Re Heuer
[2011] QMHC 30
•24 May 2011
MENTAL HEALTH COURT
CITATION:
Re Heuer [2011] QMHC 30
PARTIES:
REFERENCE BY THE LEGAL REPRESENTATIVES FOR ERIC ROGER HEUER
PROCEEDING NO:
0190/09
DELIVERED ON:
24 May 2011
DELIVERED AT:
Brisbane
HEARING DATE:
22 March, 23 March, 5 May 2011
JUDGE:
Ann Lyons J
ASSISTING PSYCHIATRISTS:
Dr E N McVie
Dr FT VargheseFINDINGS AND ORDERS:
- That at the time of the alleged offences the subject of the reference, the defendant was not of unsound mind as defined in Schedule 2 of the Mental Health Act 2000 (Qld).
- That the defendant is fit for trial.
3. That the proceedings are to continue according to law
CATCHWORDS
MENTAL HEALTH – DECLARATION OR FINDING OF MENTAL ILLNESS OR INCAPACITY – where the defendant was charged with attempted murder – whether the defendant was of unsound mind as defined in Schedule 2 of the Mental Health Act 2000 (Qld) at the time of the alleged offence – if the defendant was of unsound mind, whether this condition was due to voluntary intoxication
COUNSEL:
J Briggs for the defendant
J Tate for the Director of Mental HealthB Campbell for the Director of Public Prosecutions
SOLICITORS:
Legal Aid Queensland for the defendant
Crown Law for the Director of Mental HealthDirector of Public Prosecutions (Qld)
ANN LYONS J:
Mr Eric Roger Heuer is charged with two counts of attempted murder on 18 November 2008 at Hervey Bay. It is alleged that in the early hours of the morning of 18 November 2008, Mr Heuer stabbed his two flat mates.
This is a reference by the legal representatives for Mr Heuer.
The factual background to the alleged offences
Mr Heuer’s account.
In his record of interview with police Mr Heuer stated that on the evening before the alleged offences he had been out with his flat mates at a poker event at the local golf club and had consumed two cans of rum. He stated he had not had any drugs since he arrived back in Australia six months earlier but that he had used drugs including cocaine in the past. After they finished playing cards, he told police they all arrived home after midnight then had a meal together and watched TV. He told police that he had a bit of a sleep in front of the TV and just “felt down” and that “you feel down, when the world’s against you.” He referred to some text messages from his ex girlfriend banning him from seeing his daughter and to the fact he had had a “bit of an argument with my mum and dad.” He said he looked at the text messages after the sun was up and that he then tried to kill himself by grabbing a noose and going to the garage. When the noose broke he tried again but then went to the beach. He gave no details about the stabbing of his flatmates.
The victims’ accounts
One of the victims, Robin Drury, stated that he went to sleep about 2.30am and the next thing he recalled was getting hard blows to the back of his head. He realised he was being cut with a knife and he felt about six blows. He managed to get away and dashed towards the front door. He screamed out to his other flat mate for help. The defendant is alleged to have said, “What are you doing idiot? I’ve locked all the doors. You’re not getting away”.
Mr Drury states that he saw that Mr Heuer was using a knife from the kitchen block and that he lunged forward with his right hand holding a knife and stabbed him quickly twice to the left shoulder. Mr Drury said that Mr Heuer then stabbed him in the back and the back of his neck as he walked up the stairs to get away. When he got to the top of the stairs his other flat mate, Rodney Pettit, pushed him inside and got between him and Mr Heuer. Mr Drury says he managed to jump over the balcony of his room. He then stumbled into his neighbour’s patio.
Mr Drury stated that Mr Heuer had been living with them for approximately two weeks and had paid them $100 by way of rent but was in arrears. They were then pressuring him to pay the balance but he was always full of reasons as to why he could not pay.
Mr Drury stated that there were two strange incidents which occurred whilst Mr Heuer was staying with them. He states that about a week after he commenced staying with them Mr Heuer went to a friend’s place and got two lengths of rope. He subsequently observed that Mr Heuer had tied a noose in the rope. He told him that he got the rope to tie down furniture in the back of his ute. Mr Drury also stated that on an occasion prior to the stabbing, the defendant had said to Rodney “You’re pissing me off. Bring the knife with you so I can stab you”. Mr Drury said he took it that the defendant was joking about stabbing Rodney.
Mr Drury said that in the time he had known Mr Heuer he did not recognise or see any other strange or odd behaviour from him that would alert him that something was wrong. Mr Drury indicated however that it was unusual that on the day of the stabbing all of the doors to the unit were locked because he only occasionally locked the doors. He stated that he had definitely not locked any of the doors in the unit on the evening before the stabbings. Mr Drury sustained 13 life threatening stab wounds mainly to the jaw, neck and shoulder area.
The other occupant of the unit, Rodney Pettitt, was 20 years of age. He had known Mr Heuer for about three months and had met him playing poker at Hervey Bay. Mr Pettitt stated that Mr Heuer owed them approximately $600 in rent. He confirmed that they had all played poker together the night before and had come home about midnight, had dinner and gone to bed.
He stated that in the early morning of 18 November, he woke up to yelling and he saw his flatmate with blood on his chest, asking him to help him. He saw Mr Heuer with a knife and saw him stab Mr Drury in the right shoulder. As Mr Drury went up the stairs he saw Mr Heuer stabbing him in the back. He then put Mr Drury in his room and shut the door to protect him. As he turned around and went back downstairs Mr Heuer stabbed him in the abdomen once. Mr Pettitt then managed to get the knife out and he threw it across the room.
Mr Pettit was then head butted in the nose by the defendant, but he managed to push him against the wall. The defendant subsequently held Mr Pettitt down and kneed him in the left eye and punched him in the right eye. Mr Pettitt asked the defendant what was wrong and he said, “They’re going to kill me, they’re going to get me”. He said that the defendant said this about three times. He then said he needed a phone to ring the police. He came back to Mr Pettitt saying he could not find the phone.
Mr Pettit then managed to get next door to the neighbour’s unit. Mr Pettit sustained a stab wound to the abdomen with a lacerated liver as well as a left ear laceration and a contusion to his nose. The liver laceration was life threatening.
The neighbour indicated that she saw a shirtless man outside of her unit with a rope tied around his neck. He said to her, “You’re now involved … Let me in. I’m going to finish them off”.
Mr Heuer was later found by police shortly after 9.20am in the shallows of the beach with a rope tied around his neck and with a knife. He was interviewed by police at 2.15 that afternoon and indicated he had no memory of the attack on the two men.
Mr Heuer told police that he was able to recall waking that morning and reading a rejecting text message from his ex-partner and the mother of his daughter, in which she informed him she did not wish to have any further contact with him or for him to contact the child. He described feeling suicidal and stated he could recall attempting to hang himself in the garage of his residence. He claimed to have harboured no animosity towards the victims and he denied consuming alcohol or any substances prior to the incident or at any time on the day of the incident.
Mr Heuer was not considered to be in an abnormal state of mind by police during the interview. Police indicated he was able to understand and obey instructions at the time he was apprehended.
The chronology of events is not clear but the evidence suggests that he probably attacked his victims before attempting to hang himself. There is some evidence that Mr Heuer may have made two attempts to hang himself. As there was blood on the walls of the garage where he did attempt the hanging at least one attempt was probably after the stabbings.
The various witness statements provide evidence that Mr Heuer had a longstanding history of alcohol and substance abuse, as well as a long history of telling lies about himself. Both his flatmates believed he was an ex SAS soldier who was on stress leave. He apparently owed his parents over $50,000 at the time of the alleged offences and he often gambled. He was also experiencing relationship instability and rejection. Furthermore, it would seem clear that he had only recently moved in with the two victims and was quickly in arrears in relation to his rent.
Dr Fama’s report dated 16 July 2009
Dr Fama in his report dated 16 July 2009 noted that Mr Heuer agreed that he was a habitual, grandiose liar with false stories of having worked in the Australian Army and with the Red Cross in Cambodia. Dr Fama stated that Mr Heuer did not recall the conversation in which he jokingly told Rodney he was going to stab him. He also stated that to the best of his recollection he had a positive friendship with both of his flatmates. Dr Fama noted that Mr Heuer stated that he had tried to hang himself in the apartment’s garage but it is not certain at what stage that would have happened. Dr Fama concluded that from what the defendant told police and from the rope that was dangling around his neck it was after the offences not prior to them that they probably occurred.
Dr Fama considered that Mr Heuer’s last intake of alcohol was the evening before and that the stabbings occurred around nine hours after he had stopped drinking. Dr Fama considered there is no evidence of either alcohol or drug intoxication, nor did he consider that substance withdrawal could account for his abrupt, grotesque out-of-character brutality. He considers that Mr Heuer has a genuine amnesia about the offences.
Dr Fama considered that Mr Heuer had neurasthenic alcohol dependence syndrome, cocaine dependence syndrome and prolonged depressive reaction. Dr Fama considered that at the time of his offences the history indicates that Mr Heuer was afflicted further by an abrupt delusional disorder. Dr Fama considered that the abrupt delusional disorder is the best diagnosis that can explain the defendant’s extraordinary behaviour in the context of recent drinking but in the absence or ongoing intoxication or of alcohol withdrawal features. Dr Fama referred to the description in the ICD-10 as follows:
“A cluster of psychotic phenomena that occurred during or immediately after psychoactive substance use and I characterise by vivid hallucinations (typically auditory, but often in more than one sensory modality), misidentifications, delusions and/or ideas of reference (often of a paranoid or persecutory nature), psychomotor disturbances (excitement or stupor), and an abnormal affect, which may range from intense fear to ecstasy. The sensorium is usually clear but some degree of clouding of consciousness, though not severe confusion, may be present. The disorder typically resolves at least partially within 1 month and fully within 6 months.”
Dr Fama considered that this delusional disorder is transient and unlikely to occur unless he were to resume the use of alcohol or substances. Dr Fama considered that Mr Heuer has a defence of unsoundness of mind for both charges. However Dr Fama also stated in his evidence to the Court that an alternate diagnosis was an alcohol precipitated exacerbation of a chronic schizophrenic process and agreed that alcohol would aggravate schizophrenia as would any drug.
In response to questioning from Mr Tate about the deprivation of the relevant capacities Dr Fama stated that he considered that the psychosis by itself would have been sufficient in itself to deprive him of the two capacities of control and of knowing that he ought not do the act but that if there was intoxication were it contributed to the capacity of control. He did not consider that intoxication would have contributed to the deprivation of cognitive capacity.
He also considered that he was fit for trial.
Dr Grant’s report dated 27 January 2010
Mr Heuer told Dr Grant that he had had about three cans of mixed alcoholic drinks the evening before and may have had some red wine and vodka on his return home. He stated he had not used any drugs that day, although he may have used amphetamines four to five days before. He also told Dr Grant of the text messages from his ex-partner and of his feeling suicidal and placing a noose around his neck but the rope broke. He told Dr Grant he did not recall making a second noose or finding a second rope.
Mr Heuer stated to Dr Grant that he had no memory of stabbing his friends. He also said he did not believe he did the stabbing prior to hanging himself because he believed he still had clothes on when he tried to hang himself and he had less clothes on and had blood on him when he was arrested. He told Dr Grant that he could not recall any paranoid thoughts involving his friends or ideas of reference on the day or night prior to the offences. He stated that he was paranoid and suspicious about other people’s behaviour in the weeks prior and that he was getting mixed messages from the TV. Dr Grant said there were no reports of blackouts after heavy drinking and he also noted that Mr Heuer was a pathological liar.
Dr Grant diagnosed a mixed personality disorder with paranoid avoidance and dependence traits as well as alcohol dependence, cocaine dependence and an adjustment disorder with anxiety and depressed mood secondary to a number of stressors in his life. Dr Grant also noted he had no past history of violent behaviour and no obvious motive for such offences. He considers that it is most likely that it was an alcohol induced psychotic disorder.
Dr Grant noted however that it was difficult coming to a clear diagnosis given that Mr Heuer has a history of pathological lying and has been an unreliable historian. He also noted that he had a history of lying to avoid getting into trouble. He considered that it would be wise to exercise caution in accepting the history that Mr Heuer had given.
Dr Grant stated that given those diagnostic uncertainties his conclusion in relation to unsoundness was somewhat speculative. He stated:
“If indeed Mr Heuer was suffering from an alcohol induced psychotic disorder, he may have had paranoid delusions and felt under severe threat. However, as discussed above, it is not clear whether the actual victims were perceived as those who were threatening him. However, if he was indeed suffering from a sudden acute psychotic disorder, on the balance of probabilities it is likely that he was deprived of the capacity to know that he ought not do the act and the capacity to control his actions.”
Dr Grant noted that the information Mr Heuer gave in relation to intoxication is variable because he told him that he may well have had red wine and vodka on his return home but that he told Dr Fama that he had not had alcohol for about nine hours prior to the offence. He considers that there was variation in the information about alcohol consumption. Dr Grant noted that no measure of the level of alcohol was taken at the time he was arrested and there is no objective evidence in relation to intoxication. He also stated there is no objective evidence that Mr Heuer took amphetamines at the time although he said he did take them some four days earlier. Dr Grant noted that Mr Heuer told him that he may well have had the vodka and the red wine in the early hours of the 18th, that is, immediately before the offences. Dr Grant stated that it may well be, given Mr Heuer’s history, that at the time of the offences he was intoxicated with alcohol and that the intoxication would explain the amnesia.
Dr Grant noted that Mr Heuer was in the habit of using alcohol to settle early morning symptoms of anxiety and tremor related to his drinking. He considered the unreliability of the history in relation to intoxication makes a determination of the effects of any such intoxication difficult. Dr Grant also noted that Mr Heuer was in the habit of drinking a bottle of spirits daily and would have generally been in a chronic state of intoxication. On the day of the offences, he might have been in a similar state of intoxication or he may have been in a state of partial withdrawal. Dr Grant stated that this can be the kind of situation which triggers alcoholic hallucinosis and that without a clear objective measure of intoxication there could be a dispute of the facts.
Dr Grant was asked in oral evidence if he considered the alcohol induced psychosis was sufficiently severe on its own to deprive Mr Heuer of the capacity to know he ought not do the act irrespective of the amount of alcohol consumed. He stated that if he developed very prominent delusions and was very fearful and experiencing hallucinations then “that would probably be sufficient on its own to deprive him of the capacity to know he ought not do the act, but it’s very difficult to tease out what effects intoxication might be having at the same time.” He continued:[1]
“it's rather artificial to be separating out the capacities as you have outlined, you know, does it deprive him of control and not - and not - and not knowing or vice versa. And that's a little artificial and so it certainly, if he's intoxicated, it's having an effect on his mental status.”
[1]Transcript Day 1 p18 line 33
Dr Grant ultimately concluded:[2]
“So, in this case, whilst I said before the psychosis probably might have been sufficient to deprive him of knowing that he ought not do the act, you do have to take into account that alcohol onboard would be effecting his ability to reason and to respond logically to his ideas at the time. So, it is complex to work out whether or not alcohol is relevant to that capacity, but I think you'd probably have to say that if he has a sufficiently acute psychosis, that that would be sufficient to deprive him of that knowledge, whether or not he was intoxicated.”
[2]Transcript Day 1 p19 line
Dr Grant considered that Mr Heuer was fit for trial.
Dr Aboud’s report dated 24 February 2011
Dr Aboud also prepared a report dated 24 February 2011. Dr Aboud considered that it was difficult to be confident about a diagnosis given the complex clinical picture which was compounded by the inconsistent nature of elements of his reported history. He also noted there was a well established pattern of dissimulation and pathological lying. Dr Aboud was also concerned that Mr Heuer’s self-reported history may not be reliable and that it is possible he may have elaborated or malingered some symptoms in an attempt to obtain a favourable legal outcome. Dr Aboud also considered it was significant that he did not mention his mental health symptoms and difficulties in his assessment at the High Security Inpatient Service. He stated that it may be relevant that memory problems do occur in those with severe alcohol abuse disorders.
Dr Aboud considered that in his opinion the longitudinal history supports a primary diagnosis of alcohol dependence and stimulants, (cocaine and amphetamine abuse) that were active at the time of his arrest. He also stated that from the history he would suggest that Mr Heuer also had a cannabis abuse disorder. Dr Aboud also considered that Mr Heuer had an additional diagnosis of Mixed Personality Disorder with prominent paranoid traits, but with some anxious-avoidant emotionally unstable, histrionic and antisocial traits.
Dr Aboud noted the current diagnosis of schizophrenia in prison and considers that whatever true psychotic symptoms he may have experienced over the years would probably best be explained by his significant polydrug use and likely chronic intoxicated state. He considered that his periodic mood disturbance, his low self-esteem and occasional suicidal thoughts are manifestations of his personality pathology as impacted upon by psycho social stressors.
Dr Aboud also considered that the diagnostic issues pertaining to the time of the offences are also more complex. He considers that the most likely causes of his amnesia are seizure, head trauma, alcohol, (via intoxication or Korsakoff’s syndrome), other organic conditions, dissociation (psychogenic). He noted that the amnesia is for his attack on the victims, but not for the events before or just after. Dr Aboud noted that Mr Heuer believes that he attempted to hang himself before the attack and it is possible therefore that he hit his head or suffered anoxia such that he was amnesic. He stated that the victim witness statements however do not describe the rope being around his neck as later seen by police which strongly suggests that the attack occurred first.
Dr Aboud concluded that it is most likely in his opinion that his amnesia is alcohol related. He stated that intoxication would explain his violence more so than Korsakoff’s syndrome. He also considered that it may be significant therefore that he disclosed to him on interview on 23 April 2010 –
“that he had in fact consumed alcohol on the morning of the 18/11/08 just prior to the index offences. Pathological Intoxication, which can occur from ingestion of only one or two drinks and has associations with dramatic behavioural changes (including extreme violence) and partial or even total amnesia, must also be considered as a plausible explanation of the events at the material time.”
Dr Aboud noted that the evidence for psychosis is partly the seemingly out of character violence and the sheer frenzy of the attack, as well as the witness statement by one of the victims that during the attack he said “they’re going to kill me, they’re going to get me”.
Dr Aboud stated that the information available indicates a man who was broadly mentally stable and not overtly psychotic right up to the night before the offences and similarly only a few hours post offence during police interview. Dr Aboud considered the most likely explanation of a psychotic reaction would be an alcoholic hallucinosis or an alcohol induced psychotic episode. In his view the psychosis being secondary to a schizophrenic illness, an affective disorder, other substances or an acute confusional state is unlikely.
In relation to the question of unsoundness of mind, Dr Aboud considered it was unclear whether he was of unsound mind at the time of the offences. He considers his claim of amnesia may or may not be genuine and that other than his extremely violent behaviour the only evidence truly suggestive of psychosis were the statements that they were going to kill him.
Dr Aboud considered that there was insufficient evidence to make a diagnosis of a psychotic disorder. In any event, he considered that it was incongruent that he would cite a fear that others wished to harm him as a reason to attack unarmed, sleeping victims. He was also aware of the fact that Mr Heuer laughed at one of his victims and said “What are you doing idiot? I’ve locked all the doors”. Dr Aboud considered that this suggests that he understood what he was doing and could control his actions, as well as suggesting premeditation. Dr Aboud considered that there were other possible reasons for the violent behaviour, such as intoxication by alcohol and stimulant drugs, displaced anger towards his ex-partner’s text, his victims’ concern that they were owed money, the fact that there was some suggestions of premeditation due to some disharmony with his co-residents, the purchase of a rope and his prior statement about a knife.
Ultimately, however, Dr Aboud indicated that there was not sufficient evidence to robustly form the view that Mr Heuer was of unsound mind. He was not convinced that he was suffering from a mental disease or natural mental infirmity. However, he conceded that he was most likely not able to reason with a moderate degree of sense and composure. Accordingly, if it was decided that he was suffering from a mental disease then he would consider he was deprived of the capacity to know that he ought not do the acts.
In relation to the question of intoxication, Dr Aboud stated that there was a history of heavy alcohol consumption of a bottle of spirits a day before his arrest. There was also a pattern of dependence whereby he would consume alcohol in the morning to offset withdrawal symptoms. He considered it would be unlikely for Mr Heuer to have found himself in a state of heightened emotional distress without using alcohol.
Dr Aboud also considered it was significant he did disclose alcohol consumption on the morning when interviewed by him. He also noted that this disclosure was not consistent with the information he previously provided to other psychiatrists. He also stated that Mr Heuer had given inconsistent accounts of his substance abuse telling other psychiatrists that he had not used cocaine for three months prior to the offence, yet disclosing to Dr Aboud that he had engaged and continued in rather heavy use. Dr Aboud stated it was also uncertain when he last used amphetamines.
Regarding the issue of intoxication, Dr Aboud considered that on the balance of probabilities, it is more likely than not that he was intoxicated by alcohol possibly even combined with stimulants. He also stated that the intoxication may have been a pathological intoxication and the Court may need to consider whether such intoxication would be viewed in the same way that the ordinary variant is viewed for the purposes of the insanity defence.
In relation to a dispute of facts, Dr Aboud considered that it is uncertain whether Mr Heuer suffers from a mental illness such as schizophrenia. There is also uncertainty as to whether he was suffering from psychosis at the time and there is also some uncertainty with respect to alcohol consumption and whether he took substances in the lead up to the offences.
Dr Aboud considered that it is likely that the Court might consider this to amount to a disputed material fact upon which key diagnostic issues, relating to unsoundness and intoxication, rest. Dr Aboud considered Mr Heuer was fit for trial.
Dr Calder-Potts
Dr Calder-Potts is Mr Heuer’s current treating psychiatrist at the Maryborough Correctional Centre and has been treating him for the last two years. Dr Calder-Potts stated that initially he considered that Mr Heuer had a significant personality disorder but it became apparent that he was extremely withdrawn and depressed. He stated that his depression did not resolve, he remained quite withdrawn and was ‘paranoid and isolative’. He was also considered to be a suicide risk. Dr Calder-Potts stated that he withdrew almost totally into his cell fearful that people were plotting against him. He stated that “he always appeared fearful and distressed”. Because of those factors he was commenced on Olanzapine.
Dr Calder-Potts stated that since the introduction of that medication he has made ‘fairly consistent improvement’. His demeanour has also improved and he is now interacting with staff and other prisoners. Dr Calder-Potts also said that Mr Heuer’s auditory hallucinations have also reduced in intensity since he commenced on Olanzapine.
Accordingly Dr Calder-Potts told the Court that because of that history he was in two minds as to whether Mr Heuer had a psychotic depression which has since resolved with treatment of an antidepressant and an antipsyschotic or whether he has always had an underlying schizophrenia. On balance he considered that the primary diagnosis was schizophrenia because of his response to Olanzapine. Initially he was not convinced about Mr Heuer having schizophrenia prior to the trial of Olanzapine but had changed his mind as the result had been “fairly dramatic”.
The views of the Assisting Psychiatrists
Dr McVie
In summary Dr McVie noted that the three reporting psychiatrists clearly diagnosed Mr Heuer’s alcohol dependence, and cocaine and amphetamine abuse, although there was some dispute about personality disorder and other diagnoses. Referring to Dr Calder-Potts’ notes and Mr Heuer’s history of low-grade psychotic symptoms, intermittent voices and persecutory ideas, Dr McVie considered that Mr Heuer is likely to have a schizophrenic illness.
Dr McVie said that certain characteristics of the attack, including statements by Mr Heuer at the time, were consistent with a psychotic episode. Dr McVie noted that while Mr Heuer could recall the attempted suicide, he had no memory of the stabbings. However, Dr McVie considered that the exact nature of Mr Heuer's psychotic symptoms at the time of the offence was unclear. Whilst noting that Mr Heuer’s level of intoxication at the time of the offence was unclear, Dr McVie stated that Dr Calder-Potts' notes of 22nd July 2009 indicate that Mr Heuer reported that he drank a bottle of rum on the night of the offences.
Dr McVie stated:
“My advice would be that the intoxication with alcohol could have precipitated the psychotic episode which occurred in the context of intoxication. The time sequencing could be consistent with the intoxication and the effect of the alcohol wearing off and the alcoholic blackout itself is necessary to support that short period of amnesia. In the absence of intoxication it would be extremely difficult to explain the dense amnesia that he has for that particular period of time. It's extremely unusual for a psychotic episode to be associated with dense amnesia.”
Dr McVie ultimately did not recommend a defence of unsoundness of mind, due to Mr Heuer’s intoxication.
Dr Varghese
Dr Varghese advised that a psychosis is likely to have been present at the time of the offence, and he referred to Mr Heuer’s persecutory ideations. Dr Varghese discussed a number of possible alcohol-related diagnoses. Dr Varghese stated that alcoholic hallucinosis was possible although unlikely, as neither hallucinations nor alcoholic withdrawal were reported, and if in fact present, resulting from a decrease in alcohol in an alcoholic it would qualify as a disease of the mind rather than intoxication.
Dr Varghese indicated that alcoholic psychosis without hallucinations was unlikely given the abrupt onset and the abrupt remission and the amnesia, and if in fact present, resulting from a decrease in alcohol in an alcoholic it would qualify as a disease of the mind rather than intoxication. He also stated that alcohol induced psychosis could possibly explain the paranoid ideations and the amnesia, but would not be a disease of the mind as it would flow from intoxication.
Dr Varghese considered that the possible amnesia was likely to be related to intoxication, rather than a dissociative amnesia or amnesia related to any head injury secondary to the hanging.
Dr Varghese’s opinion was that the defendant is schizophrenic at present. He thought it unlikely, although not impossible, that Mr Heuer had schizophrenia at the time of the offence, and that the psychosis was an early or even first manifestation of schizophrenia. This was due to its abrupt onset, abrupt remission, the amnesia and the fact that no further psychosis was observed for several months. Dr Varghese also noted that there would be no defence if the psychosis was the result of intoxication.
Dr Varghese also raised the possibility that Mr Heuer had suffered a brief psychosis, consequent to psychosocial stressors. He said it could have been a first manifestation of schizophrenia. However, Dr Varghese noted that the nexus between stressor and reaction was not apparent, and considered that Mr Heuer’s intoxication was a confounding issue.
Although he did not expressly recommend its diagnosis, Dr Varghese said that if a finding were made that Mr Heuer was not intoxicated, then a brief psychosis, being the first manifestation of schizophrenia, could form the basis of a finding of unsoundness of mind.
Was Mr Heuer of unsound mind?
“Unsound mind” is defined in schedule 2 to the Mental Health Act 2000 (Qld) (the Act) in the following way –
“‘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.”
Relevantly 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.”
A reference to the Court is to be decided on the balance of probabilities as section 405 of the Act states:
“405 Proof of matters
(1) In the proceeding, no party bears the onus of proof of any matter.
(2) Subject to section 268, a matter to be decided by the Mental Health Court must be decided on the balance of probabilities.”
The Act also provides that the Court may not proceed to determine a reference if there is a dispute about a fact which is substantially material to the opinion of an expert witness as follows:
“269 Dispute relating to substantially material fact
(1) The Mental Health Court must not make a decision under section 267(1)(a) or (b) if the court is satisfied a fact that is substantially material to the opinion of an expert witness is so in dispute it would be unsafe to make the decision.
(2) Without limiting subsection (1), a substantially material fact
may be—(a)something that happened before, at the same time as, or after the alleged offence was committed; or
(b) something about the person’s past or present medical or psychiatric treatment.
Diagnosis
It is clear that Mr Heuer was considered by all psychiatrists to have a diagnosis of ‘alcohol dependence’ syndrome at the time of the stabbing. The assisting psychiatrist considered that the witnesses description of the offence as well as Mr Heuer’s statements that he thought others were trying to kill him are consistent with a psychosis. Dr Grant and Dr Fama also considered that that particular sequence of events did have a psychotic quality to it. I accept the advice of both the assisting psychiatrists that a psychosis was occurring at the time of the stabbings. I also accept as genuine Mr Heuer’s dense amnesia about the events surrounding the attacks.
Having considered the reports and oral evidence of Dr Fama, Dr Grant, Dr Calder Potts and the advice of the assisting psychiatrists I accept that Mr Heuer’s current diagnosis is most likely a diagnosis of schizophrenia.
Was Mr Heuer suffering from schizophrenia at the time of the alleged offences? Dr Varghese specifically addressed this issue in his advice as follows:[3]
“I'm inclined, your Honour, to the view that the defendant does suffer from schizophrenia, and that is consistent with this current treatment. That is he suffers from schizophrenia currently. The question then is did he have shizophrenia at the time of the offence on 18/11/2008, which is two and a half years ago? Did his psychosis then represent an earlier manifestation of schizophrenia, perhaps the first manifestation of schizophrenia?
My advice, your Honour, is that - is - is that if it did, then it is a most unusual presentation and not in accordance with the natural history of schizophrenia. I note, as has Dr McVie, the abrupt onset and the abrupt remission after a short period and the amnesia and then no further psychosis observed for several months while he was under observation. So it would be a very unusual first manifestation of schizophrenia, although not entirely out of the question.
One possibility is that a state of alcohol intoxication in a person with a prodromal schizophrenia resulted in the development of a psychosis, which remits in the absence of intoxication. You sometimes see this in apparently remitted schizophrenia and there is no reason to suppose that it would not occur in a prodrome of schizophrenia. This hypothesis of course, raises the issue of dispute of fact as to whether there was intoxication. If intoxication were present, then it would not - and there would not be a defence as it could not be said that the psychosis would have been operative regardless of the putative intoxication. Therefore, the hypothesis of a early manifestation of schizophrenia - if the hypothesis of an early manifestation of schizophrenia is accepted, there would be no defence if the manifestation was the result of intoxication.”
[3] Transcript Day 3 p 9
Whilst I accept that Mr Heuer was experiencing psychotic symptoms at the time of the stabbings I am not satisfied that there is sufficient evidence to support a finding that schizophrenia was actually present at the time of the stabbing. Accordingly the issue is whether the psychosis itself was sufficient to deprive Mr Heuer of any of the relevant capacities irrespective of the question of intoxication? In order to determine that question it is necessary to first consider the question of intoxication.
Dispute of fact?
Is there however a dispute of fact in relation to the issue of intoxication at the time of the stabbing such that it precludes this Court from making a decision in relation to the question of unsoundness of mind?
Whilst Mr Heuer denied alcohol consumption on the day of the stabbing in his interview with police and subsequently to Dr Fama it is clear that he admitted to Dr Grant, Dr Calder Potts and Dr Aboud that he had consumed significant amounts of alcohol prior to the stabbing.
Mr Heuer specifically admitted to Dr Grant that he did have red wine and vodka prior to the offences and Dr Grant noted his history of using alcohol to settle his early morning anxiety and tremor. Dr Grant noted his history of consuming a bottle of spirits daily and he considered that he “would generally have been in a chronic state of intoxication”. He also stated that the intoxication explains his dense amnesia for the events in question.
Dr Aboud also considered he would have been in a state of chronic intoxication and that his amnesia is alcohol related as is the violence. Mr Heuer also told Dr Aboud that he had consumed alcohol just prior to the offences and as Dr Aboud concluded pathological intoxication can occur with the ingestion of only one or two drinks and has associations with dramatic behavioural changes. Dr Calder Potts referred to the consumption of a bottle of spirits prior to the attacks.
In the circumstances I do not consider that there is a fact so in dispute that it would be unsafe to make a decision. I consider that the preponderance of evidence supports a finding that Mr Heuer was intoxicated at the time of the stabbings. Significantly I consider that Mr Heuer’s self report to Dr Grant, Dr Calder Potts and Dr Aboud of significant alcohol consumption at the time of the alleged offences is substantiated by both his previous history and his behaviour at the time of the stabbings. In my view that history and that behaviour supports the admission by Mr Heuer of the consumption of alcohol in the early hours of the morning.
The advice of Dr McVie was clearly that she considered that the intoxication with alcohol could have precipitated the psychotic episode which occurred in the context of intoxication. Dr McVie considered that the timing of the offences also supports a finding of intoxication. I note her clear advice that it is extremely unlikely for a psychotic episode alone to be associated with dense amnesia. Dr Varghese also noted that the amnesia was ‘likely to be related to intoxication’ and that “such an alcohol induced psychosis would explain the time course and the amnesia.”
Whilst the amount Mr Heuer drank is not clear given the variable reports, I consider that he was intoxicated. On the evidence before me there is no other explanation for his dense amnesia. In my view the overwhelming inference from the facts which are know, is that Mr Heuer was in fact intoxicated at the time of the stabbings. The question is whether despite the intoxication he was deprived of one of the relevant capacities by reason of the psychosis alone.
Counsel for Mr Heuer, Mr Briggs, argues that the disease, namely the psychosis, deprived Mr Heuer of the capacity to know that it was wrong to stab his flat mates and that the psychosis alone, irrespective of intoxication, would have deprived Mr Heuer of that capacity. He stated:
“Your Honour, in my submission, what seems clear for legal purposes is that two very experienced psychiatrists, namely Dr Fama and Dr Grant, both opined that this man was, by reason of a mental disease, psychotic at the time of the offences and that he was deprived by that psychosis alone, independent of intoxication, of the capacity to know that what he was doing was wrong.”
I also note Mr Briggs submission that:
“The state of deprivation is the state of deprivation of the particular capacity in question. Whether or not the overall state of mind is affected by alcohol may be relevant to that but it is not determinative of the legal question of whether or not there was a deprivation of that capacity sufficient to, in law, allow a defence of unsoundness.”
It is clear that intoxication per se does not deprive a person of the defence of unsoundness of mind. The real question is “what part did the intoxication play, if any, in relation to the deprivation of the relevant capacity?” The real issue is whether the intoxication played a part to some extent in the deprivation of the capacity in question.
In this regard Mr Campbell Counsel for the Director of Public Prosecutions relies on the decisions of Reid v DPP (Qld) & Anor[4] and Re Clough[5]. In Reid v DPP Justice Keane stated:
[4][2008] QCA 123 at [30] – [31].
[5][2007] QMHC 002.
“[30]It is important to emphasise here that, while s 405(1) of the Act provides that no party bears the onus of proof of any matter, the Court still had to decide on the balance of probabilities under s 405(2) whether the appellant's state of mind at the time of the alleged offence resulted ‘to any extent’ from intoxication. In this regard, it must be noted that whether or not the appellant would have been experiencing a psychotic episode at that time even if he had not taken amphetamines is not the issue posed by s 267(1)(a) and the definition of "unsound mind" in the Act.
[31]Dr Kovacevic accepted that the appellant's "lack of memory for the alleged offence could be attributed to the effect of amphetamine intoxication." It is, to say the least, difficult to see how it could sensibly be said, in the light of this acknowledgment, that the appellant's state of mind when the offence was committed did not result, to some extent at least, from intentional intoxication.” (my emphasis)
Similarly Mr Campbell relied on the Mental Health Court decision of Re Clough[6] where it was stated:
[6][2007] QMHC 002.
“[20]It is clear on the uniform views of the reporting doctors that the defendant was suffering from a psychotic condition at the time he stabbed his wife and that the condition is best described as a drug induced psychotic disorder. There is also no doubt in my view, given the clinical evidence, that the defendant was in a state of voluntary intoxication from amphetamines injected on 14 September 2005 and still present in his system on 20 September 2005.
[21]There was general agreement among the reporting doctors that the defendant was deprived of the capacity to know that he ought not do the act at the relevant time. There was also general agreement that intoxication featured in that deprivation. In those circumstances, as counsel for the defendant accepted, the defendant cannot be afforded a defence of unsoundness of mind and I find that at the relevant time the defendant was not of unsound mind.”
Mr Briggs argues that whilst intoxication might have played a part in the deprivation of the capacity for control it would not have played a part in the deprivation of the cognitive capacity to know he ought not to do the act and that such deprivation resulted solely from his psychosis. He argues that the very prominent delusions and hallucinations would probably be sufficient on their own to deprive him of the capacity to know that he ought not to do the act.
In the 2002 decision of Re LIH[7] Wilson J discussed the words “state of mind” in the definition of “unsound mind” in schedule 2 of the Act in the following terms:
[7][2002] QMHC 14
“[14] 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 …”.
[15] 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.”
In the Court of Appeal decision of R v Clough[8] it was held as follows:
[8][2010] QCA 120
“[25]The argument advanced orally in relation to s 27, was simply that if the appellant had a psychosis (or diseased mind) at the time of the killing, as the primary judge found, s 27 applied to relieve him of criminal responsibility. In the course of argument, senior counsel for the appellant accepted that, in order for s 27(1) to apply, there also needed to be a relevant lack of capacity. It was asserted, however, that it did not matter that the lack of capacity was caused by a combination of an underlying mental condition and intoxication.
[26] It can readily be seen from the plain words of s 27(1) that the sub-section applies only if it is the "state of mental disease or natural mental infirmity" which deprives the person of one of the specified capacities. Where a person is deprived of a relevant capacity by the effects of intoxication on a pre-existing condition, the prerequisites for release from criminal responsibility are not engaged.”
In my view in the particular circumstances of this case it is impossible to isolate the affects of intoxication in the way contended by Mr Briggs. I agree with Dr Grant that “it's very difficult to tease out what effects intoxication might be having at the same time." I agree with Dr McVie that the alcohol precipitated the psychotic episode on the day and that the dense amnesia would not have occurred without the alcohol. I consider that that in this case intoxication did play a part in the deprivation of the relevant capacities. I consider that intoxication must to some extent have contributed to Mr Heuer’s state of mind on the day and that it would also have played a role to some extent in the deprivation of the capacity to know he ought not to do the act. Accordingly in my view there was a state of mind resulting, to an extent, from intentional intoxication at or about the time of the alleged offence.
I also note Mr Briggs argument that there was a brief reactive psychosis unrelated to alcohol consumption. This was also explored by Dr Varghese as follows:[9]
“The remaining issue is the - which has been raised in the - in the - in the evidence is that of a brief psychosis, although this wasn't explored in any detail. A brief psychosis has also been called brief reactive psychosis and this can sometimes occur consequent to psychosocial stressors and Dr Aboud description - describes the psychosocial stressors, although he added the intoxication. Brief psychosis consequent to psychosocial stressors is very rare and the hallmark is that the form and content of the psychosis is related understandably to the stressor. In this case, that nexus is not - not apparent. And again, the issue of intoxication is a confounding issue.
It should be noted, however, that a high proportion of individuals who have been diagnosed with brief psychosis will go on to develop schizophrenia and so it is potentially possible that a brief psychosis in the absence of intoxication may be a first manifestation of schizophrenia. And against this is that the psychosocial stressors do not seem to be related to the manifestation of the - in - of the psychosis, although one could argue that what determines the content of the psychosis is the personality, as against the nature of the stressors.
So it - my advice is that if there was no intoxication, then a putative brief psychosis being the first manifestation of schizophrenia, would qualify as a disease of the mind and bring about unsoundness of mind, with the capacity being lost - being the capacity for knowing the wrongness of his act, against - that's - the key question is whether there was intoxication and on that issue, it really turns on a legal definition of whether there is a dispute of fact and I would not advise on that.”
[9]Transcript Day 3 p 10
I am not satisfied the evidence indicates that there was a brief reactive psychosis or if there was that it was totally unrelated to alcohol.
Accordingly in my view Mr Heuer was not of unsound mind at the time of the stabbing because he was intentionally intoxicated. I am satisfied that a defence of unsoundness of mind is not available due to the presence of voluntary intoxication with alcohol.
I am satisfied that Mr Heuer is fit for trial.
The proceedings should continue according to law.
0
3
0