Re Hughes

[2012] QMHC 18

MENTAL HEALTH COURT

CITATION:

Re Hughes [2012] QMHC 18

PARTIES:

REFERENCE BY THE LEGAL REPRESENTATIVES IN RESPECT OF ANTHONY JOHN HUGHES

PROCEEDING NO:

No. 340 of 2011

DELIVERED ON:

27 July 2012

DELIVERED AT:

Brisbane

HEARING DATE:

19 July 2012

JUDGE:

Ann Lyons J

ASSISTING PSYCHIATRISTS:

Dr E N McVie
Dr J M Lawrence

FINDINGS AND ORDERS:

1. That 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 the defendant is not fit for trial and the unfitness is of a permanent nature;

3. That pursuant to a Forensic Order the defendant be detained to The Park – Centre for Mental Health Authorised Mental Health Service;

4. Pursuant to s 289 of the Mental Health Act 2000 (Qld), the Court approves Limited Community Treatment to commence immediately on a graduated basis at the discretion of the treating psychiatrist on the conditions contained in the amended submission of the Director of Mental Health and on the following conditions:

(a)   That the patient complies with the requirements of the authorised psychiatrist in relation to the taking of prescribed medication and other treatment;

(b)   That the patient submit to all blood tests as required by the authorised psychiatrist;

(c)    That the patient must not use alcohol unless permitted to do so by the authorised psychiatrist;

(d)   That the patient abstain from all illicit drugs and must co-operate fully in random medical tests for those substances as required by the authorised psychiatrist;

(e)    That the patient not drive a motor vehicle;

(f)    That the patient not initiate contact with the complainant, Mr Ronald Budds;

(g)   That the patient not travel to, or stay in, the Gold Coast/Nerang area unless accompanied by a responsible adult;

Escorted (on and off the grounds of the hospital)

(h)   That the patient is to remain under the escort of health service staff member/s nominated by the authorised psychiatrist for the duration of the limited community treatment;

(i)     For the purposes of escorted limited community treatment, the patient complies with the directors of the nominated staff member/s for the duration of the limited community treatment;

Unescorted (on and off the grounds of the hospital)

(j)     That the patient returns to the ward at the time specified by the authorised psychiatrist;

Overnight

(k)   That the patient reside at supported accommodation or with his parents as approved in writing by the treating psychiatrist;

(l)     That the patient attend all follow up appointments and inpatient care as authorised by the treating psychiatrist;

(m) That the patient return to the ward at the time specified by the authorised psychiatrist after each night of overnight limited community treatment;

More than Overnight

(n)   That the patient reside at supported accommodation or with his parents  as approved in writing by the treating psychiatrist.

COUNSEL:

J P Benjamin for the defendant
J Tate for the Director of Mental Health

A K Lossberg 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:

1. This is a reference filed on 22 December 2011 by Legal Aid Queensland in relation to Anthony John Hughes. Mr Hughes is charged with one count of assault occasioning bodily harm on 25 January 2008. It is alleged that he violently assaulted a co-resident at his unit complex at Nerang.

1. Mr Hughes was first diagnosed with schizophrenia of the disorganised subtype in 1997. Mr Hughes has received intensive inpatient and outpatient treatment since that time. It is clear that his condition is treatment resistant and chronic and has resulted in a marked deterioration in his social functioning and is complicated by his cannabis and alcohol abuse. He has poor insight and poor compliance with treatment to date.

1. Mr Hughes has been trialled on a number of medications including Olanzapine, Risperidone, Quetiapine, Amisulpride, and Clozapine. He also had depot injections of Zuclopenthixol, Flupenthixol and Risperdal Consta. These have not achieved anything more than a limited improvement in his mental condition. Augmentation with Lithium, sodium valproate and antidepressants have also been trialled and have also failed to improve his condition. A trial of electroconvulsive therapy (ECT) was abandoned in March 2010.

1. Mr Hughes’ condition is characterised by a marked disorganisation of thought form, auditory hallucinations, systematised delusions which are grandiose and persecutory in nature and delusions of reference. Mr Hughes is incapable of managing his financial affairs and the Public Trustee manages his legal and financial matters. His day to day living is also disorganised and he requires prompting by staff to ensure that he completes his personal care activities of daily living. There is a significant risk of self neglect if Mr Hughes is not supported.

The alleged offence

1. The basis of the charge is that on 25 January 2008 Mr Hughes assaulted a 53-year-old man who was resident in the same unit complex as himself.  Mr Hughes is alleged to have demanded cigarettes and verbally threatened a woman called Ms Davis who also resided in the complex. It is alleged that he was banging on her doors and seeking cigarettes. Mr Budds, a co-resident, states that he intervened and asked Mr Hughes to leave her alone. It is alleged that Mr Hughes then assaulted Mr Budds with multiple punches, kicks and verbal abuse. Mr Budds was kicked and jumped upon multiple times.

1. It is clear that in his interview with police on 20 February 2008, a month after the alleged offence, Mr Hughes was somewhat thought disordered, however he made a number of statements strongly indicating that he was defending himself and that Mr Budds becomes abusive when he drinks. It would also seem clear that Mr Budds accepts he threw a punch at Mr Hughes. Mr Budds states, however, that he threw the punch because Mr Hughes had pushed him and caused him to stumble backwards. Mr Hughes asserts that he defended himself. He accepted that he kicked Mr Budds twice but stated that he was threatened. He also denied jumping on Mr Budds’ back.

1. The witness statements of Mr Budds and Ms Davis were also obtained a month after the alleged offence. Mr Budds stated that he was 53 years of age but as he has memory problems and dementia he requires a carer.  He clearly gives a different version of events to that of Mr Hughes, saying that he only attempted to hit Mr Hughes after Hughes had pushed him.  Mr Hughes does not accept that version of events.  It is clear that Ms Davis’ statement indicates that she saw Mr Hughes standing over Budds, kicking him in the back and groin. She does not refer to him jumping on Mr Budds and did not observe the lead up to the altercation. She confirms that Mr Hughes lived next door to her and that she heard him bang on her door on the night of 25 January asking for a cigarette. She does not, however, refer to him being verbally threatening.

1. When he was interviewed by Dr Kim Tanner on 4 June 2008, for a s 238 report, Mr Hughes confirmed that Mr Budds was yelling at him and came at him. He stated he thought Mr Budds was going to punch him and that Mr Budds had threatened to punch him. Dr Tanner, in her report, noted that in the days leading up to the incident there were home visits by the mobile intensive treatment team who indicated that Mr Hughes’ mental state was relatively stable and there were no acute psychotic symptoms. He was cooperative and taking his medication at the time.

1. In relation to the question of unsoundness of mind, Dr Tanner’s report stated:

“Mr Hughes suffers from a mental illness, that being schizophrenia, paranoid type, continuous. He was not acutely psychotic at the time of the offence, however there is no doubt that he was still suffering from residual symptoms of psychosis at that time. Mr Hughes reports that the incident occurred due to his need to defend himself. I believe that this was a genuine threat, probably related to Mr Hughes’ behaviour in his unit complex with demands for cigarettes and money. I do not believe that his residual psychotic symptoms contributed significantly to the incident occurring. I do not believe that Mr Hughes has a defence for the offence in relation to his mental illness.”

1. On 17 March 2012, some four years after the alleged offence, Dr Timmins interviewed Mr Hughes. He made statements to her which indicated that his denial of the charges could be seen as a result of his mental condition.

1. Section 268 of the Mental Health Act 2000 (Qld) states:

“268 Reasonable doubt person committed offence

(1) The Mental Health Court must not make a decision under section 267(1)(a) or (b) if the court is satisfied there is reasonable doubt the person committed the alleged offence (the disputed offence).

(2) However, the court may make a decision under section 267(1)(a) or (b) if the doubt the person committed the disputed offence exists only as a consequence of the person’s mental condition.

(3) If elements of the disputed offence are elements of another offence (the alternative offence), subsection (1) does not prevent the court from making a decision under section 267(1)(a) for the alternative offence.

Example for application of subsection (3)—
If the disputed offence is attempted murder, the court may make a decision in relation to the alternative offence of grievous bodily harm if the alternative offence is not disputed.

(4)If the court decides the person was of unsound mind when the alternative offence was committed proceedings against the person for the disputed offence are discontinued.

1. This Court is precluded from making a decision in relation to unsoundness of mind if there is a reasonable doubt that the person committed the offence. However, the Court may make a decision if the doubt exists only as a consequence of the person’s mental condition. This section is clearly aimed at preventing the Court proceeding to a finding of unsoundness when it may be that the defendant is entitled to an outright acquittal, pursuant to one of the defences such as accident, mistake, provocation or self-defence.

1. In my view Mr Hughes has clearly raised the issue of self-defence in the report he gave to police and in his account to Dr Tanner. Whilst he was somewhat chaotic in his interview with police, he gave a clear version of events and was essentially outraged that Mr Budds was making a complaint about his behaviour when he was clearly of the view that Mr Budds was the assailant. He told police:

“I don’t know, like he was just thr-, throwing himself at me and I had enough of it and I just defended myself. Like I immediately change when I defend myself. I don’t attack people, I don’t punch people and when he came at me I defended myself and I kicked him and I kicked him again.”[1]

[1] Police Record of Interview dated 20 February 2008 at p 17, ll 30-34.

1. There is no evidence of a psychotic motivation to the altercation. In Mr Hughes’ account he gave a clear account off self defence and indeed he could remember the details of the day and the shoes he was wearing.

1. In my view, therefore, Mr Hughes has raised a reasonable doubt as to whether he committed the offence in that he has a possible defence.

1. I note that Dr Timmins in her report dated 5 May 2012 considered that his version may be the product of a mental illness. She considered that his disordered account was such that it raised the issue of self-defence only as a product of his state of mind. This view has only arisen in relatively recent times. This account was obtained some four years after the events and, given how unwell he has been in the interim, his account now is entirely different and clearly thought disordered as he denies he was at the unit at the time: “I wasn’t there... I never did it”;[2] and refers to helicopters and brain scanners.  His current dispute of facts, as he now argues it, is clearly due to his state of mind. That dispute is clearly not the dispute he raised at the time.

   [2] Report of Dr E Timmons dated 5 May 2012 at p 5.

1. Whilst I note that Dr Timmins considered that a copy of the electronic record of interview supports a conclusion that he was of unsound mind at the time of the alleged offence, I consider that there is an alternative conclusion which is available on the evidence which is that, though thought disordered, he was able to give a clear account of the alleged offence and his role in it. His version of events is indeed supported by Ms Davis’ evidence, who states she only saw two kicks to the groin and, whilst she indicated he was asking for cigarettes, she did not indicate he was verbally abusive as alleged.  Mr Budds accepts he threw a punch. 

1. In my view Mr Hughes has been disputing the version of events consistently from the start. Dr Tanner saw Mr Hughes closer to the time of the offence and obtained a version of events consistent with his version to police. Dr Tanner did not consider that he was of unsound mind when she interviewed him. 

1. Accordingly I consider that there is a reasonable doubt Mr Hughes committed the offence and this Court is therefore precluded from making a finding in relation to unsoundness.

Unfitness for trial

1. The next issue which arises is whether Mr Hughes is fit for trial. Dr Timmins, who prepared an extensive report in May 2012, considered this question in great detail. She does not consider that Mr Hughes is fit for trial. She does not consider that he has a clear understanding of the nature of the charges or the nature of the Court proceedings, including the basic workings of a trial. She stated that whilst he understood superficially what guilty and not guilty means, he would not have an ability to instruct counsel or challenge jurors or the ability to decide what defence to offer. She does not consider he has the ability to explain his version of the facts to counsel and to the Court.

1. Dr Timmins also considered that, given the severity of his illness, would not be able to endure a trial without serious consequences to his mental condition. Dr Timmins considered that this unfitness is of a permanent nature. A similar view was expressed by Dr Stedman in his report dated 29 September 2011.

1. I also note that Dr Davison, Mr Hughes’ current treating doctor, would endorse Dr Timmins’ assessment. Mr Hughes has been on an Involuntary Treatment Order since 11 June 2002. Dr Davison considered that it would be necessary for Mr Hughes to be eventually placed in supported accommodation or a community care unit. Dr Davison also endorsed the fact that Mr Hughes was not fit for trial and that this condition was permanent. He stated that he was chronically psychotic and has remained so, despite receiving the best treatment available for at least the last two and a half years. He considered that he still displays a marked degree of formal thought disorder and expresses delusions, including a delusion that another person took his name and carried out the offence. Dr Davison stated that Mr Hughes cannot reason logically, even with the support of others and is unlikely to improve.

1. I am satisfied therefore that Mr Hughes is not fit for trial and that this condition is permanent.

Forensic Order

1. In terms of whether a Forensic Order is required, I note Dr Davison considers that a Forensic Order would not add anything to the current arrangements. I also note that Dr McVie considers that the need for a Forensic Order is marginal given his current care. On balance, however, the assisting psychiatrists support the making of a Forensic Order on the basis of his treatment needs and his offending history and consider that such an order is the safest mechanism to facilitate his transition back to the community, given that he has now been discharged from the medium secure unit. On the basis of that advice I therefore consider that, given Mr Hughes’ treatment needs and the fact he has been on an ITO for the last decade, a Forensic Order is required.

1. I consider that there should be limited community treatment on the terms set out in the draft submitted by the Director of Mental Health together with the following amendments. I consider that condition 6 should read “That the patient is not to initiate contact with the complainant, Mr Budd”; and condition 7 should require that the patient is not to travel or stay on the Gold Coast unless he is accompanied by a responsible adult. There should then be a change to the condition in relation to overnight absences and that condition should read “That the patient reside in supported accommodation or at his parents as approved in advance in writing by the treating psychiatrist.”

1. Otherwise the limited the limited community treatment conditions should be in terms of the draft as follows:

Pursuant to section 289, the Court approves limited community treatment to commence immediately on a graduated basis, subject to the discretion of the authorised psychiatrist, and on the following conditions:

1.    That the patient complies with the requirements of the authorised psychiatrist in relation to the taking of prescribed medication and other treatment;

2.    That the patient submit to all blood tests as required by the authorised psychiatrist;

3.    That the patient must not use alcohol unless permitted to do so by the authorised psychiatrist;

4.    That the patient abstain from all illicit drugs and must co-operate fully in random medical tests for those substances as required by the authorised psychiatrist;

5.    That the patient not drive a motor vehicle;

6.    That the patient not initiate contact with the complainant, Mr Ronald Budds;

7.    That the patient not travel to, or stay in, the Gold Coast/Nerang area unless accompanied by a responsible adult.

Escorted (on and off the grounds of the hospital)

8.    That the patient is to remain under the escort of health service staff member/s nominated by the authorised psychiatrist for the duration of the limited community treatment;

9.    For the purposes of escorted limited community treatment, the patient complies with the directors of the nominated staff member/s for the duration of the limited community treatment;

Unescorted (on and off the grounds of the hospital)

10.  That the patient returns to the ward at the time specified by the authorised psychiatrist;

Overnight

11.  That the patient reside at supported accommodation or with his parents as approved in writing by the treating psychiatrist;

12.  That the patient attend all follow up appointments and inpatient care as authorised by the treating psychiatrist;

13.  That the patient return to the ward at the time specified by the authorised psychiatrist after each night of overnight limited community treatment;

More than Overnight

14.  That the patient reside at supported accommodation or with his parents  as approved in writing by the treating psychiatrist.