Re HW
[2008] QMHC 14
•18 November 2008
MENTAL HEALTH COURT
CITATION:
Re HW [2008] QMHC 014
PARTIES:
REFERENCE BY THE DIRECTOR OF MENTAL HEALTH IN RESPECT OF HW
PROCEEDING:
No 119 of 2008
DELIVERED ON:
Orders made 29 October 2008; reasons delivered 18 November 2008
DELIVERED AT:
Brisbane
HEARING DATE:
29 October 2008
JUDGE:
Philippides J
ASSISTING PSYCHIATRISTS:
Dr J M Lawrence
Dr F T Varghese
FINDINGS AND ORDER:
1. That the defendant was of unsound mind at the time of the alleged offences as described in Schedule 2 of the Mental Health Act 2000 (Qld);
2. That the defendant be detained as a forensic patient at The Park High Security Program Authorised Mental Health Service (“The Park”).
CATCHWORDS:
MENTAL HEALTH – DECLARATION OR FINDING OF MENTAL ILLNESS OR INCAPACITY – where defendant charged with one count of murder, two counts of attempted murder, one count of assault occasioning bodily harm, and one count of entering a dwelling with intent – where psychiatric evidence indicated the defendant suffered from untreated schizophrenia at the material time and was psychotic – where difference of opinion among expert witnesses as to whether the defendant was deprived of one of the three capacities – 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 offences
R v Porter (1933) 55 CLR 182
R v Stapleton (1952) 86 CLR 358
COUNSEL:
Mr J Briggs for the defendant
Mr W Isdale for the Director of Mental HealthMr D L Meredith for the Director of Public Prosecutions
SOLICITORS:
Legal Aid Queensland for the defendant
Crown Law for the Director of Mental HealthThe Director of Public Prosecutions (Qld)
PHILIPPIDES J:
Background
HW, a 22 year old man, is charged with the murder of Ms N, the attempted murders of her daughter X and her son Y, one count of assault occasioning bodily harm, and one count of entering a dwelling with intent, relating to events that took place on 3 October 2007.
The defendant resided with his mother and two brothers. The deceased, her husband Mr S and her two children, X and Y (from another relationship) were known to the defendant, being neighbours who lived across the road from the defendant’s family.
It appears that either Mr S or Ms N’s brother had borrowed money from the defendant and there was some acrimony about it not having been paid back. In the more immediate lead up to the index offences, there had been mounting tension between the defendant and the victims’ family about that and also about the attention that the defendant had been giving X. The defendant had been told by Ms N, Mr S, and X to leave X alone. About a week prior to the index offences, the defendant, his brother, and Mr S were involved in a physical altercation. A short time after the defendant attempted to apologise to Mr S and Ms N, however they refused to accept his apology.
On the morning of 3 October 2007 the defendant had an argument with his mother over board money. The defendant’s brother questioned him about the matter and the defendant stated words to the effect that he had had enough, and having collected a samurai sword from his room, walked immediately across the road to Mr S and Ms N’s house. Upon entering his neighbour’s house, the defendant stabbed Ms N with his sword. He then swung the weapon at S, narrowly missing her throat, before grabbing her by the throat and throwing her to the ground. He then advanced on P, grabbing him by the throat and attempted to twist the boy’s head off. At this point the defendant’s brothers entered the house, and the defendant left the house, crossing the road to his own home. He left the sword in his room, walked to his father’s address nearby and spoke with his father. He was arrested by the police soon after.
Later that day, in a recorded police interview, the defendant made full admissions to all the charges. When interviewed by the police on 3 October 2007 the defendant described in respect of X his intent to “cut her head off”, and in respect of Y his intent to “break his neck” by “twisting his body from his head”. He later reported to psychiatrists that at the material time he intend to kill Mr S by cutting off his head, however decided to kill Ms N when she opened the door, to spare her from Mr S and to ensure no more demons were bred.
Psychiatric history
On 2 March 2007 the defendant was taken by his brother to The Princess Alexandra Hospital Emergency Department having been referred by his GP for “dizzy episodes”. A history was obtained of a 12 month period of decline in social functioning (with loss of accommodation, loss of his job, loss of money and assets and social withdrawal), odd sexual impulses and anger episodes, increasingly odd behaviour and beliefs and increasing incoherent speech. The assessment was made of a possible new presentation of early schizophrenia or schizotypal disorder. A mental health review was advised but did not ensue.
The day following the events of 3 October 2007 the defendant was thought to be psychotic when reviewed by the Court Liason staff. On 5 October 2007, while in custody, the defendant told Prison Mental Health Service psychiatrist Dr Neillie of a complex delusional belief system relating to themes of heaven and hell, a war between good and evil, the after-life, witch doctors and a need to decapitate people in order to empower and protect himself. In this and in subsequent assessments in Arthur Gorrie Correctional Centre by Dr Neillie on 8 October 2007 and then by psychiatrist Dr Aboud on 24 October 2007, the defendant described his experience of intermittently hearing a male voice speaking to him about the underworld and the after-life. He reported that he was fighting on the side of evil. He said that he believed that Mr S was from the after life, and he wanted Mr S’s head, as Mr S’s skull would make a “good seat” for him in the underworld. He believed that Mr S was a demon, and Ms N was a breeding machine for demons. He also reported that Mr S resembled someone who had cut the defendant’s head off when he was nine years old. He had been intending to kill Mr S for an unidentified period of time.
When interviewed by Dr Aboud on 27 October 2007 the defendant became agitated and distressed when discussing his belief system. He disclosed his suspicions that fellow prisoners might be from the underworld, as he felt he had seen them before. The defendant was commenced on anti-psychotic medication while still in prison. He was transferred to the high dependency unit of the High Secure Inpatient Service on 6 November 2007. Upon arrival in hospital he was placed under an involuntary treatment order on account of ongoing psychotic symptoms, associated homicidal ideation, lack of insight and impaired judgement. Serial mental state evaluations did not reveal any mental state improvement and on 25 February 2008 alternate anti-psychotic medication was commenced.
Diagnosis
In her report of 3 September 2008, Dr van de Hoef opined that the defendant suffered from paranoid schizophrenia. She considered the illness to be severe, and characterised by positive psychotic symptoms (notably bizarre and violent delusional beliefs, and vivid visual and auditory hallucinations), and some negative symptoms (such as a decline in motivation and social functioning). At the time of her examination on 24 August 2008 he was still psychotic and remained dangerous to others. Dr van de Hoef noted that the defendant fulfilled the diagnostic criteria for cannabis abuse and possible dependence (based on daily heavy use of that drug for some 10 years) and made a differential diagnosis of drug-induced psychotic disorder, the drug being cannabis, which she discounted because of the ongoing severity of his illness while medicated and in the absence of drug use. Indeed intoxication was not considered by any of the psychiatrists as a factor in the present case.
Dr Aboud also diagnosed paranoid schizophrenia. He noted that the defendant’s psychotic symptoms appeared to have been consistently manifest for many months prior to the events in question. Dr Aboud noted that the defendant’s delusional belief system involved decapitation and homicide and that he had incorporated the victim’s family into his beliefs.
I note that Dr Reddan also opined that the defendant suffered from schizophrenia, but of an undifferentiated type. Nothing turns on that slightly different diagnosis. It is apparent that all the reporting doctors were of the view that the defendant suffered and continues to suffer from a very serious schizophrenic illness.
Unsoundness of mind
Dr Aboud
In his report of 7 May 2008, Dr Aboud expressed the opinion that the defendant was, as a result of his mental illness, deprived of the capacity to know that he ought not to do the acts the subject of the charges. He stated:
“... it is my opinion that at the material time he was deprived of the capacity to know that he ought not do the act, and that this deprivation was as a result of delusional beliefs arising from the paranoid schizophrenic illness. He believed that his neighbour [Mr S] was a demon who wished to harm him. He believed that it was in his own interests to kill [Mr S]. He appears to have incorporated [Mr S’s] family into his complex delusional belief system.”
In discounting intoxication as a factor, Dr Aboud observed in respect of the defendant that:
“His psychotic symptoms appear to have been consistently manifest for many months prior to the time of the alleged offences. Since then he has remained psychotic in hospital for over six months, even with anti-psychotic medication, and in the absence of cannabis. He still maintains his psychotically-driven homicidal intent toward [Mr S]. He maintains his sense of justification in relation to his behaviour at the material time.”
Dr Aboud noted that there were also a number of non-psychotic motivational factors (anger, resentment, slight, sexual jealousy and frustration) for the defendant’s strong negative feelings toward Mr S and his family. He did not consider, from a clinical point of view and having been the treating psychiatrist for some time, that anger or other ordinary emotions could be seen as a sufficient explanation for the conduct the subject of the charges. In giving oral evidence Dr Aboud stated:
“…I’m wholly convinced that… [the defendant’s] delusional beliefs deprived him of his moral decision-making ability…. What is clear to me is that he was deprived of the capacity to know that he ought not to do this act from a moral point of view because of his delusional system about evil and God and where he stood in that. … He felt morally justified to do what he did, and still does.”
Dr van de Hoef
In her report of 3 September 2008, Dr van de Hoef stated:
“In my opinion, at the time of the offences, [HW] was suffering from severe undiagnosed untreated schizophrenia. He was floridly psychotic, and was thought disordered. He also had a number of powerful persecutory delusional beliefs, and possibly also visual and auditory hallucinations (including command hallucinations) about many things, but particularly his neighbours, the [The S’]. I think he believed they had to die, for a variety of psychotic reasons probably related to a delusional belief [Mr S] had decapitated him in a past life, and that he must respond, as a ninja.”
Dr van de Hoef supported a defence of unsoundness of mind on the basis of a deprivation of both the capacity to know and the capacity of control. She noted that while the defendant was a chronic heavy user of cannabis, and had used it at some time the day before:
“… [the defendant’s] illness was so severe that it deprived him of the capacities to know he ought not do the act(s), and of the capacity to control his actions. I think this illness was such it would have caused the deprivation, whether he was intoxicated or not. … He was utterly compelled to commit the offences regardless, because of the severity of his psychotic symptoms.”
Dr van de Hoef considered that the defendant had been psychotic for some considerable time before the events in question and, in relation to the loss of capacity for control, stated when giving evidence that her clinical view on reading all of the available material and having examined the defendant was that “this was a very swift, silent, frenzied attack” in circumstances where the defendant was psychotic and “had completely lost control and could not reason and could not stop”.
Dr Reddan
Dr Reddan examined the defendant on 25 September 2008 and provided a report dated 28 September 2008. She agreed with the other examiners that at the time of the events on 3 October 2007 the defendant “was suffering from psychotic symptoms and in particular, it is likely that he had incorporated the neighbour, Mr S into his bizarre, fragmentary, delusional system involving the underworld”.
While accepting that on the day in question the defendant was suffering from a mental disease, Dr Reddan observed that the defendant was also “harbouring considerable animosity towards Mr S for a number of reasons, not all of which were related to his psychosis”. In this regard she referred to the matter of money being owed to the defendant. She also noted that the defendant:
“…had been instructed under threat of harm to stay away from young [X] by [Mr S] and [Mr S] had refused to accept his apology. He was similarly harbouring some hostility toward [Ms N] as she had refused to accept an apology he had offered a few days earlier and she too had asked him to leave [X] alone.”
Dr Reddan stated the following opinion:
“The acute precipitant to the offences however, was acute anger and rage toward members of his own family which were then displaced on to those about whom he already felt animosity. The acute precipitant to the murder of [Ms N] was anger, and the offences were carried out impulsively, although he had been thinking of harming [Mr S] for a period of time. There was also a longitudinal background history of fantasy about fighting and killing and a previous preoccupation with horror and martial arts movies.”
In her report, Dr Reddan opined that there was no evidence that the children had figured in the defendant’s more bizarre thinking. However, in oral evidence Dr Reddan accepted that indeed the defendant’s record of interview revealed that he had reported to police that he had been thinking for some time of using his sword to “maim and kill, disfigure” Ms N, Mr S and the children.
In dealing with the issue of deprivation Dr Reddan opined:
“There is no evidence that his mental disease deprived him of the capacity to control his actions. He had thought of killing [Mr S] earlier but had not done so, and he had therefore not acted on his first impulse. He has also given a variable history of seeing a vision which instructed him to kill [Ms N] some time earlier and again, he did not act on this. When angry earlier he had been able to restrain his conduct. Furthermore, he could have killed the children but it is apparent both from the record of interview with the police and subsequent statements, that he desisted from doing so because they were children, suggesting that he was not deprived of a capacity to control his actions or of the capacity to understand what he was doing in relation to the children nor of the capacity to know that he ought not do the offences in relation to the children.”
While Dr Reddan stated in her report that she did not consider that the defendant was deprived of any of the capacities, she did accept that he was suffering from an abnormality of mind arising from his schizophrenic illness such as to substantially impair his capacity to know that he ought not do the act of murder and therefore supported a defence of diminished responsibility to that charge.
Dr Reddan’s opinion in relation to the capacity to know was that there had been no deprivation but that the capacity had been impaired and substantially so. Her view that there had not been a complete loss of the capacity to know appears to have been influenced primarily by her perception that the defendant was morally aware that he ought not to kill the children and that he had desisted in his attempt to do so. Dr Reddan accepted that the difference between substantial impairment and deprivation in the circumstances of the case was a fine one.
In considering the defendant’s capacity to know that he ought not do the act constituting the offence, it is the capacity for moral judgment, not an understanding of lawfulness, of which the defendant must be deprived. The defendant must be rendered incapable of knowing right from wrong, not legality from illegality (R v Stapleton (1952) 86 CLR 358 at 372). In Stapleton the High Court endorsed the test formulated by Dixon J in R v Porter (1933) 55 CLR 182 at 189 - 90, “If through a state of mental disease or natural mental infirmity the defendant could not reason about the matter with a moderate degree of sense and composure it may be said that he could not know that what he was doing was wrong…. What is meant by wrong is wrong having regard to the everyday standards of reasonable people”. In other words the inquiry is whether, as a result of a state of mental disease, the defendant was disabled from knowing that it was a wrong act to commit in the sense that ordinary reasonable men and women understand right and wrong, and whether he was disabled from considering with some degree of composure and reason what he was doing and its wrongness, (Porter at 190).
When Dr Reddan was pressed about the issue of deprivation of the capacity to know in terms of the test referred to above, she altered her opinion and conceded that there was a deprivation of capacity in respect of the acts committed on the day in question. She accepted that the defendant was deprived of the capacity to think rationally of the reasons that ordinary people would consider relevant as to whether the acts in question were morally right or wrong, and unable to reason about the matter with a moderate degree of sense and composure about their wrongness, due to his schizophrenic illness.
Conclusion
I accept the unanimous evidence that the defendant suffered from a very severe schizophrenic illness. Having regard to the detailed reports of Drs Aboud and van de Hoef and their lucid and well articulated oral evidence, I am satisfied that as a result of his mental illness the defendant was deprived of the capacity to know that he ought not to do the acts in question. I note the clinical advice from the assisting psychiatrists in support of the views which those doctors expressed as to the deprivation of the capacity to know. And while Dr Reddan initially in her report was of the view that there was a substantial impairment but not a deprivation of that capacity, she moved away from that view to one accepting that the defendant was deprived of that capacity. I note the evidence of Dr Van de Hoef that there was also a deprivation of the capacity for control and the clinical support of that view by one of the assisting psychiatrists, however I prefer to base my conclusion as to unsoundness on a deprivation of the capacity to know. In the circumstances I find that the defendant was of unsound mind at the times of the alleged offences.
Orders
It is abundantly clear that a forensic order is required in the circumstances of this case, given the severity of the defendant’s mental illness which requires ongoing significant treatment in a secure environment, the very serious nature of the alleged offences and the need to protect the community. I order that the defendant be detained to the Park High Security Program Authorised Mental Health Service. I note the evidence that the defendant remains very dangerous and in those circumstances no limited community treatment is approved.
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