Re Horner
[2013] QMHC 17
•4 December 2013
MENTAL HEALTH COURT
CITATION:
Re Horner [2013] QMHC 17
PARTIES:
REFERENCE BY LEGAL AID QUEENSLAND IN RESPECT OF JEAN-PAUL HORNER
PROCEEDING NO:
0166 of 2013
DELIVERED ON:
Ex tempore reasons delivered on 4 December 2013
Written reasons delivered on 17 December 2013
DELIVERED AT:
Brisbane
HEARING DATE:
4 December 2013
JUDGE:
Ann Lyons J
ASSISTING PSYCHIATRISTS:
Dr J M Lawrence
Dr F T VargheseFINDINGS AND ORDERS:
That the defendant was not of unsound mind as described in the Schedule of the Mental Health Act 2000 (Qld) at the time of the alleged offences.1.
That the defendant is permanently unfit for trial pursuant to ss 270 and 271 of the Mental Health Act 2000 (Qld).2.
That the proceedings against the defendant in relation to the alleged offences of assault occasioning bodily harm whilst armed on 19 March 2012 and serious assault of a public officer on 5 February 2013 are discontinued and further proceedings must not be taken against the defendant for the acts constituting those offences.3.
That a copy of the transcript be made available to the parties, the Mental Health Review Tribunal, the Forensic Disability Service and the Department of Communities, Child Safety and Disability Services.4.
CATCHWORDS:
MENTAL HEALTH – DECLARATION OR FINDING OF MENTAL ILLNESS OR INCAPACITY – where defendant charged with assault occasioning bodily harm whilst armed and serious assault of a public officer – where defendant diagnosed with ADHD and mild intellectual impairment – where majority of the reporting psychiatrists also diagnosed pervasive developmental disorder – where differing psychiatric opinion as to defendant’s fitness to plead, instruct counsel and endure a trial without serious adverse consequences to his mental health – 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 defendant fit for trial – whether Forensic Order required pursuant to s 288 of the Mental Health Act 2000 (Qld)
Mental Health Act 2000 (Qld), Schedule, s 267, s 270, s 271, s288
R v Presser [1958] ALR 248, considered
COUNSEL:
J D Briggs for the defendant
J Tate for the Director of Mental Health
C J Lloyd for the Director of Forensic Disability
S P Vasta for the Director of Public ProsecutionsSOLICITORS:
Legal Aid Queensland for the defendant
Crown Law for the Director of Mental Health
Director of Forensic Disability (Qld)
Director of Public Prosecutions (Qld)
A LYONS J:
Background
Jean-Paul Horner is charged with two offences, namely assault occasioning bodily harm whilst armed on 19 March 2012 and a serious assault of a public officer on 5 February 2013. The reference in relation to Mr Horner’s mental condition at the time of the alleged offences was filed by Legal Aid Queensland on 17 June 2013.
In relation to the assault on 19 March 2012, it is alleged that Mr Horner was being supervised by a female forensic disability worker at the Forensic Disability Service and he was on internal perimeter fence leave and moving around the perimeter of his complex when he started hiding in the bushes and throwing rocks around the yard and at a camera. He was asked to stop throwing rocks but continued and ultimately one of those rocks struck the worker in the face whereby she suffered two small lacerations and bruising to her face and temple. Police were called but Mr Horner was not fit to be interviewed.
The second offence relates to a person employed in senior management at the Forensic Disability Service Wacol. On 5 February 2013 the manager responded to an emergency call for assistance from staff members who were attempting to escort Mr Horner to a secure area due to his aggressive behaviour. Mr Horner was attempting to assault staff by kicking and head butting them. The senior manager went to the assistance of staff and during this engagement Mr Horner turned his head in the direction of the manager and spat at him with force.
Mr Horner has a long history of contact with the Mental Health system and the legal system. In 1998 he was found to be of unsound mind in relation to charges of unlawful use of a motor vehicle. He was placed on a Forensic Order. In 1999 there were further assaults and he was found to be of unsound mind in relation to those offences on 16 June 2000. He was detained in the Prince Charles Hospital. There were then further offences in 2000 involving sexual touching of a young girl. In 2009 there was a further charge of assault occasioning bodily harm when it was alleged that Mr Horner had assaulted a nurse whilst he was being supervised at The Park on 13 December 2009. Mr Horner disputed the charges and accordingly, this Court did not proceed to determine the issue of unsoundness. However, on 4 June 2012 the Court was satisfied that Mr Horner was fit for trial. Mr Horner pleaded guilty to that charge on 26 September 2012 and was placed on a bond.
The reports
The Court has the benefit of a number of reports including the reports of Dr Velimir Kovacevic, Professor Gregory O’Brien, Dr Paul White and Dr Donald Grant. The reporters have all provided evidence to the Court and it is clear that Mr Horner suffers from a natural mental infirmity. He has ADHD and a mild intellectual impairment. Three of the reporting psychiatrists consider that he also has a pervasive developmental disorder and I note that Dr Varghese also supports such a diagnosis. It is clear that Mr Horner’s intellectual handicap affects his ability to reason and to control himself.
Was Mr Horner of unsound mind at the time of the alleged offences?
None of the reporting psychiatrists considered that Mr Horner was deprived of any of the relevant capacities at the time of the alleged offences. In particular, Professor O’Brien stated that Mr Horner knows it is wrong to assault others and whilst he may have been somewhat excited at the time of the alleged offence in March 2012, Professor O’Brien considered that he did not lack the capacity to control his behaviour. The assisting psychiatrists also advised that with respect to unsoundness of mind, the evidence is that there is no support for unsoundness of mind, although there is likely to be impairment.
I am satisfied that whilst Mr Horner was suffering from a natural mental infirmity, he was not deprived of any of the three capacities although I accept that the capacity to know he ought not do the act was significantly impaired.
I am therefore satisfied that Mr Horner was not of unsound mind at the time. Accordingly, those charges should ordinarily proceed according to law.
Is Mr Horner fit for trial?
The real issue in this case is whether Mr Horner is fit for trial. Dr Grant has clearly indicated that he does not consider Mr Horner is fit for trial and that this condition is permanent. Dr Kovacevic has reached a similar conclusion, as have the assisting psychiatrists. I also note the objective evidence that Mr Horner’s lawyer has placed on record regarding the difficulty he has in obtaining instructions from him.
Professor O’Brien considered, however, that Mr Horner is fit for trial. His evidence was that Mr Horner understands the current charges and also understands the difference between pleading guilty and not guilty. Professor O’Brien indicated that Mr Horner had been a client of the Forensic Disability Service since 18 November 2011 and referred to his history of attempting to escape the Forensic Disability Service by climbing over the inner fence and climbing onto the roof, as well as running off whilst on escorted leave. Professor O'Brien considered that Mr Horner not only understands the charges but that he understands the difference between pleading guilty and not guilty. He referred to the fact that Mr Horner has employed legal counsel in the past and that he would be able to exercise his right of challenge.
Professor O’Brien’s evidence was that Mr Horner could communicate with his legal counsel but simply chooses not to do so because he knows it will get him in to trouble. He considered that Mr Horner does not communicate with his lawyer because he is not motivated to do so, rather than being incapable of doing so. Professor O’Brien stated:[1]
“He – the – yes, he’d understand if the substantial effect [indistinct] against him, yes, that’s true but he would not have difficulty communicating – he would not have difficulty communicating issues to his lawyer to formulate his answers. He would not have difficulty doing so depending on his motivation. It would depend – so if he decided to, he could.
And the motivation, I think you’ve told us from your perspective, is a clear choice of his?‑‑‑Yes.” (my emphasis)
[1]T1-38 (4 December 2013), at lines 43-47 to T1-39, at lines 1-2.
In response to questions from Dr Varghese, however, Professor O’Brien conceded that Mr Horner’s communication difficulties were related to “social reciprocity” and were therefore “substantially part of the pervasive developmental disorder”.[2] He considered that, to the extent that the communication difficulties were part of that disorder, they were not “voluntary”. Professor O’Brien agreed that Mr Horner’s difficulty in giving evidence “is related to not getting it that he has a role to play”.[3]
[2]T1-68 (4 December 2013), at lines 34-35.
[3]T1-68 (4 December 2013), at line 42.
Dr Paul White has also provided a report and has outlined Mr Horner’s history of ADHD and that he has had a lifelong difficulty and history of restless and impulsive behaviour and an involvement with Australia Mental Health Services since 1991. Dr White considered Mr Horner is currently unfit to plead and he could not tolerate the court processes and would not have the ability to challenge witnesses. He considered it unlikely that he could instruct counsel, even with the most supportive of interventions. He stated:[4]
“…this is a young man who has a great deal of difficulty in carrying on a conversation, and I think we’ve heard that. He really struggles to tell people what’s happening in his life and what’s occurring, and I think he is mildly intellectually disabled. I think he is autistic, and a lot of his problems come down to that lack of social reciprocity. He just – he doesn’t get it. He doesn’t get other people, and he struggles, at times very unhappily, to try to engage with us. So I think in terms of – you know, a court is a conversation between people, and I don’t think he can do that. So in terms of his unfitness, yes, it’s wrong to throw a rock, but it’s the other person’s fault because they got in the way. That’s been a pervasive story with Mr Horner for as long as I’ve known him. Things happen, but it’s the other person’s fault they got in the way. Trying to tell people – and that’s not something that’s changed over time. That’s – was there – I think I first saw him in ’95. I think that’s always been there, and for me ‑ ‑ ‑
So you’ve really been treating him in one capacity or another – or seeing him, for nearly twenty years?‑‑‑And I don’t think a lot has changed over that – well, I – I don’t think anything’s changed over that time except perhaps he’s a little less happy than he used to be and the – the notion that, you know, the voluntariness of his behaviour – he lives in pretty deprived circumstances. I mean, people do their best for him but the FDS, you know – he has very few privileges. He doesn’t go out very much. He lives in a very isolated situation.”
[4]T1-60 (4 December 2013), at lines 9-29.
Dr White also considered that Mr Horner would have difficulty enduring the trial without there being adverse consequences to him. He said:[5]
“I think the fact that, on the previous occasion, that there were critical incidents when he returned to the court – sorry, to the FDS, gives us some indication that there was mental – mental stress, mental discomfort that he derived from a magistrate’s court appearance. He may sit, you know, comfortably and attentively as he has for much of today, for which he is to be congratulated. But that may not occur and that’s, I think, quite unpredictable. What we can predict about Mr Horner is that, you know, there will be critical incidents, some of them are quite, you know, of great difficulty to manage. And I would see it – that being in court is a risk factor for that because of the heightened emotions and the unknown nature of the – the events that are occurring.
Now, today, has he wanted to engage?‑‑‑Well, it would depend what you meant by that. Has he enjoyed being here today? I suspect, yes. Has he engaged in meaningful conversation with people here about the court process and about its meaning? I don’t know. But I doubt it.”
[5]T1-66 (4 December 2013), at lines 28-42.
The advice of the assisting psychiatrists
Dr Varghese and Dr Lawrence both advised that I should prefer the extensive reports of Dr Grant, Dr Kovacevic and Dr White to that of Professor O’Brien. The advice was that Mr Horner had significant communication difficulties as well as impairments in his judgment and decision making, together with “concrete thinking”. Dr Lawrence advised:[6]
[6]T1-85 (4 December 2013), at lines 4-47 to T1-86, at lines 1-3.
“Certainly, Mr Horner has demonstrated some sort of emotional response to a lot of the information that’s been given today, and he has clearly been able, with extra consideration, to tolerate this setting in a court process without adverse consequences, but I think that he would have difficulty in identifying, and therefore being able to challenge, any discrepancies in evidence that was given in a trial situation, and I think he would have difficulty in communicating his concerns to his lawyers, and I certainly would agree with the proposition that he would not be really able to give evidence himself and stand up to cross-examination, and I don’t think he would really be capable of making an appropriate decision about whether to do that or not.
I think that this man has greater difficulties than just the diagnoses of ADHD and, really, what amounts to a borderline intellectual incapacity. I would agree with the evidence or the discussion that occurred which suggests that there is perhaps a pervasive developmental problem operating here.
....
We heard that a positive behavioural support program had been instituted in their facility, which has been designed for this very purpose, but clearly it has not produced the results that one would have hoped for and were expected, and the fact that whilst this is the second time Mr Horner has been brought to a court process, in exposure of that, with the hope that Dr O’Brien has expressed twice now in two different reports to two different courts – the express hope that by involvement in the court process, it would be an incentive, if you like, that would be useful in trying to help Mr Horner learn and accept the consequences of his behaviour.
That is clearly – has been clearly stated as his – the end point of the – what Dr O’Brien hoped to achieve. I think when it becomes an end in itself, one has to be very careful about the means that you use, and in this case, I don’t think the end justified the means. The – I don’t – I was not convinced on the information that was given that there’s any evidence that the previous attempt at bringing the offences of this man to a court process derived any benefit for him, certainly not in the longer term, and I interpreted from the response of Professor O’Brien that he could not point to any tangible benefit in the short term, but he hoped that in the long term it might. ”
Dr Lawrence was satisfied that the unfitness was permanent.
Dr Varghese also considered, on balance, that Mr Horner was unfit for trial. He stated:[7]
[7]T1-86 (4 December 2013), at lines 38-47 to T1-87, at lines 1-34.
“With respect to the question of fitness for trial, the situation is quite complex as there are many factors operating.
The defendant suffers from mental retardation, but it is of a mild variety, measured at 71, I believe. And the opinion of Mr Paross, psychologist, is that it could be as high as 80. So the mental retardation of itself would not be enough to bring about a situation of unfitness for trial. It seems, however, that on the clinical evidence, that there is more than mental retardation and ADHD, and this situation is best understood as a pervasive developmental disorder or autistic spectrum disorder. I’m aware that Professor O’Brien disagrees with that. And it is difficult to contradict somebody with such vast experience in this area, but it seems longitudinally that there is in fact something more profound than mental retardation. And I think some of those features of autistic spectrum were actually observable in court.
....
With respect to the instructing counsel, it seems likely – and this is on the evidence of Dr O’Brien – that he will clam up in such a situation, as he did – indeed he does at the meetings where it is discussed that – where he placed (sic) at the moment.
The question is: what is this clamming up about? Dr O’Brien considers that this is a voluntary behaviour and based on motivation. While Dr White suggests that this is not the case – and is supported by Drs Grant and Kovacevic, but more clearly articulated by Dr White – that the clamming is something to do with the pervasive developmental disorder, in that he has a profound difficulty in communicating with others and relating to others in certain contexts. So while the behaviour may be contextual, it’s not necessarily voluntary. And there are situations where he has a – not possible for him to actually state what has occurred; he reverts to default: “I don’t know”, “I don’t remember”.
It’s also likely that he will clam up in – if he was to give evidence. And even if he were to give evidence – if the situation, the context was different, that he was to give to evidence or communicate with counsel, the chances are – the evidence of Dr Grant and Dr White that he would – whatever his state, he would have a rambling circumstantial, stereotypical process, as was viewed by Dr White, that would not really produce much value to any lawyer defending him, or be of value in terms of evidence, if he were to give evidence. So if your Honour were to accept that there is more than mental retardation and ADHD, then my advice would be to – that the defendant is unfit for trial, both with respect to pleading and with respect to enduring a trial. And moreover, this fitness is permanent.”
I also note Dr Varghese’s advice in relation to the clinical utility of a reference to this Court as follows:[8]
“The first thing that needs to be said, in my view, is that the question of unsoundness or fitness for trial is based on the clinical state and circumstances, rather than on whether there is any clinical utility, with respect to whether charges should proceed; that is, using the court as a behavioural therapeutic tool, when there other ways (sic) of managing a behavioural program.”
[8]T1-86 (4 December 2013), at lines 32-36.
Having considered the extensive reports as well as the advice of the assisting psychiatrists, I am satisfied that Mr Horner does, to some extent, understand the charges, and he does satisfy some of the R v Presser[9] criteria. The real question on the evidence was whether Mr Horner was deliberately editing the information that he supplied to his lawyers rather than being incapable of supplying that information. I am satisfied that the balance of the evidence is that Mr Horner does not have the ability to communicate with his lawyers, particularly in the dynamic environment of a courtroom where he would have to respond to evidence as it unfolded. I accept the submission from Mr Horner’s counsel that he simply cannot properly communicate information to his lawyers. I also consider that there is clear evidence that any account he would give would in fact be a long, rambling, repetitious and stereotypical account which would be non responsive to new information
[9][1958] ALR 248.
Accordingly, in my view, Mr Horner cannot properly plead to the charges. In addition, there is also concern that he would suffer some serious adverse consequences to his health during the trial given the evidence of Dr White in relation to his last court appearance. I am satisfied that this condition is permanent.
I am satisfied Mr Horner is unfit for trial and that this condition is permanent.
I accept that a charge of assault is a serious charge. It would also seem that the assaults are ongoing given that some 63 reported incidents were referred to in the evidence. There was, however, no evidence before the Court in relation to the issue of Limited Community Treatment (LCT) and I also note that Mr Horner is currently the subject of a Forensic Order. In terms of whether a Forensic Order is required, it is clear that Mr Horner has been residing at the Forensic Disability Service pursuant to a Forensic Order (Mental Health Court – Disability). Whilst it is clear there are concerns about Mr Horner’s current LCT, this Court is not in a position to consider in any detailed way the current LCT conditions. I accept the advice of the assisting psychiatrists that it is more appropriate that the Mental Health Review Tribunal thoroughly review those LCT conditions in February 2014. I note that the advice of the assisting psychiatrists is that the treating team should thoroughly review the LCT and take a renewed look at the LCT with a fresh mind and look at ways in which Mr Horner can participate meaningfully in the community if possible. I note Dr White’s evidence that Mr Horner is receiving gold standard treatment, but obviously one can always take a fresh look at a current approach.
Accordingly, I do not consider there is any utility in a Forensic Order, given the current Forensic Order (Mental Health Court – Disability) will be reviewed in two months’ time. It is clear that the Mental Health Review Tribunal should, however, be aware of this proceeding and the charges, and they should have access to the transcript of the Mental Health Court proceedings, together with the advice of the assisting psychiatrists and the submissions. I also note Dr Varghese’s advice that the Court should not be used as a behavioural tool, and I think that that advice is well-founded.
Accordingly, there are orders in the terms set out above. I will also order that a transcript be made available to the parties, the Mental Health Review Tribunal, the Forensic Disability Service and the Department of Communities, Child Safety and Disability Services.
ORDERS AND FINDINGS:
1. That the defendant was not 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 defendant is permanently unfit for trial pursuant to ss 270 and 271 of the Mental Health Act 2000 (Qld).
3. That the proceedings against the defendant in relation to the alleged offences of assault occasioning bodily harm whilst armed on 19 March 2012 and serious assault of a public officer on 5 February 2013 are discontinued and further proceedings must not be taken against the defendant for the acts constituting those offences.
4. That a copy of the transcript be made available to the parties, the Mental Health Review Tribunal, the Forensic Disability Service and the Department of Communities, Child Safety and Disability Services.
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