Re Hoole

[2011] QMHC 27

MENTAL HEALTH COURT

CITATION:	Re Hoole  [2011] QMHC 27
PARTIES:	REFERENCE BY LEGAL AID QUEENSLAND IN RESPECT OF SHANE HOOLE
PROCEEDING NO:	0269/10
DELIVERED ON:	26 August 2011
DELIVERED AT:	Brisbane
HEARING DATE:	25 August 2011
JUDGE:	Ann Lyons J
ASSISTING PSYCHIATRISTS:	Dr J M Lawrence Dr E N McVie
FINDINGS AND ORDERS:	In respect of charges 2, 4 and 5 there is a reasonable doubt within the meaning of s 268 of the Mental Health Act 2000 (Qld) that the defendant committed the alleged offences; That at the time of the remaining six alleged offences on 12 February 2010 and the alleged offence on 8 November 2010 the subject of the reference the defendant was not suffering from unsoundness of mind as described in schedule 2 of the Mental Health Act 2000 (Qld); The defendant is fit for trial The proceedings against the defendant are to continue according to law
COUNSEL:	J Briggs for the defendant J Tate for the Director of Mental Health J-A Thomas 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)

ANN LYONS J:

This reference

1. This is a reference by Legal Aid Queensland dated 1 December 2010. Mr Hoole is charged with nine offences which occurred on 12 February 2010 and one further offence which occurred on 8 November 2010. The offences which occurred on 12 February included dangerous operation of a motor vehicle, failure to stop at a red light, failure to stop a motor vehicle, obstructing police, assaulting police, driving an unregistered vehicle, driving an uninsured vehicle, using a vehicle with plates belonging to another, and driving a vehicle without a driver’s licence. He is also charged with assault occasioning bodily harm on 8 November 2010.

Factual Background

1. In terms of the factual background on 12 February 2010 Mr Hoole was observed by a police patrol driving erratically, and narrowly missing colliding with another vehicle whilst attempting to overtake vehicles stopped at a red traffic light. He was also reported to have gone through the red traffic light. Police attempted to stop the vehicle but it is alleged that Mr Hoole drove off fast without stopping. He also overtook vehicles on a double line missing a collision after again driving through a red light.

1. Police registration checks revealed the registration plates did not match. Police followed the vehicle and when police finally caught up with him he left the vehicle and ran through dense bushland. When apprehended by police after the use of capsicum spray it is alleged he obstructed a police officer in the performance of his duty and then assaulted the police officer. It is alleged that he was driving an unregistered and uninsured vehicle at the time and that he did not have a driver’s licence.

1. In relation to the offence on 8 November 2010 it is alleged that a bus driver heard him swear several times whilst a passenger on the bus. When he ignored requests to stop swearing he was asked to leave the bus. It is alleged that he spat in the face of the driver as he left the bus. The incident was recorded on closed circuit television. It is clear that the QPS records indicate that there are 46 entries between 1994 and 2009 for various traffic offences. The QPS records also indicate that his criminal history lists over 50 offences, including assault occasioning bodily harm whilst in company and other assaults. The other offences are in the categories of property damage and drug offences as well as stealing.

Psychiatrists’ Reports

1. Dr Samy’s report dated 28 April 2011 indicates that Mr Hoole has a diagnosis of paranoid schizophrenia with poly substance abuse on a background of an anti social personality disorder. It would appear that when he was arrested by police in February 2010 he was found to be absent without permission from the Mental Health Service. He was admitted to the psychiatric high dependency unit for 10 days. Dr Samy reported that Mr Hoole was unwilling to clarify whether he was under the influence of illicit drugs at the time of the alleged offence. Whilst a urine test was subsequently positive for opiates Mr Hoole was not tested on admission and he was given strong painkillers in the days before the test was done. Dr Samy considered that Mr Hoole was not deprived of any of the relevant capacities and is fit for trial and fit to plead.

1. Dr Barbara McGuire initially gave Mr Hoole a defence in relation to charges one and three which related to dangerous driving and failing to stop. She considered that he was experiencing paranoid delusions that he would be harmed by police and others. She therefore considered he was deprived of the capacity for the charge of dangerous operation of a motor vehicle and failing to stop. She noted, as did Dr Samy, that he disputed the charges of driving through a red light and the two assault charges. He denied driving through the light and indicated that he had not touched or assaulted the police officers in any way intentionally but may have accidentally hit them whilst being subdued with capsicum spray.

1. In a supplementary report dated 14 July 2011, Dr McGuire stated that in her original report she expressed the view that he was deprived of the capacity to understand what he was doing in relation to the first charge of dangerous operation of a motor vehicle on the basis of paranoid delusional beliefs that he would be harmed not just by the police but by other people. Dr McGuire however now notes that there are some inconsistencies. In particular in the account he gave her and the account that he gave to Dr Mann as he informed Dr McGuire that he was disputing the charge of failing to stop at a red light but he did not dispute any of the offences to Dr Mann. Dr McGuire also stated he denied having consumed any alcohol at the time of the offences to Dr Mann but told her that he had consumed alcohol on the day.

1. Dr McGuire stated that in light of the account given to her that his dangerous driving occurred because he was frightened of everyone and everything, she believes that there continues to be doubt about his capacity to understand what he was doing, but acknowledges that the inconsistencies between the two histories given to the two psychiatrists casts some doubt on his credibility.

1. Dr Jonathan Mann also provided a report dated 17 March 2011. He stated that Mr Hoole did not dispute that the events occurred but he could not recall many details of what had happened. He told Dr Mann that he did not intend to assault the police officer but that he was thrashing around on the floor due to being sprayed with mace and that he injured the officer unintentionally. Dr Mann noted that Mr Hoole denied having used amphetamines and alcohol at the time of the offences and could not recall whether he had used heroin on the day. He noted however that in his report Dr Samy indicated that he tested positive for opiates after his arrest on 12 February. Dr Mann considers that it is possible that he used heroin on the day, but that it was likely that intoxication was not a significant factor affecting his mental state at the time of the offences.

1. Dr Mann considers that Mr Hoole suffers from schizophrenia and that he also abuses substances such as amphetamines and heroin which exacerbates his schizophrenia. Dr Mann considered Mr Hoole was not deprived of the capacity to understand what he was doing. He does not consider he was deprived of the capacity to control his actions and he does not think he was deprived of the capacity to know he ought not do the acts. Dr Mann noted that Mr Hoole has a significant past history of traffic offences and has faced related charges in court. He accepts that at the time of the charges he may have been experiencing paranoid thoughts however he considers that this would have been insufficient to completely deprive him of the capacity to know he ought not do the acts.

1. In terms of the charges which relate to licensing, insurance, and registration breaches, Dr Mann considered his decision to commit these offences was made at a point prior to being pursued by police on 12 February and therefore do not relate to his mental state at the time of his arrest. He does not believe he was deprived of the capacity to know he ought not do those offences.

1. In terms of the assault occasioning bodily harm charge Dr Mann considers there is no evidence to suggest Mr Hoole was deprived of the capacity to know he ought not commit the offence. In summary Dr Mann does not believe he was completely deprived of any of the relevant capacities.

1. Dr Mann’s view was endorsed by both the assisting psychiatrists who considered that whilst impaired due to non compliance with medication Mr Hoole was not totally deprived of any of the relevant capacities.

1. In terms of the 10 offences the subject of the reference it is clear that Mr Hoole appears to be disputing the assault charges which are charges 4 and 5 and that he also disputes charge 2 which is the failing to stop at a red light. Accordingly pursuant to s 268 and 269 the court cannot proceed to make a decision in relation to those charges.

1. In relation to counts 6 to 10 which are the unlicensed and unregistered driving charges and the assault on the bus driver, there is no evidence to support a finding of unsoundness in relation to those charges.  Those charges must therefore continue according to law.

1. The issue of unsoundness therefore essentially arises in relation to counts 1 and 3 which are the dangerous driving charge and failing to stop charges. 

1. It is clear that Mr Hoole has a long history of a schizophrenic illness which has been complicated by his drug taking.

1. There is no doubt on the evidence that on 12 February 2010 Mr Hoole was experiencing psychotic symptoms. He had been non compliant with his medication and had a depot injection on 31 December 2009 and then a further injection on 5 February 2010, a week before the offences.  I accept Dr Mann’s evidence that this was not a therapeutic dose and that this lack of medication probably precipitated his psychosis in early February 2010.

1. Whilst there is evidence that Mr Hoole was a longstanding heroin user and may have been using around the time of the offences I agree with Dr Mann that Mr Hoole’s illness is so severe it would have had little impact on his level of psychosis. I do not consider that intoxication played a significant part in these offences.

1. I accept therefore that Mr Hoole was experiencing significant psychotic symptoms on the day. The question however is whether Mr Hoole’s level of psychosis was so great that it actually deprived him of any of the relevant capacities rather than simply impairing one of those capacities. On the evidence before me I cannot be so satisfied particularly given Mr Hoole’s entrenched pattern of driving which is outlined in his traffic history.

1. I am therefore not satisfied Mr Hoole has a defence of unsoundness in relation to any of the charges, he is fit for trial and the charges should continue according to law.

ORDERS:

1. In respect of charges 2, 4 and 5 there is a reasonable doubt within the meaning of s 268 of the Mental Health Act 2000 (Qld) that the defendant committed the alleged offences;

2. That at the time of the remaining six alleged offences on 12 February 2010 and the alleged offence on 8 November 2010 the subject of the reference the defendant was not suffering from unsoundness of mind as described in schedule 2 of the Mental Health Act 2000 (Qld);

3.   The defendant is fit for trial

4.   The proceedings against the defendant are to continue according to law