Re Hughes

[2008] QMHC 20

MENTAL HEALTH COURT

CITATION:

Re Hughes [2008] QMHC 20

PARTIES:

REFERENCE BY THE LEGAL REPRESENTATIVE IN RESPECT OF DIANA FAE HUGHES

PROCEEDING:

No 91 of 2007

DELIVERED ON:

17 September 2008

DELIVERED AT:

Brisbane

HEARING DATE:

12 September 2008

JUDGE:

Dutney J

ASSISTING
 PSYCHIATRISTS:

Dr J Lawrence
Dr E McVie

FINDINGS AND ORDER:

1. I direct that the matter proceed according to law

CATCHWORDS:

MENTAL HEALTH – DECLARATION OR FINDING OF MENTAL ILLNESS OR INCAPACITY – where defendant charged with murder – where defendant gave inconsistent versions of events to psychiatrists – whether there is a dispute relating to substantially material facts

Mental Health Act 2000 (Qld), s 269

COUNSEL:

Ms C Morgan for the Defendant
Mr W Isdale for the Director of Mental Health
Mr S Vasta  for the Director of Public Prosecutions (Qld)

SOLICITORS:

Legal Aid for the Defendant
Crown Law for the Director of Mental Health
The Director of Public Prosecutions (Qld)

1. JDUTNEY: The defendant is charged with the murder of her former partner on 10 August 2006. The issue presently before the court is whether there is a dispute relating to substantially material facts under s 269 of the Mental Health Act 2000 (Qld).

1. Section 269 provides:

“(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.”

1. In this case the body of the deceased was found in a chair at his residence. He was loosely bound with ropes about the wrists and one leg. He had lost a leg some years previously. The defendant gave a version of how the offence was committed to the treating psychiatrists. The first of these was Dr van de Hoef whose report is dated 13 August 2007.

1. The version of events given to Dr van de Hoef relevantly commenced in the period leading up to the event on 10 August 2006.

1. The defendant described two attempts at suicide in the two week period preceding the offence. Most relevantly she obtained a prescription for diazepam on Saturday, 5 August 2006.

1. The defendant told Dr van de Hoef that she decided on Monday 7 August 2006 to kill herself by an overdose. The following evening she mixed most of the diazepam in white sauce which curdled.  She forced herself to eat it with her meal then went to bed where she later repeatedly vomited. As a result the overdose had no effect.

1. On the date of the killing, the defendant said that she had the bottle containing the balance of the diazepam tablets in her pocket. She was at the house with the deceased and decided to sedate him so that she could get the keys from the study and retrieve or check on some of her belongings that had been stored in the shed. She told Dr van de Hoef that she sprinkled the remaining diazepam tablets on the deceased’s vegetables which he ate with his dinner.

1. When the deceased went to sleep the defendant obtained ropes from the back veranda and tied his leg to the chair, then his left arm, then his right, then tied the rope across his body. She told Dr van de Hoef that she tied him up so that no one would get hurt and she then went to the shed. When she returned to the house she attempted to untie him. She cut the cord to his left, then right arm, but at that point he woke and grabbed the front of her shirt roughly, accusing her of being in the shed. She said the defendant threatened to break every bone in her body. He elbowed her hard in her left arm and chest. The defendant said she panicked and could not remember what happened next, but when she regathered her senses she was kneeling behind his chair and as things transpired he had been strangled.

1. On the basis of the whole of the history obtained from the defendant, Dr van de Hoef diagnosed the defendant as suffering from a major depressive episode with melancholic features.

1. Despite this, Dr van de Hoef was not satisfied that the defendant was of unsound mind at the relevant time. Significantly, Dr van de Hoef was aware of objective evidence that the defendant had in the days preceding the killing conducted internet searches relating to premeditated murder and the penalty associated with it. Dr van de Hoef also took into account the defendant’s conduct following her discovery that the deceased was dead.

1. On the basis of these additional matters, Dr van de Hoef considered that the defendant had a defence of diminished responsibility.

1. Dr Sunden provided a report dated 15 January 2008. Dr Sunden was given a history materially corresponding to that given by Dr van de Hoef. One difference however, was that the attempted suicide with diazepam was said to have taken place on Wednesday 9 August 2006 rather than Tuesday 8 August 2006.  Dr Sunden was troubled by the apparent pre-planning evidence by the internet searches. The defendant denied making these searches in her interview with Dr Sunden.

1. Dr Schramm also provided a report dated 26 August 2008. Dr Schramm opined that he would have provided a defence of unsoundness of mind on the basis of the history given to him by the defendant. However, once it was pointed out to him that there were some omissions from the history which a reasonable jury might well accept, he qualified his opinion. In particular, Dr Schramm summed up the issue in the following way:

“It would seem that the question of criminal responsibility rests upon which of three scenarios is accepted by the court as truthful. I do not believe that it is my place to offer opinion as to which scenario is correct, but will offer my opinion for each of the possibilities:

1.If it is accepted that Ms Hughes has tied Mr Stewart up with no intention to kill him and has only strangled him after he was roused and assaulted her, then my opinion as per 12/3/07 stands. As noted, this would seem to rely on the fact that the lack of signs of straining at the ligatures was because she had freed one or both of his hands before he assaulted her (as she seems to be stating) or that the hobbling allowed such free movement.

2.If it is accepted that Mr Stewart has not roused (i.e. the possibility that he has assaulted her in those moments can be ruled out) this would seem to strongly suggest that she has acted in tying him up with an intention other than simply to restrain him to check on her belongings and would make me suspect she has done so with an intent of strangling him. If this kind of planning and awareness is accepted as what occurred, then I could not argue that she was completely deprived of any capacity. In this scenario, notwithstanding my comments below, I would still argue that her grossly disturbed mental state was still sufficient to render her substantially impaired in her ability to reason about the wrongness when she made the decision to kill him (that is, she was of diminished responsibility).

3.If it is decided that she had, some days beforehand and with some calmness, planned to kill him in this way (as may possibly be inferred by her searching the internet as above), then not even a defence of diminished responsibility by virtue of substantial impairment of that capacity would seem possible to my mind. I accept that I make this statement based on my own understanding of the term ‘substantial impairment’ which is that it is an impairment of capacities falling just short of complete deprivation. I accept that this may be an incorrect interpretation of this term and note that there is no specific guidance as to its definition and am happy to be guided by counsel and prosecution in oral evidence to expand.”

1. In his oral evidence Dr Schramm indicated that he had been provided with further information by the Legal Aid Office, the effect of which was that a defence of diminished responsibility could be available if a jury was satisfied that the level of impairment of a relevant capacity was real and not trivial. On that basis, Dr Schramm was prepared to moderate his opinion on scenario three, but maintained that it would depend upon the degree of coldness involved in the pre-planning as to whether or not a defence of diminished responsibility would be available.

1. Under cross-examination, all of the doctors appeared to me to take a roughly similar view.

1. It was submitted on behalf of the defendant that I should accept her version of the event in the absence of any other. I accept the defendant’s submission that it is not sufficient for the prosecution merely to dispute the defendant’s version of events in circumstances where there is no evidentiary basis for doing so. That is not this case. It seems to me that there is other evidence which might form a rational basis for a properly instructed jury to reject the evidence of the defendant as giving a fair picture of the event. In particular there is evidence of internet searches to which I have already referred. Other evidence includes an absence of defensive injuries on the body of the deceased. The defendant’s version of cutting the ropes prior to being assaulted by the deceased is also open to alternative interpretations. Both of the deceased’s arms were tied when the body was discovered. The ropes were loose. The deceased may or may not have had sufficient mobility of his arms to assault the defendant. Although the deceased’s arms were described as loosely tied, there was evidence that at least one rope had been cut but not so as to free the deceased’s arms.

1. It seems to me that this is a case where, despite there being only one direct version of events, a jury is not bound to accept it and there is evidence which might provide a basis for rejecting it. If the defendant’s evidence is rejected, then it appears to depend very much on the degree of calculation and pre-planning involved as to whether or not there is an arguable defence of diminished responsibility.

1. Having reached these conclusions it seems to me that there are facts relating to the event which are substantially material to the opinion of expert witness and which are in dispute. It seems to me that this is the type of case to which s 269 of the Mental Health Act is directed and accordingly I should not make any finding as to unsoundness of mind or diminished responsibility and direct that the matter proceed according to law.