Re Hersbach
[2007] QMHC 28
•11 July 2007
MENTAL HEALTH COURT
CITATION: | Re Hersbach [2007] QMHC 28 |
PARTIES: | REFERENCE BY THE DEFENDANT’S LEGAL REPRESENTATIVE IN RESPECT OF KERRY-ANNE HERSBACH |
PROCEEDING NO: | No 0200 of 2006 |
DELIVERED ON: | 11 July 2007 |
DELIVERED AT: | Brisbane |
HEARING DATES: | 11 July 2007 |
JUDGE: | Philippides J |
ASSISTING PSYCHIATRISTS: | Dr J F Wood |
FINDINGS AND ORDERS: | 1. 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 offences; 2. The defendant is fit for trial; 3. The proceedings against the defendant are to continue according to law. |
CATCHWORDS: | MENTAL HEALTH – DECLARATION OR FINDING OF MENTAL ILLNESS OR INCAPACITY – where defendant charged with multiple counts of fraud and possession of tainted property – where there was no evidence that the defendant was suffering from a psychosis at the relevant times – where expert opinion differed as to whether the defendant was suffering from hypomania during the period of alleged offending – whether the defendant was deprived of any of the relevant capacities so as to be of unsound mind as described in Schedule 2 of the Mental Health Act 2000 (Qld) at the time of the alleged offending – whether the defendant was fit for trial |
COUNSEL: | J Farmer for the defendant G Cash for The Director of Public Prosecutions |
SOLICITORS: | Legal Aid Queensland for the defendant The Director of Public Prosecutions (Qld) |
PHILIPPIDES J: Kerry-Anne Hersbach is charged with multiple counts of fraud and passing valueless cheques over the period from 16 February 2006 to 4 June 2006. There are also two counts of possession of tainted property on 18 April 2006 and 29 May 2006. The list of charges is contained in the schedule of offences (Exhibit 1). The alleged offences include obtaining a Toyota valued at some $65,000 from a Toowoomba dealer, and obtaining a Prado valued at about $74,000 from a Dalby dealer - both by fraudulent means. The defendant has a past history, which includes offences of dishonesty.
The defendant allegedly perpetrated many of the fraud offences by opening an ANZ account on 15 February 2006 with a deposit of $308. The account was closed by the bank on 15 May 2006 after about 49 dishonest cheques were passed to the value of some $228,000. The defendant's treating psychiatrist since October 2006 has been Dr Phillipson, who provided reports to the Court and gave oral evidence. He diagnosed the defendant with bipolar disorder, mild agoraphobia and borderline personality traits.
The defendant described to Dr Phillipson episodes that could last from three to four weeks during which she said she was, "On the go all the time, not sleeping and always doing things." She said that she could experience these types of episodes up to six times per year. She described being happy, over-confident, obsessive and having racing thoughts during such elevated episodes. She would buy things for her children and husband that she did not really need. She also described, "Down times", during which she was very depressed with no interest in her appearance, poor motivation and excessive sleep. Dr Phillipson noted that the prison mental health service had placed the defendant on Zyprexa while in prison and that there were notations in the records of "Symptoms highly suggestive of manic depression".
Dr Phillipson did not, throughout his treating the defendant, observe any manic or hypomanic state. However, his opinion, largely based on the defendant's history, was that the defendant was, on the balance of probabilities, hypomanic and deprived of the capacity to control her actions in relation to the matters before the Court. He therefore supported a defence of unsoundness of mind in relation to all of the charges.
However, in giving oral evidence he acknowledged the possibility of a fluctuation in the capacity of control over the 15 week period of the alleged offending, in which case he accepted that it would be difficult to know at what points over the relevant period the defendant was totally deprived as opposed to impaired. In addition he accepted that an alternate explanation for the defendant's conduct might be deliberate conduct and that a number of the purchases made by the defendant in the relevant period were inconsistent with her statement that she was wanting to shower her family with gifts, i.e. purchases of groceries, meat, medical expenses and child care expenses. He also accepted when asked by Dr Lawrence that an alternate explanation for the defendant's behaviour could be seen in terms of impaired judgment and conceded that if the defendant was hypomanic at the relevant time one would have expected the defendant's husband to have noticed a change in behaviour which he had not done.
Dr de Leacy saw the defendant on one occasion on 7 July 2006. He provided two written reports stating that he considered at the time of the alleged offences the defendant was hypomanic. He considered that the history given to him by the defendant was characteristic of bipolar disorder. Initially he considered that the defendant's reported belief as to her having access to money to meet the debts incurred was delusional. However he subsequently revised that opinion and considered that the conduct could be seen as reflecting disorganised thinking rather than delusions, particularly in relation to the loan application, the opening of the bank account and making arrangements to purchase the Prado car.
In his report he opined that the defendant had a tenuous grasp on reality and was deprived of the capacity to understand the nature of her actions and to know that she ought not do the acts. However it is fair to say that in his oral evidence he was considerably less emphatic. He accepted that at the time of the interview given by the defendant to the police she was no longer deprived of the capacities to understand and to know. But he put that down to the "sobering" effect on her of being interviewed by police.
It is also true to observe that in his oral evidence he at one stage described the defendant's condition over the relevant period as being, perhaps "mildly hypomanic" and he acknowledged that his initial opinion as to unsoundness was based essentially on the defendant's own self reporting and that there was no independent corroborative evidence to her symptoms. In this regard, he also accepted that it was unusual for a family member not to notice a change in behaviour reflective of hypomania. Given that the only evidence for hypomania was the defendant's own account, and where, as Dr de Leacy accepted was possible in the present case, a dishonest motivation for the alleged conducted was an available explanation and particularly where there was a prior history of offences of dishonesty, Dr de Leacy expressed, ultimately, an ambivalent position in relation to his initial views as to unsoundness of mind throughout the relevant period.
Dr Venugopalan saw the defendant on 1 December 2006. His primary diagnosis was borderline personality disorder. Based on the history given to him by the defendant and some observations of Dr de Leacy derived from the prison health reports of the defendant, he also made a secondary diagnosis of bipolar disorder. However, it is fair to say that Dr Venugopolan's view was that the behaviour in question ought to be seen in terms of a borderline personality disorder. He also observed that the reports of self harm on 8 June were inconsistent with a view that at the relevant times the defendant was operating under hypomania. But in any event, Dr Venugopalan concluded that it was unlikely that the defendant was deprived of any of the relevant capacities during the period of the alleged offending. He noted that there was no evidence to suggest that the defendant was manic or severely depressed during the relevant period and that she functioned satisfactorily in relation to her day to day living. In his view, the long duration of the alleged offending, combined with the prior history of dishonest offending and the lack of any independent corroboration, for example, from the husband, militated against the view that there was deprivation. He saw a degree of planning in relation to the defendant's conduct which was also inconsistent with a deprivation of control.
The view of the assisting psychiatrists is that the opinion of Dr Venugopalan ought to be preferred over that of Drs Phillipson and de Leacy. That is also the view that I take.
I note that there is no evidence of psychosis during the relevant period. The highest that the defendant's condition is ultimately put by those representing her was that she acted while suffering hypomania. In this regard I note as significant the considerable qualification which Dr de Leacy placed when giving oral evidence on his initial opinion as to the defendant's state of mind at the relevant times, and his ultimate view that he was now ambivalent about his initial opinion. I also note that even Dr Phillipson acknowledged impaired judgment as opposed to deprivation was an alternate explanation for the defendant's conduct.
Even accepting that the defendant suffered from hypomania over the relevant period I cannot be satisfied to the requisite degree that the defendant was deprived of any relevant capacity. The degree of planning and deliberateness in setting up the ANZ account and in obtaining the loan as well as the prosaic nature of many of the purchases during the relevant period do not sit well with the view that the defendant was suffering a total deprivation of the capacity to control her acts and was acting impulsively over the relevant period.
Furthermore, the defendant's insight, revealed in the record of interview, as to the nature of her actions, acknowledging that they were dishonest and that, for example, at the time that she acquired the Prado car she did not believe she could satisfy the debt incurred are also inconsistent with a deprivation of understanding or knowing that she ought not do the acts and, in my view, as Dr Venugopalan opined, may be seen as reflective of her understanding not just at the time of interview but over the relevant period. I also observe in preferring Dr Venugopalan's opinion that there was no independent evidence suggestive of hypomania, nor of deprivation of capacity.
In those circumstances, I find that the defendant was not of unsound mind at the time of any of the alleged offences. I am satisfied that the defendant is fit for trial. The proceedings will continue according to law. I grant leave to the parties to refer to the reports before the Court in any further proceedings.
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