Re JG
[2004] QMHC 25
•29 October 2004
MENTAL HEALTH COURT
CITATION: | Re JG [2004] QMHC 025 |
PARTIES: | REFERENCE BY THE DEFENDANT’S LEGAL REPRESENTATIVE IN RESPECT OF JG |
PROCEEDING NO: | 0177 of 2003 |
DELIVERED ON: | 29 October 2004 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 24 September 2004 |
JUDGE: | Wilson J |
ASSISTING PSYCHIATRISTS: | Dr JM Lawrence |
FINDINGS: | Finding that the defendant was of unsound mind at the time of the alleged offence;1) Order that the defendant be detained in The Park High Security Program Authorised Mental Health Service for involuntary treatment and care.2) |
CATCHWORDS: | MENTAL HEALTH – DECLARATION OR FINDING OF MENTAL ILLNESS OR INCAPACITY – where the defendant is charged with the murder of her 7 year old son – where the defendant has a personality disorder with borderline and narcissistic traits – where the defendant was suffering from chronic depression and, in the opinion of 2 of the 3 reporting psychiatrists, an episode of major depression – where the defendant attempted suicide at the time of the murder – whether the defendant was deprived of the capacity to know she ought not do the act Criminal Code 1899 s 27, s 304A R v Porter (1933) 55 CLR 182 at 189-190, cited |
COUNSEL: | D Shepherd for the defendant |
SOLICITORS: | Legal Aid Queensland for the defendant |
WILSON J: JG was charged with the murder of her 7 year old son “C” on 12 October 2002. Her mental condition in relation to the charge was referred to this Court by her legal representative.
On 24 September 2004 I found that the defendant was of unsound mind at the time of the alleged offence. I ordered that she be detained as a forensic order in The Park High Security Program Authorised Mental Health Service for involuntary treatment and care. What follows are reasons for that decision.
The defendant was born on 18 June 1963. She has a personality disorder with borderline and narcissistic traits. She has a fairly extensive psychiatric history including several periods of hospitalisation for recurrent episodes of depressive disorder. She suffered post natal depression after C’s birth; at that time she thought about having C adopted out and he was placed in emergency foster care for a time. She took overdoses on at least 4 or 5 occasions. Upon being charged with C’s murder, the defendant was remanded in custody, and on one occasion she had to be admitted to the psychiatric unit at the John Oxley Memorial Hospital for treatment of a major depressive disorder. There was an episode of documented psychosis during her period in that hospital.
The defendant’s mother had a mental illness for which she was hospitalised in the Baillie Henderson Hospital and the Townsville General Hospital psychiatric unit. She attempted to kill the defendant when she was a young child.
As a child the defendant was fostered out. She alleges that her foster parents were violent and neglectful towards her.
The defendant was in a relationship with C’s father on and off for 7 years. It was an extremely violent relationship and domestic violence orders were made. At the time of C’s death she had not had contact with him for some time, but she was fearful of his return.
The relationship between the defendant and C was very enmeshed. She confused what she felt with what he felt, and her past experiences with what his would be in the future.
In the months leading up to C’s death the defendant was living with him in a Housing Commission duplex in a country town. The accommodation was small and cramped. She was disturbed by noises made by neighbours as well as by noise and dust from a building site. She was in receipt of social benefits.
There were recurrent problems with C’s behaviour and his performance and treatment at school. The defendant believed he was victimised. She believed that the problems were not being addressed adequately by the school or the child mental health unit which she consulted. In September 2002 she consulted a paediatrician. The defendant had her own health problems - asthma, pains in her knees, neck and shoulder, a recurrent ear infection, and a chronic sleep disturbance. Her general practitioner queried whether she was depressed, but she said it was not a problem. The defendant was worried C would be taken into care by the Department of Families. As I have said, she was concerned with the possible re-emergence of his father.
Dr Varghese recorded in his report of 11 June 2003 –
“I asked JG to describe what had been going on in the days immediately prior to the killing of the child. She states she went to ARC ‘a few days before for help’ and ‘they were trying to get me a Counsellor’.
She also states that ‘strange things were going on with me’. Asked to elaborate, she says ‘I thought the light bulb outside was a camera’ and also she thought there was a ‘microphone outside the house’. She had these thoughts a week prior to the killing. As to what may have led her to have these thoughts, she says ‘I don’t know why’.
She felt people were watching her but she was not sure why they should be doing this. ‘I felt I was being watched.’ ‘I don’t know who.’ She adds that she was scared her ex-fiancee would ‘turn up’. She recalls an incident where a car pulled up and a man and woman were taking photographs of her. She thought that ‘(her) ex was spying on (her)’. ‘He was intending to hurt us (both of us).’ ‘He would be doing this to avoid maintenance.’
She also states that she believes people were against her. At [sic] to who these were, she says ‘everybody’ including her family. ‘They hate me.’ Moreover she says she felt like a radio was ‘playing in her head’. When asked to elaborate on what she meant by this, she was unable to elaborate. She describes it as ‘like garbled voices’. The voices were not distinct enough to pick what was being said.
As to why she would think people were against her, she says it was ‘because of what was happening at the school’ and ‘everything that was happening to C’. She states the Principal hated both her and her child. ‘They told me to just throw him (C) inside the school if he did not want to go.’
JG also states she ‘heard people saying bad things (about her)’. ‘If we were having a good time she (the lady next door) would say people up the road will think you are on drugs.’”
At the time of the alleged offence the defendant was suffering from chronic depression and, in the opinion of 2 of the 3 reporting psychiatrists, an episode of major depression. This was in the context of her vulnerable personality.
On the day of the homicide the defendant found C in the laundry with a plastic bag over his head. She said later that he said that he hated his life, that he wished he had never been born, and that he wanted to die. She tried to talk to him, telling him that she knew how he felt as she felt that way herself at times. She took the plastic bag from him. She found some temazepam (sedative) tablets in the bathroom cabinet and gave them to C to take saying that they would both take the tablets and “go and be together”. Both of them consumed tablets. She then put C to bed and smothered him. It was still daylight. At about 2.00 am she called the ambulance and said that she had killed her son and tried to kill herself. Police attended and found C’s body. They also found a note dated 12 October. 2002. She said –
“People keep on pushing us to what we are not, people hate us. …We have not been living – this has been like a concentration camp.”
She went on to apologise for hurting anyone. She said she believed she was dying. Some of the note is indecipherable.
“I love C and did this to protect him from foster carers and the Department of Families who made me this way from when I was a baby…He is innocent, I am not… No one would help us when I asked for help, I know I am dying – it is slow and painful and all my body hurts and I can’t breathe…If I die I am hoping (indecipherable)…I want whoever finds me to phone Catherine Baulch and (indecipherable) to have the care of C…this is the first time I have purposely hurt C – ever.”
She went on to refer to C telling her that he wished he was dead and that he had never been born.
“We have both been depressed and stuffed.”
The defendant was taken to the nearby hospital. She told the doctor she had taken at least 30 sleeping tablets, that she had cut her left wrist and attempted to inject air into the veins of her left arm. Tests performed after C’s death showed that the level of temazepam in his system was at the upper level of the therapeutic range.
Unsoundness of mind, diminished responsibility
This Court’s task is to determine whether the defendant was of unsound mind at the time of the alleged offence, and if she was not, whether she was suffering from diminished responsibility. “Unsound mind” is defined in schedule 2 to the Mental Health Act 2000 in the following way –
“‘unsound mind’ means 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 alleged offence.”
Section 27 of the Criminal Code provides –
“27 Insanity
(1) A person is not criminally responsible for an act or omission if at the time of doing the act or making the omission the person is in such a state of mental disease or natural mental infirmity as to deprive the person of capacity to understand what the person is doing, or of capacity to control the person's actions, or of capacity to know that the person ought not to do the act or make the omission.
(2) A person whose mind, at the time of the person's doing or omitting to do an act, is affected by delusions on some specific matter or matters, but who is not otherwise entitled to the benefit of subsection (1), is criminally responsible for the act or omission to the same extent as if the real state of things had been such as the person was induced by the delusions to believe to exist.”
“Diminished responsibility” is defined in schedule 2 to the Mental Health Act as –
“the state of abnormality of mind described in the Criminal Code, section 304A”.
Section 304A of the Criminal Code provides –
“304A Diminished responsibility
(1) When a person who unlawfully kills another under circumstances which, but for the provisions of this section, would constitute murder, is at the time of doing the act or making the omission which causes death in such a state of abnormality of mind (whether arising from a condition of arrested or retarded development of mind or inherent causes or induced by disease or injury) as substantially to impair the person's capacity to understand what the person is doing, or the person's capacity to control the person's actions, or the person's capacity to know that the person ought not to do the act or make the omission, the person is guilty of manslaughter only.
(2) On a charge of murder, it shall be for the defence to prove that the person charged is by virtue of this section liable to be convicted of manslaughter only.
(3) When 2 or more persons unlawfully kill another, the fact that 1 of such persons is by virtue of this section guilty of manslaughter only shall not affect the question whether the unlawful killing amounted to murder in the case of any other such person or persons.”
Thus the deprivation of one of the cognitive capacities (the capacity to understand what one is doing and the capacity to know that what one is doing is wrong) or of the volitional capacity (the capacity to control one’s actions) caused by a disease of the mind is the touchstone of unsoundness of mind. And the substantial impairment of one of those capacities caused by abnormality of mind is the touchstone of diminished responsibility.
The evidence
The consensus of opinion was that the defendant was very disturbed when she killed C. The three reporting psychiatrists (Dr Frank Varghese, Dr Josie Sundin and Dr Jill Reddan) all considered that she was pervasively depressed and that the depression in combination with her personality disorder at least substantially impaired her capacity to know she ought not do the act - that is, to reason with a modicum of composure as to its moral rightness or wrongness. R v Porter (1933) 55 CLR 182 at 189-190; Stapleton v R (1952) 86 CLR 358 at 367; Re L (Mental Health Tribunal, 13 March 2001, Chesterman J) at paras [30]–[33]. Dr Sundin went further, opining that she was deprived of that capacity. It is necessary to consider their evidence in some detail.
Dr Varghese thought the defendant was suffering from cognitive distortions as a feature of her depression. He did not think that she was psychotic at the time: while he acknowledged that her belief that day that C wanted to kill himself and that he had taken steps to do so could be a specific delusional belief, he saw it more as a cognitive distortion. Major depression of more than moderate intensity produces more cognitive distortions in someone with a borderline personality than it does in someone with a normal personality. The central issue was whether those cognitive distortions were of such intensity that she had no choice but to do what she did. He considered she had the choice to seek help. The suicide note itself was ambivalent, containing some elements of reality: there was a real possibility that the child would be taken away. Dr Varghese's view that there was not a total deficit of the capacity to know she ought not do the act was clearly influenced by the extreme nature of a mother's conduct in killing her 7 year old child: he was fixed in his opinion that she must have had some appreciation that what she was doing was wrong. However, at the very end of his evidence he conceded that he would expect someone in a state of depression faced with a child who was depressed to seek help, unless the depression was of such intensity that the concept of help was irrelevant or she believed no one would help her anyway because everybody hated her - and that that was what the defendant had consistently reported.
In Dr Sundin's opinion it was more probable than not that at the time of C's death the defendant was suffering a major depressive episode with mood incongruent psychotic features present. This was in the context of a dysthymic disorder and a personality with mixed borderline and narcissistic traits. The defendant gave Dr Sundin an account of how she was feeling in the days leading up to the fateful day in terms very similar to the one she gave Dr Varghese. In coming to the view that these beliefs were psychotic delusions rather than over valued ideas, Dr Sundin was impressed by the unshakeability with which the defendant held them. The delusions were influenced by the defendant's depression, but more characteristically a product of her severe personality disorder and therefore more fragmentary in nature. However, the defendant did not report any delusions on the day she killed C. The suicide note was reflective of the defendant's deeply ambivalent state; she was not in any state of composure and was not thinking things through clearly at all. Her pervasive depression, in the presence of her very vulnerable personality structure, distorted her cognitions to the point of depriving her of the capacity to know she ought not do the act.
Dr Reddan agreed that the defendant suffered from a dysthymic disorder which caused her to be chronically depressed and a personality disorder. While the difference between a dysthymic disorder and a major depressive disorder is a fairly fine one, she found no evidence of a morbid shift at the time of the alleged murder. The defendant's mood was pervasively abnormal as the result of her dysthymic disorder and her personality disturbance. She had a very limited range of responses, her thinking and perception of communications from others and of situations being always disordered. The defendant's mind was very disturbed, but it was not psychotic. In Dr Reddan's opinion the defendant's capacity to know she ought not do the act was substantially impaired, but not totally absent. The depression was insufficiently intense and her actions and statements at the time were inconsistent with a deprivation of capacity. Like Dr Varghese, Dr Reddan thought that the defendant may have distorted what C said about wanting to die, but that she was not delusional. She was heading towards a crisis: something more definitive was going to have to be done about C and she feared that he would be put into foster care. But, in Dr Reddan's assessment, her suicide attempt was half-hearted, and what she said to the ambulance officers was consistent with some appreciation that it was wrong to kill C. It should be observed that the defendant's conversation with the ambulance officers was some hours after C's death, and after the defendant awoke from a sedative induced sleep of several hours' duration. In these circumstances I do not accept that it was necessarily reflective of her mental state at the time she killed the child.
The weight of the evidence supported a finding that at the relevant time the defendant was suffering from an episode of major depression. Whether she was deprived of the capacity to know she ought not do the act turned on an assessment of the intensity of the depression. That is a continuum and the question was where, on the balance of probabilities, she lay on that continuum. I accepted the evidence of Dr Sundin that the depression was of such intensity as to deprive her of that capacity. The concession ultimately made by Dr Varghese was, I think, consistent with such a finding.
Accordingly, I found that the defendant was of unsound mind at the time of the alleged offence.
A forensic order was clearly called for, and I ordered that she be detained in The Park High Security Program Authorised Mental Health Service for involuntary treatment and care. There was no suggestion of any limited community treatment at this stage.
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