) – that evidence – was in deprivation of capacity.”[4]

[3]T1-53, at ll 17-19.

[4]T1-54, at ll 11-14.

Was Ms Gray of unsound mind at the time of the alleged offences?

1. On the basis of the evidence of Dr Schramm and the advice of Dr Davison, I accept that the evidence indicates that Ms Gray was psychotic on 26 October 2010 and that Ms Gray was suffering from a mental disorder. I accept the advice of Dr Davison and reports of Dr Schramm and Dr Arthur, that there was a brief psychotic episode on the background of complex post traumatic stress disorder and the stressors in her life. I note Dr Lawrence’s reservations as to whether a brief psychotic episode is a mental disease for the purposes of s 27 of the Criminal Code however the reports of both Dr Schramm and Dr Arthur indicate that a brief reactive episode does qualify as a mental disease and I note Dr Davison’s advice in this regard. On the basis of those reports and that advice, I am persuaded that Ms Gray was suffering from a mental disease at the time of the commission of the alleged offences.

1. I accept that there is evidence that Ms Gray was deprived of the capacity to know what she was doing was wrong.  The question is ‘what was the cause of that deprivation’?  There is no doubt that Ms Gray ingested illicit substances.  The evidence is that 48 hours before this incident, there was the ingestion of half an ecstasy tablet and possibly some speed, also of a small amount.  In my view, there is no evidence that Ms Gray was acutely intoxicated.  The question is whether the substance that she took contributed in any degree to her state of mind.  I note that ingestion does not equal intoxication.  Was this psychosis which resulted, a result of a mental illness, or was it contributed to any degree by the substances? 

1. The question is whether the Court can be satisfied that the state of mind resulted from intoxication on the balance of probabilities?  On balance, on the evidence before me, I accept that the evidence indicates there was ingestion 48 hours beforehand but there is no evidence that she was intoxicated.  I am not satisfied on the balance of probabilities that she was therefore intoxicated.  I am satisfied therefore that Ms Gray was of unsound mind at the time and that she was deprived of the capacity to know that what she was doing was wrong. 

Is a Forensic Order required?

1. The evidence is that Ms Gray experienced a brief psychotic episode which Dr Lawrence notes “by definition, resolves of its own accord”. Dr Lawrence indicated that there had been no previous episodes and none since. Dr Lawrence advised that whilst it would be prudent for Ms Gray to seek psychiatric treatment given her traumatic background and previous drug use, she could not advise that a Forensic Order was warranted in this case. Dr Davison agreed with that advice.

1. Whilst the subject offences are serious and concerning, I note that the offences occurred three years ago and Ms Gray has had no significant criminal history. Ms Gray reached the age of 38 with one minor drug offence and she is now over 40. She has also undertaken counselling in the last two and a half years. I accept that the current offences resulted from a particular constellation of factors.

1. There should however be a non contact order which requires that Ms Gray not initiate any private contact with the victim.

ORDERS:

1.   That the defendant was of unsound mind as described in the Schedule of the Mental Health Act 2000 (Qld) at the time of the alleged offences.

2.   That the proceedings according to law against the defendant are discontinued and further proceedings must not be taken against the defendant for the acts constituting the alleged offences.

3.   That a Forensic Order is not required.