Re HWA
[2010] QMHC 5
•29 April 2010
MENTAL HEALTH COURT
CITATION:
Re HWA [2010] QMHC 5
PARTIES:
(1) REFERENCE BY THE DIRECTOR OF MENTAL HEALTH AND THE PATIENT’S LEGAL REPRESENTATIVE IN RESPECT OF HWA IN RELATION TO THE OFFENCES ON 15 AUGUST 2008
(2) REFERENCE BY THE DIRECTOR OF MENTAL HEALTH IN RELATION TO THE OFFENCE ON 13 JANUARY 2009
PROCEEDING NO:
31 of 2009
DELIVERED ON:
29 April 2010
DELIVERED AT:
Brisbane
HEARING DATE:
17-18 March 2010
JUDGE:
Ann Lyons J
ASSISTING PSYCHIATRISTS:
Dr J Lawrence
Dr E N McVieFINDINGS AND ORDERS:
1. That the defendant was of unsound mind at the time of the alleged offences on 15 August 2008 except for the offence of attempted murder;
2. That in relation to the offence of attempted murder on 15 August 2008 there is reasonable doubt which does not exist as a consequence of the defendant’s mental condition;
That elements of the disputed offence of attempted murder are elements of the alternative offences of assault occasioning bodily harm whilst armed with a knife (s 339(3)) or assault on a police officer in execution of her duty (serious assault) (s 340 (1)(b))3. which are not disputed and that when the alternative offences were committed on 15 August 2008 the defendant was of unsound mind;
4. That the defendant was of unsound mind at the time of the alleged offence on 13 January 2009;
5. That the defendant be detained as a forensic patient in The Park - High Security Program Authorised Mental Health Service. Limited Community Treatment is not approved.
CATCHWORDS:
MENTAL HEALTH – DECLARATION OR FINDING OF MENTAL ILLNESS OR INCAPACITY – where defendant charged with seven offences arising out of an incident in August 2008 including attempted murder, unlawful wounding, two serious assaults of police officers, endangering children, going armed so as to cause fear and possession of a knife in a public place – whether the defendant was of unsound mind at the time of the offences
MENTAL HEALTH – DECLARATION OR FINDING OF MENTAL ILLNESS OR INCAPACITY – where defendant was charged with assault occasioning bodily harm in January 2009 to a nurse whilst detained in a High Secure Unit – whether the defendant was of unsound mind at the time of the offence
Stapleton v The Queen (1952) 86 CLR 358
Re SAM [2003] QMHC 3Mental Health Act 2000 (Qld) ss 238, 267, 268, 269 and Schedule 2
Criminal Code 1899 (Qld) ss 27, 306, 339, 340COUNSEL:
C Morgan for the Defendant
B Lang for the Director of Mental HealthA Lossberg 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)
ANN LYONS J:
Background
The defendant is charged with seven offences which occurred on 15 August 2008, including attempted murder, unlawful wounding, two serious assaults of police officers, endangering children, going armed so as to cause fear and possession of a knife in a public place. Those offences all arose out of a confrontation with police at her residence involving one of her two year old twin sons.
A Family Court order was in place which stipulated that the defendant could only have contact with the twins with the consent of their grandparents. On 15 August 2008 whilst shopping with the twins and their grandfather, the defendant departed with her son and went to her residence. She then made a distressed call to police advising them that she had kidnapped her son as she had concerns about his safety.
Police attended her home and were advised by the defendant that she was armed with a knife and a gun. She subsequently came out of the house with the child in her arms wrapped in a doona and approached officers. She produced four knives to police and then sat on the footpath. There was then a standoff with police for about 45 minutes. Ultimately, during a struggle with police as they removed the child, the defendant produced another knife with her right hand. During the struggle cuts were inflicted to a constable’s hand and another constable received abrasions to her stomach when she reached in to lift the child from the defendant’s arms.
The defendant was restrained and during a search two additional knives were located in her possession.
The legal representatives for the defendant and the Director of Mental Health have referred the question of the defendant’s mental condition at the time of those alleged 2008 offences to this Court for determination.
The defendant is also charged with assault occasioning bodily harm of a staff member at The Park Centre for Mental Health on 13 January 2009, during her detention at that facility for treatment. The Director of Mental Health has referred the issue of the defendant’s mental condition at the time of that alleged offence for determination.
Is there a reasonable doubt pursuant to s 268 of the Mental Health Act 2000 (Qld) that the defendant committed the offences?
The defendant has been charged with the attempted murder of a constable who was injured as she reached in to take the child from the defendant’s arms. The defendant does not dispute that injuries were caused to the constable but has consistently stated that she had no intention to kill her or cause her harm.
The attempted murder charge would seem to be based on the statement of the constable:[1]
[1]Statement of witness, Constable, 30 August 2008 at [39] to [49].
“A short time later, without any warning the defendant then stood up still cradling the young boy in her arms and started walking towards me.
I maintained my position on the footpath and at this time could not see the defendant’s hands as they were caught up in the folds of the doona cover that was wrapped around the child.
I stepped towards the defendant and placed my arms under the child cradling the child.
The defendant looked directly at me, smiled at me, and said ‘Don’t hurt my child’.
As she smiled I began to feel apprehensive and fearful.
As I went to take the child against my body I felt a sharp point push into my clothes at my waist and felt a burning to the skin on my stomach.
As I was in such great fear for my safety and that of the child, I then suddenly reefed the child from her arms up into my chest as I stepped back and yelled ‘She’s got a knife, knife knife knife.’ I felt a pulling on my clothes in the region of my waist as if something was caught. I saw that there was a hand around the right upper arm of the defendant. I was fearful of what the defendant had used to hurt me.
As I stepped back I saw in the defendant’s hand a light coloured handled kitchen knife with a metal blade approximately 15cm long.
After about 5 steps back I turned and moved quickly further down the footpath and around the corner of the building facing [the road] under the cover of trees. At this time I was extremely concerned for the safety of the child and wanted to ensure he was out of harms way.
The young boy in my arms was crying so I held him gently to my chest soothing him.
I continued to feel the burning in my stomach region just above my belt and waist band of my pants.”
The defendant has given a reasonably consistent version of events which is that she had no intention to harm or indeed kill the constable. Dr Mann, psychiatrist recounts the version which the defendant gave to him in November 2008 in the following terms:
“I assessed [the defendant] at the HSIS shortly after [her arrival] and on two further occasions in that week. Rapport remained superficial and she was reluctant to discuss the details of the alleged offences. She expressed concerns about her eldest son, being in danger and suggested that her [former partner may be sexually abusing him].
When she did talk about the alleged offences, she reported that on the night before it happened she ‘couldn't sleep’ and that she heard the voice of [her eldest son] in the room next to hers in the hostel where she was staying […]. She said that she heard her son crying. She said she thought that the people next door had her son and then heard them get up and leave. She says that this made her ‘go wild’ because ‘I couldn't save him’.
She said that on the next day, which was the day of the alleged offences, she went to visit her young twins for a scheduled visit. She said that they all went shopping and that she heard a voice saying ‘run’ and then took her son … She reported hearing the voice of her other twin, … saying ‘you promised you would save me’. She then kept on running out of the store and jumped in a taxi and returned home. She said ‘I wanted to save him’ and ‘I thought if I had one they would bring the other one to me’. She then returned to the hostel and gave him water and a shower, then dried him and put the same nappy back on.
She reported that she then saw [her ex-partner] in his car outside the house and found this ‘intimidating’. She saw the police arrive and said that she ‘went to negotiate’ with her son wrapped in a sheet. She said ‘seven cops jumped on me and my son was slipping’. She said ‘I pulled a knife’ and ‘a female cop lunged forwards to get the child and lunged onto my knife’. She said that she heard police shout at her to drop the knife but that an officer was holding her so hard that she could not comply with the instruction.
She said that the knives were steak knives that she had taken from the kitchen of her hostel and that she had got them prior to the police arriving ‘for protection’. She said ‘I did it in self defence’ and that she thought her son … was at risk of sexual abuse due to ‘things my older son said’. She said that she believed [her son’s] father had sexually abused him.
[The defendant] believed that she had about six knives in total. She said that police told her to ‘calm down and cooperate’ and that they took her son and that she ‘never fought back’. She said ‘once they had my child I let go’.”
Dr Rigby who examined the constable on the day of the incident detailed the injuries to the constable as “a small superficial laceration in the area just above her umbilicus. This had been made through her jumper and shirt, although no holes were visible in her shirt or jumper”.[2]
[2]Statement of Dr Rigby, dated 16 March 2010.
Section 268(1) of the Mental Health Act 2000 (Qld) (the Act) provides that the court must not make a decision as to whether the person the subject of the reference was of unsound mind when the alleged offence was committed if there is a reasonable doubt the person committed the alleged offence.
In my view, there is a reasonable doubt that the defendant committed the offence of attempted murder. Section 306(a) of the Criminal Code 1899 (Qld) (the Code) provides that any person who “attempts unlawfully to kill another” or “with intent unlawfully to kill another does any act, or omits to do any act which it is the person’s duty to do, such act or omission being of such nature as to be likely to endanger human life; is guilty of a crime”. It is clear that it is an essential ingredient of attempted murder that the defendant intended to kill. In my view, in the circumstances as set out above there is indeed a reasonable doubt in relation to the defendant’s intention to kill. The injuries to the constable were minor and could not have been inflicted with any force. Furthermore, it is clear that a number of police were involved in restraining the defendant at the time the laceration occurred. The defendant states her arms were being held at the time the injury occurred. The constable also indicates that she saw someone holding the defendant’s arms at the time she lifted the child. It is clear that the defendant was not only holding the child but also had a number of knives wrapped in the doona and may not have known the precise location of any knife at a particular time.
I consider that given the nature of the injury, the location of the knives, the nature of the struggle which involved a number of officers with at least one officer restraining her arms, that there is indeed evidence in support of the defendant’s view that the injury occurred during the struggle while she was being restrained. There is therefore evidence that the defendant had no intention to kill when the laceration occurred. There is therefore a reasonable doubt that the defendant committed the offence of attempted murder.
Can the court make a decision in relation to an alternative offence?
Section 268(3) of the Act however, provides that if the elements of a disputed offence are elements of another offence (the alternative offence), subsection (1) does not prevent the court making a decision under s 267(1)(a). It is clear that this section is to be interpreted broadly and is not limited to alternative offences which have exactly the same elements but, in fact, includes alternative offences established on the same evidence. In the present case, there are a number of alternative offences available which do not contain an element of intention. I do not consider the defence of accident could come in to play in relation to these alternative offences in circumstances where the defendant deliberately armed herself with knives and clearly took those knives into a confrontation with police. In my view, a reasonable person would have foreseen that taking eight knives into a confrontation with police meant that someone might get injured.
There is no dispute that the defendant’s conduct in relation to the constable could constitute assault occasioning bodily harm whilst armed with a knife (s339 (3)) or assault on a police officer in execution of her duty (serious assault) (s 340 (1)(b)). Accordingly, the court can proceed to make a determination in relation to unsoundness of mind in relation to the alternative offences.
Is there a dispute of facts in relation to matters which are substantially material to the opinion of the experts pursuant to s 269?
Counsel for the Director of Public Prosecutions submits that there is a further reason why the court must not make a determination, and that is that there are matters that are substantially material to the opinion of the experts that are so in dispute that s 269 of the Act precludes the making of a determination because it would be unsafe.
“269 Dispute relating to substantially material fact
(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.”
Counsel for the Director of Public Prosecutions argues that the inference from the constable’s statement[3] is that the defendant intended to stab or harm police. This is on the basis that, whilst the defendant may have handed over four knives to police during the incident, because she continued to conceal four knives on her person and because she did not drop or reveal any knives to police when handing over her child to the officer, she must have had this intention.
[3]Statement of witness, Constable 30 August 2008 at [39] to [43].
Counsel argues that the reports of Drs Sundin and Beech which support a finding that the defendant was of unsound mind were arrived at
“by discounting the inference, which is fairly open on the evidence, that [the defendant] had intended to harm the police officers. It is submitted that a finding of fact that [the defendant] had intended to harm the police is a fact substantially material to the opinion of the expert witnesses. To arrive at their conclusions, the doctors discounted that fact and based their opinions on the self-report of [the defendant].”
Counsel submits therefore, that the “disputed fact”, namely the intention to harm police, happened just before or at the time the alleged offence was committed as per s 269(2)(a) of the Act.
I do not consider there is any substance to this argument. The matters raised are not facts which are substantially material to the opinion of the reporting doctors which are so in dispute that the court is precluded from deciding the issue. It is clear that the factual basis of the reports of the two doctors is not in dispute. The facts are as detailed in the reports. It is the conclusions drawn by the experts based on the undisputed facts which are in issue. Ultimately, that issue as to whether there is a reasonable doubt as to the defendant’s intention to kill is a matter for the court to determine.
Furthermore, there is no evidence that the issue of the defendant’s intention was in fact material to the opinions of Dr Beech or Dr Sundin in determining whether she suffered from a disease of the mind and whether, because of this disease, she was deprived of one of her relevant capacities.
Dr McVie addressed the issue of a dispute of facts on the attempted murder charge. She confirmed Dr Sundin’s view that, in relation to the whole collection of charges in that one episode, the defendant was being driven primarily by psychosis and she was deprived of the capacity to know she ought not do the act. Dr McVie indicated that if an alternate offence which did not involve intent was substituted for the attempted murder charge, then she would advise that all the offences from that episode be considered in the same light, and confirmed the opinions of Drs Beech and Sundin.
Counsel for the Director of Public Prosecutions also argues that a further fact in dispute is that Drs Beech, Sundin and Heffernan’s diagnosis of schizophrenia discounts the defendant’s claim that she ‘faked’ her mental illness which is recorded in the St Vincent Hospital Records. Counsel argues that the defendant’s previous history is essential to the diagnosis of schizophrenia and her claim that her illness was faked is ‘something about the person’s past psychiatric treatment’ (s269(2)(b) of the Act).
I do not consider that there is any substance to this argument either. It is clear that the doctors do not dispute the fact of the entry in her hospital records – the fact of its existence is not in dispute. I do not consider that a portion of a medical entry from many years ago which simply records the defendant claims that she “faked” her mental illness is in fact evidence which is “substantially material” to the opinions of the experts. It is clear that these doctors took the evidence into account but considered that it was not, in fact, material because it is the nature of her mental illness that she lacks insight and makes these claims.
Dr McVie addressed the issue of “faked symptoms” and stated:
“I would advise that a person presenting stating that they have a particular diagnosis and particular symptoms … does not necessarily reflect any level of insight at all or any understanding into the nature of the disorder or the nature of their symptoms.”
I consider therefore, that the court can proceed to make a determination in relation to the references.
Was the defendant of unsound mind at the time of the offences in August 2008?
The court had the benefit of oral evidence from the following psychiatrists, together with their written reports or opinions as set out below:
(i) Dr Jonathan Mann, Reports pursuant to s 238, dated 24 March 2009, 25 May 2009, 2 April 2009 and 15 March 2010.
(ii) Dr Josephine Sundin, Reports dated 18 December 2008 to Legal Aid.
(iii) Dr Michael Beech, Reports dated 4 September 2009 and 11 November 2009.
(iv) Dr Donald Grant, Report dated 26 October 2009.
(v) Dr Edward Heffernan psychiatrist, from the Prison Mental Health Service, assessment dated 20 August 2008, opinion dated 3 March 2010.
(vi) Assessment by Dr Nellie dated 15 August 2008 and Interview notes dated 2 September 2009.
There is a difference of opinion between the psychiatrists as to the appropriate diagnosis for the defendant’s mental condition, as well a difference of opinion as to whether she was deprived of one of the relevant capacities at the time she committed the offences such that she was of unsound mind. Dr Sundin and Dr Beech are of the view that the defendant has a diagnosis of paranoid schizophrenia. Dr Sundin also considers that she has a borderline personality disorder and Dr Beech considers it is a mixed personality disorder. Both psychiatrists consider that she was deprived of the capacity to know she ought not do the act and was of unsound mind at the time of the offences in August 2008.
Dr Grant and Dr Mann, however, do not consider that the defendant was deprived of one of the relevant capacities and was not, therefore, of unsound mind at the time. Dr Mann considers that the defendant has a substance induced psychotic disorder with hallucinations and borderline personality disorder and does not have schizophrenia. Dr Grant considers that the defendant has a severe personality disorder with borderline and antisocial traits and possibly complex post-traumatic stress disorder with recurrent episodes of drug induced psychosis.
The evidence of Dr Mann and Dr Grant can be summarised as follows:
The evidence of Dr Mann
In his report of 24 March 2009 Dr Mann stated that in his opinion at the time of the offences the defendant suffered from a Substance Induced Psychotic Disorder with Hallucinations (DSM-IV-TR 292.12) due to amphetamines and cannabis. Dr Mann stated that she admitted substance abuse just days prior to the alleged offences and she also stated that she had, at times, experienced “very severe auditory hallucinations” after abusing “speed”. The defendant had also indicated she had suffered amphetamine, cannabis and opiate dependence in the past. He continued:
“In my opinion [the defendant] suffered from Borderline Personality Disorder (DSM-IV-TR 301.83). This was characterised by transient stress related symptoms, impulsivity, labile affect, unstable interpersonal relationships and dissociative symptoms. This could also be conceptualised as Complex Post Traumatic Stress Disorder.”
Dr Mann concluded that he did not believe that the defendant’s current clinical picture or the history available was convincing of a diagnosis of Schizophrenia (DSM-IV-TR 295). He said that he found the defendant’s description of hearing voices and distressing beliefs, to be “inconsistent, fluctuating and suggestive of dissociative symptoms. She lacked any convincing symptoms of disorganised speech or behaviour or any negative symptoms.” He considered, however, that it was plausible that a more convincing picture of schizophrenia could develop in the future and he maintained schizophrenia as a differential diagnosis.
The Report of Dr Grant dated 26 October 2009
In Dr Grant’s opinion, the most relevant diagnosis was one of a severe personality disorder with borderline and anti-social traits. He believed her history of very severe abuse throughout her childhood was consistent with a diagnosis of severe personality pathology in adulthood which, in the alternative, could be described as complex post-traumatic stress disorder. He made reference to her unstable relationships, emotional instability, deviousness and dishonesty and violent behaviour in response to frustration. He also referred to the defendant’s history of severe chronic polysubstance abuse and thought it likely that she had suffered recurrent episodes of drug induced psychosis because of it. The defendant described to Dr Grant how she believed that her amphetamine abuse was particularly relevant in producing psychotic symptomatology.
Dr Grant considered it unsurprising that at times the defendant had been thought to suffer from schizophrenia, with the most relevant symptoms being hallucinations and paranoid ideation. On close examination of these phenomena, however, Dr Grant thought them to be more suggestive of dissociative phenomena, rather than true auditory hallucinations which are associated with a schizophrenic illness. Dr Grant went on to say that the hallucinations experienced by the defendant were unusual for a schizophrenic illness in that they seemed to represent a complex narrative as if describing a vivid fantasy or fear that the defendant was having, which, in his opinion, was a projection of her own psychological conflicts and which occurred in her dreams or woke her from her dreams. Dr Grant saw those visual illusions or hallucinations as having a strong association with her own childhood abuse. He reported the defendant as having no bizarre delusions or showing any thought disorder and, in his opinion, she had not developed negative symptoms. Dr Grant reported no deterioration of her personality over the years, despite reports of psychotic symptomatology.
Dr Grant concluded:
“In my opinion, the psychotic symptoms are much better explained as symptoms of Chronic Complex PTSD or Dissociative Phenomena than they are as symptoms of a Schizophrenic Illness.
A further agreement against Schizophrenia would be the fact that [the defendant] does not seem to have responded to antipsychotic treatment as would be expected if she had Schizophrenia. In arguing against Schizophrenia as an explanation for her phenomenology, I am not intending to imply that the symptoms are malingered. Rather, I am indicating that in my opinion the symptoms are arising from a different mechanism than hallucinations seen in Schizophrenia.”
Dr Beech’s evidence
Dr Beech provided a number of reports and his report dated 4 September 2009 states:
“[The defendant is charged] with a range of offences that occurred in a single incident in August 2008.
She has a long-standing pre-existing psychiatric history with a number of admissions often for suicidal or self-harming behaviours that at times have occurred on a background of symptoms of psychosis that have included auditory hallucinations and pseudo-hallucinations as well as persecutory ideation and delusions. Some of the latter have involved beliefs regarding her oldest son and a concern that he was being abused, with some around him involved in a conspiracy.
In the past these symptoms have often occurred in the context of significant persistent and long-standing substance abuse.
However, some of her presentations have also occurred in the context of stressful life-events and she has been perceived as being manipulative and exploiting her history of mental illness to gain support during periods of accommodation instability, inter-personal crises, and periods of depressed mood.
In my opinion the longitudinal picture is consistent with her having a severe Mixed Personality Disorder with unstable mood, repeated self harm, drug use, and anti-social behaviour. This can be seen to have arisen from a prejudicial childhood of abuse, instability, and the early use of substances.
There is clearly a history of document Poly-substance Abuse and probably Dependence.
In my opinion, however, she also has the mental illness Paranoid Schizophrenia. In the past this has been difficult to clarify given her drug use. However, the continued presence of persecutory delusions, auditory hallucinations, and odd behaviour that were noted on assessment at the watch-house and which continued in prison and were documented on admission to the Park I believe support the presence of Schizophrenia in the absence of drug use. Support from this comes from her family history.
It is also likely that her behaviour in The Park has reflected recurrent periods of intermittent psychosis as well as demanding and manipulative behaviours associated with drug-seeking and her personality disturbance.
I believe that her symptoms of psychosis are best seen now as arising from the mental illness rather than a severe personality disorder. I would see them now as the residua occurring in someone on antipsychotic medication who has partially responded rather than dissociative symptoms. I accept that her affect is preserved and there is a paucity of negative symptoms, and that she does not now display formal though (sic) disorder. However her mental state now appears to have substantially improved since the time of her arrest and it is likely that affective perplexity and thought disorder were noted by the Court Liaison Service and have since dissipated. The watch-house assessment by Dr Neillie would be helpful in confirming this.
Essentially I believe that the opinion of Dr Heffernan, that she had a psychotic illness that had partially remitted by the time she was referred to The Park, is the most appropriate one.
In my opinion, it is more likely than not that at the time of the alleged offences, [the defendant] was deprived by her mental illness of the capacity to understand, to think and reason with a moderate degree of sense, in a moral sense, to know that she ought not to do the acts.
Her description of increasing concern for her children is consistent with earlier documented accounts of her paranoid ideas and hallucinations. Deterioration of her mental state was noted in June 2008 by PAH Communith (sic) Mental Health Services. Compliance with medication was poor. Her call to 000 alludes to themes of her paranoia. Soon after her arrest she was assessed as being overtly psychotic.
In my opinion this indicates that her actions were primarily the result of a relapse of her psychosis. Their duration I believe indicates that the psychosis was not a brief psychosis sometimes seen in those with severe personality disorder.
Another view is that her actions were those of a manipulative woman who had abducted her child during a contact visit. This is supported by the generally purposeful manner of her behaviour and the notable absence of any psychosis detected by the police negotiator. I am however more persuaded by the specialist assessments of Dr Neillie and Dr Heffernan soon after her arrest than the police officer’s appraisal.
[The defendant] disputes the charge of attempted murder and gives an alternative cogent account of her behaviour. In my opinion that dispute does not arise from her mental illness.
There are, as Dr Mann notes, differing accounts of substance use. In my opinion there is nothing to suggest that [the defendant] was intoxicated although earlier drug use may have caused the deterioration in her illness.
In my opinion [the defendant] is fit for trial. She is well aware of court processes and able to instruct her counsel. She is able to plead. I believe that she is now able to follow court proceedings. There may be some adverse effect of her mental state but I believe that her treating team would be able to provide sufficient support.
Should the Court find that [the defendant] is of unsound mind then in my opinion a Forensic Order is warranted given her history on illness, drug use and poor compliance with treatment.
Rather than a no-contact order in relation to her children, I believe that the matter should be brought to the attention of the Department of Child Safety.”
In his further report dated 11 November 2009 Dr Beech stated that he remained of the opinion that the defendant suffered from paranoid schizophrenia as well as having a severe mixed personality disorder, both of which occurred in the context of significant past polysubstance abuse. He confirmed his view that at the time of the offences the defendant was suffering from psychosis and concluded:
“However, I am now more of the opinion that the psychosis was a result of her Schizophrenia which had relapsed in the context of most likely poor medication compliance, the stress of contact with her ex-partner, and significant substance use in the weeks preceding the events.”
Dr Beech in his evidence at the hearing also stated that as the defendant’s psychotic symptoms persisted after her arrest and were still present when Dr Heffernan saw her on 20 August 2008 when they should have dissipated, this was a further reason why he considered that her illness of schizophrenia was the cause of the psychosis rather than the substances. He also noted that the defendant was given antipsychotic medication after her arrest but that the symptoms were present three months later as she was transferred to the High Security Unit in November 2008 due to an exacerbation of her psychosis. Dr Beech considered that there were persisting symptoms of psychosis which fluctuated. He considered that this was the nature of her schizophrenia because there were a number of stressors which came into play. He also noted the significance of her personality disturbance and the impact it would have on her schizophrenia. In response to questions from assisting psychiatrist Dr Lawrence, he continued:[4]
“There’s nothing protective about schizophrenia, in terms of a personality disorder. It’s most likely going to exacerbate it at times because people with schizophrenia, even when their most positive symptoms of hallucinations and delusions start to remit, there’s a lot of negative emotional experiences, you know, of dysphoria, irritability and things like that which would exacerbate a personality disturbance. On the other hand it works the other way. I think a personality disorder exacerbates schizophrenia, too, because stress itself can lead to partial exacerbations of schizophrenia and people with personality disorders are easily stressed or can be stressed by circumstances.
So in determining this it’s - it would be important not to be blinded or too side tracked by the presence of the personality disorder because that’s going to be expressing itself at various times. There are going to be psychotic symptoms also fluctuating, perhaps, in their intensity and severity?-- There are, and I think at times the two work together; as I think now after I’ve been questioned some of the things that happened during that triple 0 call might be personality disturbance coming through as an overlay of the psychosis. There are certainly some things, you know, like hiding the razor blades in the soap and then handing them up, those things, which speak to a personality disturbance. There are some times where she’s - seems to have gone to the nurses said, ‘I’m hearing voices. Please give me medication.’ They haven’t done and that she’s gone and settled. They speak to someone with limited impulse control, someone who wants just gratuitous satisfaction of negative state. I would see that, probably, as personality coming through, but it - I don’t think in her - this level of personality disturbance, even though it’s severe, explains the whole picture.
And at the time of these events for which she’s been charged you are clearly of the belief that she was acting under the influence of her psychotic beliefs-----?-- I do.
-----during this period of time?-- I do, and I accept that she wasn’t disorganised. I accept that to laypeople associating with the evidence of her psychosis would not have been overt, and I accept certainly that she is able to plan some things, but I think that just speaks to the nature of her psychosis. It’s a paranoid one, I believe, and I think that she was - that was the significant factor operating at the time, but clearly her personality disturbance may have contributed to the triggering and may have been added to its display.
And at the time of these events over which she’s been charged, particularly the - perhaps the attempted murder or those events, I gather you feel that she was deprived of the capacity to know that she ought not to do that act at that particular time?-- Yes. I mean, I think she knows - if you ask her did she know legally that she shouldn’t do that; well, I think she does know legally she shouldn’t do that. She rang the police and said, ‘I’m doing this.’ I think she knows it was against the law, but the driving force was her - she had an agenda that she needed the police there for her.
Do you think there are any other capacities that might have been deprived at that time?-- Well, the capacity of control in – I’m not quite sure what that would mean in her state because I think it seems to me they were negotiating with her, police became concerned; they rushed her. Now, I don’t think that she was controlled by her psychosis, but the ability to control your actions when the police will rush would have been disturbed, I think, but obviously that is not knowing what - you know, being sensibly able to respond. So I would interpret that as not knowing she ought not to do those things when the police rush you, that you shouldn’t just hand over your child, and lay down on the ground, but I guess another way of looking at it is that she just acted when the police rushed her because she wasn't thinking well enough, and so she wasn't able to control herself.”
[4]Transcript Day 1 p 42 l 25 to p 43 l 5.
I consider Dr Beech’s analysis of the defendant’s history to be particularly persuasive. His view is also endorsed by the reports of Dr Sundin and the views of Drs Heffernan and Neillie, as well as the opinions of the assisting psychiatrists.
The Report of Dr Sundin of 18 December 2008
In her report of 18 December 2008, Dr Sundin opined that the presence of paranoid schizophrenia in combination with borderline personality disorder would satisfy the definition of mental disease or natural mental infirmity as described in s 27 of the Code. Dr Sundin was of the view that the defendant’s history of recurrent substance abuse over many years, and her intentional intoxication seven days prior to the offence, was not sufficient to explain her actions on the day of the offence. Dr Sundin considered the fact that the defendant, on her own admission, used “ICE” on one occasion only and then self-medicated with benzodiazepines in order to ensure that she slept in the seven days prior to the offence occurring, was not sufficient to negate the impact to the mental disease or natural mental infirmity. Dr Sundin further stated:
“I am of the opinion that [the defendant] was suffering sufficient mental disease as to prevent her from reasoning with any degree of calm or composure, to clearly think through the consequences of her actions and to fully understand the consequences of her actions. I consider that by virtue of the delusional ideation that is a persistent part of her psychosis that she was deprived of the capacity to know that she ought not to do the act. I would therefore support a defence of unsoundness of mind.”
Dr Neillie’s notes of 15 August 2008
In the notes he made during his assessment of the defendant on the evening of 15 August 2008, within hours of the offences, Dr Neillie noted that the defendant was “hallucinating” and he recorded that the defendant stated she could swear that she heard her son around her and that she “heard my son being strangled” and that she “ran out, naked, wrapped towel around but they had gone”. She then described hearing her son fall down the steps and then she heard other noises all night which she described as “real”.
Dr Neillie’s assessment on that night was that she was:
“Unkempt looking young woman. Preoccupied. Perplexed.
Limited engagement in interview. Little eye contact.
Lability of mood.
Thought disorder evident at times.
Described persecutory beliefs involving ex-partners
‘strangers’ and her son, possible delusions of reference.
Described auditory hallucinations – external in origin.
Insight – states dx with schizophrenia.
– recent experiences are ‘real’ not part of illness.”
He made the following notes in relation to the defendant:
“Currently presents with features of a psychotic illness-aetiology not clear
? Relapse of schizophrenia.
? Related to substances.
? Related to personality structure.”
The evidence of Dr Heffernan
There is also a note by Dr Heffernan that he saw the defendant whilst she was in prison on 20 August 2008, five days after the six offences, which records that she was “feeling a little better” and that the medication was “helpful” but that she was still continuing to hear the voice of her six year old child calling out to her and crying. She otherwise denied other psychotic phenomena. Dr Heffernan’s notes recorded that she had been smoking “ICE” and marijuana “daily” and that she took heroin “occasionally”.
In his Report of 3 March 2010 Dr Heffernan sets out the fluctuating nature of the defendant’s psychotic states and the persistence of her psychotic symptoms. He states:
“When I saw [the defendant] on 11/11/09 following her return from the HSIS it was apparent that she had benefited from inpatient treatment, as her psychotic symptoms and mood symptoms appeared to be improved. I was aware however, that she had been nursed in seclusion for the weeks prior to her return to custody as there were significant management concerns including allegations of medication misuse, attempts to escape the ward and a serious assault on a nursing staff member. She was on a relatively high dose of the antipsychotic medication at the time, Seroquen (300mg mane, 700mg nocte) and an antidepressant medication Cipramil 60mg nocte. During my initial assessment she was complained of dizziness and an examination revealed a significant postural hypertension. A review of her medication was required and a change to the slow-release preparation of Seroquel was made.
Initially throughout the remainder of November and December 2009 the defendant’s mental state remained stable, however in late December 2009 and early January 2010 she complained of a deterioration in her mood with symptoms consistent with a major depressive episode. Given that she was already on a high dose of Cipramil, I made a decision to change her treatment to an alternative antidepressant.”
The view of the assisting psychiatrist – Dr Lawrence
At the hearing Dr Lawrence considered that the episode on 15 August was consistent with the defendant suffering from an illness that deprived her capacity and therefore would qualify as unsoundness of mind.
Dr Lawrence stated that she very strongly favoured the clinical views of Drs Neillie, Heffernan, Beech, and Sundin, over those of Dr Mann and Dr Grant.[5] She considered that Dr Neillie’s evidence was particularly advantageous as his mental state assessment of the defendant was conducted within seven or eight hours of the events. She accepted the evidence of Dr Nellie in toto; that is that the defendant’s agitated and very disturbed presentation to him in the watch-house was consistent with psychosis. She stated that this was also endorsed by Dr Heffernan four days later and was maintained over the ensuing months to the point where the defendant was transferred at the request of Dr Heffernan to the High Secure Unit.
[5]Transcript Day 2 p 104 l 57.
She noted that both Dr Beech and Dr Sundin believed that the defendant is suffering from schizophrenia and that at the time of the index events she was suffering from auditory hallucinations and paranoid delusional beliefs of a conspiracy kind. Dr Lawrence confirmed Dr Sundin’s evidence that the defendant’s symptoms were maintained far longer than any brief reactive psychosis that could occur as a result of a borderline disorder or a drug induced psychosis and therefore qualified as schizophrenia. Dr Lawrence also agreed with Dr Beech’s evidence that although Dr Mann may have considered that the defendant’s symptoms did not support a strict diagnosis of schizophrenia, they certainly characterise some forms of schizophrenia. Dr Lawrence indicated that schizophrenia is not a unitary illness but more likely a syndrome or a collection of symptoms. She noted that Drs Nellie, Heffernan, Sundin and Beech all considered that the defendant is suffering from a prolonged psychosis which is fragile and can fluctuate in intensity.
Dr Lawrence added that Dr Mann and Dr Grant’s evidence of a personality disorder could have been influenced by the stage of the illness at which those doctors examined the defendant. She disagreed with Dr Grant’s view that the phenomenon described by Dr Neillie were disassociated phenomenon and not true auditory hallucinations. Further, Dr Lawrence believed that the defendant’s capacity was deprived on the day of the August 2008 offences and not merely impaired, as per Dr Mann’s evidence.
The view of the assisting psychiatrist – Dr McVie
Dr McVie concluded that a diagnosis of schizophrenia and severe personality disorder, in accordance with the evidence of Dr Heffernan, should be accepted. She placed significance on the fact that Dr Heffernan has conducted repeated clinical reviews of the defendant, he also conducted a thorough assessment of her past history and his initial assessment was within close proximity to the occurrence of the index offence. She noted that his diagnosis was in accordance with the diagnoses of Drs Beech and Sundin but was made independently.
In relation to the issue of unsoundness of mind, Dr McVie recounted the evidence of Dr Nellie, who documented a severe psychotic illness hours following the index offence, as well as Dr Heffernan, who gave a similar account of a florid psychotic illness some four days later. Dr McVie also stated that based on these descriptions as well as thorough evaluation of the evidence, Drs Beech and Sundin both gave a very clear opinion that the defendant was acting on her complex delusional ideas and was deprived of the capacity to know that she ought not do the acts.
Dr McVie noted that Dr Grant mainly saw features of a borderline personality disorder after examining the defendant in September 2009. However, she also notes that in Dr Grant’s report, he gives extensive descriptions of a variety of hallucinations with associated attached meaning. Dr McVie stated that in her experience the extent of the voices that were described at that time is far more than those experienced by “the standard person with a borderline personality disorder”.[6]
[6]Transcript Day 2 p 106 l 265.
Conclusion as to a finding of unsoundness of mind
Whilst I note the submission from the Director of Public Prosecutions that Drs Beech and Sundin have misconstrued the correct legal principles, I do not consider that there is any basis for that submission given the decisions of this Court in relation to the correct test as set out in Stapleton v The Queen[7], particularly the 2003 decision of Re SAM[8].
[7](1952) 86 CLR 358.
[8][2003] QMHC 3 at [13].
In coming to an appropriate determination in this matter, I ultimately prefer the opinions of Dr Beech and Dr Sundin because they are endorsed by the opinions of Dr Nellie and Dr Heffernan, who I consider were uniquely placed to assess the defendant. Dr Nellie assessed the defendant on the day of the offences on 15 August 2008 in the watch-house. Dr Heffernan has seen defendant as a psychiatrist within the Prison Mental Health Service and has been able to observe and assess her over a long period of time. Furthermore, I have also been greatly assisted by the views of the assisting psychiatrists who have also formed opinions which accord with those of Drs Beech and Sundin.
What is clear is that the defendant has had persistent psychotic symptoms which were observed by Dr Heffernan and Dr Nellie at the time the offences occurred in August 2008. It is also evident that those symptoms have continued. Indeed, all the psychiatrists note that the defendant has been severely psychotic at times and that she has acted on these psychotic beliefs in the past. It is also clear that these psychotic symptoms have continued in the absence of substances and that the episodes of psychosis are not brief.
I consider, therefore, that it is more likely than not that, at the time of the alleged offences, the defendant was deprived by her mental illness of the capacity to understand that she ought not to do the acts. I consider that on 15 August 2008 her psychosis was operating and she was being driven by her hallucinations and her delusional belief system when she did the acts. She was clearly still in this state when seen by Dr Nellie at 7.00 pm that night, which was some seven hours later.
I am satisfied that the defendant was of unsound mind at the time of the commission of the offences on 15 August 2008 except for the offence of attempted murder.
In relation to the offence of attempted murder on 15 August 2008, I am satisfied that there is reasonable doubt the defendant committed the disputed offence and that the doubt the defendant committed the disputed offence does not exist as a consequence of the defendant’s mental condition.
I am satisfied that elements of the disputed offence are elements of the alternative offences and I am satisfied that when the alternative offences were committed, the defendant was of unsound mind in relation to those offences at the time.
Intoxication
It is also clear that whilst the defendant may have had some substances in the days and possibly weeks leading up to the events in August 2008, the extent of her drug taking is uncertain. Whilst Dr Heffernan noted the defendant’s self report of drug taking at the time of the offences, Dr Neillie simply notes a history of past drug abuse before the incidents. The defendant denied any drug taking to Dr Beech. Accordingly, there is an inconsistent history as to what substances the defendant may have taken at the time of the offences and no drug testing was done after her arrest.
Whilst there was some suggestion that the defendant may have consumed a bottle of cough mixture on the morning of 15 August 2008, there was no evidence of what size the bottle was, how much was alleged to have been consumed, what time it was consumed or what the ingredients of the mixture were alleged to have been.
On the issue of intoxication, Dr McVie stated that although the defendant has a history of alcohol and drug use, the most consistent description was that she had not used for a couple of days prior to the offence. She also noted the lack of objective evidence of intoxication at the time. In relation to the cough medicine, Dr McVie indicated that even if it was ingested by the defendant and was a variety that contained pseudoephedrine, it could not have produced the level of symptoms displayed.
I consider, therefore, that whilst the drugs may have contributed to a relapse of her mental illness of schizophrenia, it was the illness which was the operative factor at the time of the offences. This is particularly so given that Dr Heffernan considered that her psychotic beliefs were continuing five days after she last had any substances.
The term “unsound mind” is defined by Schedule 2 to the Act to mean “the state of mental disease or natural mental infirmity described in the Criminal Code, section 27, but does not include a state of mind resulting, to any extent, from intentional intoxication or stupefaction alone or in combination with some other agent at or about the time of the offence”. I do not consider that the defendant’s state of mind at the time resulted from intoxication from drugs and whilst substances may have been present, I consider that the defendant was deprived of the capacity to know she ought not do the act due to her psychosis which was due to her mental illness.
The reference in relation to the offence in January 2009
In January 2009 whilst in the High Secure Unit at The Park, the defendant assaulted a nurse. She was charged with assault occasioning bodily harm on 13 January 2009. On that afternoon the defendant approached the nurse and requested cigarettes, which were kept in a locked drawer in her bedroom that only staff could access. The nurse took the defendant to her bedroom, leaned over her bed, unlocked the drawer and retrieved the cigarettes. After locking the drawer the nurse stood up to face the defendant and was punched in her left eye. As the nurse lay on the floor in a dazed state, the defendant stepped over her and pulled the ID swipe card from her belt. The defendant left the room and was later intercepted by other staff after she had proceeded through several security gates.
The nurse sought medical attention from the PA Hospital for significant bruising of the tissue surrounding her left eye. She also complained of headaches, upper neck pain and jaw pain as a result of the assault.
Report of Dr Mann dated 25 May 2009
Dr Mann prepared a further report pursuant to s 238 of the Act in relation to the offence on 13 January 2009. In that report, Dr Mann stated his views that the defendant suffers from a Borderline Personality Disorder which is characterised by transient stress related symptoms, impulsivity, labile affect, unstable interpersonal relationships and dissociative symptoms. He concluded:
“I do not believe that her current clinical picture or the history available to me is convincing of a diagnosis of Schizophrenia (DSM-IV-TR 295). I found her description of hearing voices and distressing beliefs, to be more suggestive of the dissociative symptoms associated with Borderline Personality Disorder. She lacks any convincing symptoms of disorganised speech or behaviour or any negative symptoms.”
Dr Mann does not consider there is any doubt that the defendant committed the offence and does not consider there is a dispute of facts pursuant to s 269 of the Act. In relation to the question, therefore, of unsoundness of mind he considers that as the defendant was suffering from Borderline Personality Disorder, which is a diagnosable psychiatric condition, he does not consider that this constitutes a mental illness, as understood in the Code, and he does not consider that the defendant “was completely deprived of any of the relevant capacities (ie. to understand that she ought not commit the act, to control her actions or to know what she was doing)”.
In relation to the offences of January 2009, Dr Lawrence acknowledged that the evidence was less clear and she noted that Dr Mann did not believe that it was driven by psychosis. However, based on the evidence of the defendant of hallucinations as well as her strange and bizarre behaviour, Dr Lawrence ultimately supported a finding of unsoundness of mind for that incident.
Dr McVie accepted Dr Beech’s oral evidence, that at the time of the January 2009 offence the defendant was deprived of the capacity to know she ought not do the acts. Dr McVie also noted that although Dr Mann’s opinion was that the defendant was not deprived of capacity, he gave evidence of increasing symptoms of auditory hallucinations in the days before the offence occurred.
Ultimately, having considered the views of Dr Beech and the views of the assisting psychiatrists, I am satisfied on the balance of probabilities that the defendant was deprived of the capacity to know she ought not do the act at the time she assaulted the nurse on 13 January 2009. This is based on her persistent psychosis which included auditory hallucinations and the persistent theme in her delusional beliefs that her son was being harmed or was in danger of abuse, which included the involvement of government agencies. It is clear from Dr Mann’s s 238 report dated 25 May 2009, that she was reporting auditory hallucinations concerning her son on the day before the assault. He stated that:
“I assessed [the defendant] on 12/1/09 the day before the assault. At this time she complained of hearing her son’s voice ‘all the time’ and that she felt increasingly distressed by them. She expressed concern that she would be killed during the Mental Health Court Hearing.”
Dr Mann in his report also recorded that:
“Dr Scott recorded that [the defendant] described hearing the voice of her son constantly inside her head saying ‘mummy save me.’ She told Dr Scott that she interpreted that to mean that her son was being abused, but that she could not identify who by. She later elaborated that she thought [the nurse] was involved, but acknowledged that she had no evidence that the staff member had any contact with her son.”
I consider, therefore, that a finding of unsoundness of mind should be made in relation to the offence on 13 January 2009. I find, therefore, that at the time of the alleged offence the defendant was of unsound mind, as described in Schedule 2 of the Act.
As to whether a forensic order is required, I note the seriousness of the offences as well the opinions of the assisting psychiatrists and the submissions of the parties. The assisting psychiatrists recommended a forensic order. Dr Lawrence indicated she would support a forensic order to High Secure without any limited community treatment. Dr McVie also recommended the opinion of Dr Heffernan in terms of management as he is the defendant’s current treating psychiatrist. Dr McVie noted that Dr Heffernan indicated that the defendant needed to be transferred to High Secure for long term care some weeks ago and opined that the defendant’s treatment needs were not adequately met in prison.
Having regard to the seriousness of the offences, the defendant’s treatment needs and the protection of the community, I order that she be detained as a forensic patient in The Park- High Security Program Authorised Mental Health Service.
I do not consider that Limited Community Treatment should be approved at this stage.
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