Re JGB
[2004] QMHC 29
•23 September 2004
MENTAL HEALTH COURT
CITATION:
Re JGB [2004] QMHC 029
PARTIES:
REFERENCE BY THE DEFENDANT’S LEGAL REPRESENTATIVE IN RESPECT OF JGB
PROCEEDING NO:
0018/03
DELIVERED ON:
23 September 2004
DELIVERED AT:
Brisbane
HEARING DATES:
18 March, 19, 20, 21, 22 April, 26 May 2004
JUDGE:
Wilson J
ASSISTING PSYCHIATRISTS:
Dr J M Lawrence
Dr J F WoodFINDINGS AND ORDERS
1) Finding that the defendant was not suffering from unsoundness of mind as described in schedule 2 of the Mental Health Act 2000 at the time of any of the alleged offences;
2) Finding that the defendant was not of diminished responsibility as described in schedule 2 of the Mental Health Act 2000 at the time of either of the alleged murders;
3) Finding that the defendant is unfit for trial and that the unfitness is not of a permanent nature;
4) Order that the defendant be detained as a forensic patient in The Park – High Security Program Authorised Mental Health Service for involuntary treatment and care.
CATCHWORDS:
MENTAL HEALTH – DECLARATION OR FINDING OF MENTAL ILLNESS OR INCAPACITY – Unsoundness of mind – diminished responsibility – where defendant charged with two counts of rape and two counts of murder on a particular date – where defendant asserts amnesia – whether defendant suffering from psychotic illness – defendant sexually abused as child – perpetrator of abuse imprisoned many years later – defendant’s disturbed behaviour before the offences allegedly committed by him – defendant hearing and smelling demons – whether true auditory hallucinations or pseudo hallucinations – absence of formal thought disorder – whether defendant was voluntarily intoxicated by alcohol or drugs at the time of the alleged offences – absence of evidence of deprivation or substantial impairment of any of the capacities in s 27 of the Criminal Code
MENTAL HEALTH – DECLARATION OR FINDING OF MENTAL ILLNESS OR INCAPACITY – Fitness for Trial - where defendant charged with two counts of rape and two counts of murder on a particular date – where observations of doctors assessing fitness for trial similar but conclusions as to fitness criteria different – whether defendant suffers schizophrenia – pseudo hallucinations and true auditory hallucinations – whether defendant malingering or underlying mental state and/or presentation fluctuating –Court not satisfied on the balance of probabilities that defendant fit for trial – unfitness not permanent – forensic order
Mental Health Act 2000 schedule 2
Criminal Code ss 27, 304A
Kesavarajah v R (1994) 181 CLR 230 applied
R v M [2002] QCA 464 followed
R v Presser [1958] VR 45 applied
R v Pritchard (1836) 7 Car & P 303; 173 ER 135 referred to
COUNSEL:
P Richards for the defendant
J Tate for the Director of Mental Health
P Rutledge for the Director of Public ProsecutionsSOLICITORS:
Queensland Aboriginal and Islander Legal Service Secretariat for the defendant
The Crown Solicitor for the Director of Mental Health
The Director of Public Prosecutions
WILSON J: JGB has been charged with two counts of murder and two counts of rape, allegedly committed on 15 October 2001. His mental condition in relation to the alleged offences was referred to this Court by his legal representative on 24 January 2003.
The victims
The victims of the alleged offences were two children – a 9 year old girl Kimberley Griffin and her 13 year old brother Russell Griffin. Their bodies were found amongst rocks at the foot of a cliff in the Mt Archer National Park. The boy's semi-clad body was curled up, and the girl's naked body was prone. Green nylon rope was tied tightly around the boy's neck in a hangman's noose. A post mortem examination revealed that he had died of asphyxia; he had also suffered severe skull fractures, brain damage, and other fractures; his blood alcohol level was 63mg/100ml. The girl had been raped vaginally and anally. A post mortem examination revealed a partial ligature mark around her neck, extensive external injuries, and fractures of the occipital bone and the base of the skull; her blood alcohol level was zero.
The defendant's antecedents
The defendant is an indigenous man who was born on 11 August 1968. He had a traumatic and brutal childhood. His parents separated when he was in grade 2 at school and thereafter he had no contact with his mother until he was in grade 10. He grew up in Cherbourg with his paternal grandparents, and was one of a large number of children who lived in the house. Between 1972 and 1974 he was repeatedly sexually abused by an uncle RB. So, too, were his sister Cynthia and his cousin Steven. It was not until 1999 that police interviewed the defendant about the abuse. His uncle was arrested about a week later (in November 1999), and on 30 May 2001 the uncle was convicted of 20 counts of sexual offences against the children (two of the counts involving the defendant) and given a head sentence of 10 years' imprisonment with a recommendation for parole after 4 years.
The defendant has led a troubled life. He attended school to grade 12, but was not a particularly good student. He had various unskilled jobs and periods of unemployment. He married and had two children, but the marriage failed. Subsequently he formed a de facto relationship with a first cousin Sharon Dell Shepherd, and had three more children. In December 2000 he commenced work as a supervisor at an emu farm, but left after 8 or 9 months to move to Rockhampton because his partner wanted to be closer to her family. He was unemployed at the time of the alleged offences. He has a criminal history from 1986 (when he was 18) including multiple convictions for offences such as assaulting police, assault occasioning bodily harm, possession of cannabis, and disorderly conduct. In 1994 he underwent a laminectomy as the result of a spinal injury apparently sustained in an assault in jail the previous year. He has a history of alcohol and cannabis abuse.
The defendant was especially disturbed from about 1999. He had sudden and extreme mood swings, becoming aggressive and violent towards others. He ruminated on his sexual abuse as a child, and behaved in a bizarre manner. He spoke of demons. His mother described an incident at his grandmother's in which he sprinkled water over the doors and windows "to keep the evil out", and another in which he went into the middle of the street and drew a circle and sprinkled salt to fight evil. According to his mother and his sister, his behaviour was much the same whether or not he had been drinking. In December that year he presented himself to the Rockhampton Mental Health Service seeking help. He was angry about the sexual abuse perpetrated by his uncle and expressing homicidal ideation towards his uncle. He was seen by the ATSI team and a registrar who found no evidence of psychosis or depression. The next morning he discharged himself before being reviewed by a psychiatrist.
According to the defendant's mother and sister his behaviour worsened in the months leading up to October 2001. This was especially so in the last 3 months, after his daughter was allegedly sexually abused by another uncle FB. His sister (who lived in Cherbourg) recalled an occasion when he telephoned her and asked her to come to Rockhampton and pick him up or he would do something really bad. She picked him up. She did not think he was intoxicated. She refused his request to buy him beer and drugs. He yelled at her in the car and swung his tomahawk around her ear saying, "This f..ingwell thing is telling me to kill you..." She said, "I rebuke you in the name of Jesus." This was repeated several times. Finally she let him out of the car on the Rockhampton side of Gin Gin. When she reached their mother's place at Biggenden, the defendant telephoned about his keycard. In September 2001 the defendant was taken by police to the emergency department of the Rockhampton Hospital and admitted to the psychiatric unit. He was physically and verbally abusive to staff, and presented with poor sleep, depression, and suicidal and homicidal ideation. There was no evidence of thought disorder and no evidence he was deluded or hallucinating. According to Dr Zimmerman, a psychiatrist at the hospital, he showed no signs or symptoms of mental illness. He was kept in hospital overnight. On his discharge, the diagnosis was "situational crisis and alcohol and THC intoxication". Later that month he was admitted to the Rockhampton Hospital with back pain. He was noted to be aggressive towards staff.
5-10 October 2001
On about Friday 5 October 2001 the defendant was arrested for stealing a T shirt and kept in the Rockhampton watchhouse over the weekend. His behaviour in custody was abusive, threatening and destructive. He made two attempts at suicide - one by tearing up a towel and making a noose, and the other by removing a wire from his back brace. On each occasion police intervened before he harmed himself. His bizarre behaviour included refusing to wear clothes and writing on the wall with faeces. He was granted bail on the Monday on condition that he remain in Rockhampton. According to his partner Ms Shepherd when he arrived home she told him she thought there had been a prowler, upon which he said he would sleep in the shed with a machete. When she said she thought the prowler had been wearing a white shirt, he replied, "It must be the white shirts, the coppers and they're out to kill me." He then rang his mother and asked if they could stay on her farm and borrow one of her guns to protect them from police. After a shower he seemed to settle down, and he asked Ms Shepherd to rub some aromatherapy oils over his body "to cleanse it from the demons". He also said that he had met an Aboriginal man who had told him the demons were still after him.
On 9 October 2001 the defendant was detained at Murgon under the Mental Health Act 1974. His father called the police after the defendant tried to attack him. He was taken to the Murgon watchhouse. His sister visited him there. He was yelling and screaming, and, in her words, "behaving like an animal". He threw things around the cell, put his head in the toilet washing his face with the toilet water, wet the toilet paper and put it over the security camera. He told her to leave, that he was going to die. "Only my body will be here - my spirit will be gone. My spirit will roam and wander and I'll be free." A local medical practitioner assessed him as a danger to himself and others and ordered his transfer to the Acute Psychiatric Unit at Toowoomba Hospital.
At 6.35 pm on 10 October 2001 the defendant was admitted to the Acute Psychiatric Unit at Toowoomba Hospital. He was limping and holding his left leg. He had multiple scratches to his legs and forearms which he claimed to have sustained after going through a barbed wire fence. He said he was trying to get to his father's house at Murgon at the time. He claimed that "no-one in his family loved him" and said he was making his way from Rockhampton to Murgon to kill his father. He admitted using cannabis, saying that he preferred to use "mother earth's healer" instead of anti-inflammatory and analgesics for his back pain. He admitted using cannabis every day for the last 10 years. The defendant was examined by a house doctor, Dr Nagappan. He believed he was going to be an angel of justice, "death to crucify all demons and humans". He described black demons in the interview room, and said the demons were trying to harm him. He was reported to be spitting on the demons. He said he heard the voices of the demons telling him to kill himself. He said he wanted to kill himself after killing his father. He denied disturbances in mood but his sleep was poor and his appetite diminished. He denied previous admissions to hospital or the use of psychotropic medication but gave a history of self harm (cutting his wrists). His speech was spontaneous and coherent and his mood was euthymic. He described persecutory delusions (that people were talking about him). He said he experienced hallucinations – multiple voices in the second person giving him commands. His cognition was intact. He had no insight. The admitting doctor made a provisional diagnosis of schizophreniform psychosis and raised also the possibility of schizophrenia and an antisocial personality disorder. The defendant was admitted as an involuntary patient for further assessment and investigation. He was placed on half hourly observations and commenced on antipsychotic medication. The next morning the defendant's mother rang the hospital and supplied some information about his history; she also warned of the risk of his absconding. The last half-hourly observations were made at 8.30 am. By 9.00 am the defendant had absconded.
14 October 2001
The defendant made his way back to Rockhampton.
On 14 October 2001 the children and their mother Ms Griffin met the defendant at her friend Kathy's place. Before they arrived, the defendant presented Kathy’s daughter with a bottle of “spiritual oil”. He offered to take Kathy and her daughter, or just the daughter, to the beach to carve a didgeridoo from a special tree, but Kathy declined the offer. Then he made a sexual pass at Kathy. Kathy had previously told Ms Griffin about "Mully Joe" who made didgeridoos. When Ms Griffin and the children arrived, he introduced himself to her by that name, and he talked to the children about didgeridoos. They were all there most of the day. The defendant played a game of chess with Russell, and they talked about going out to collect wood to make a didgeridoo. It was raining, and so they decided to go out the next day. After Ms Griffin and the children had gone home, the defendant and his partner called on them at about 7.45 pm, and arrangements were made for the defendant to pick up Russell the next morning.
15 October 2001
When the defendant woke up the next morning, he went out and prayed for help. His partner told him he needed help; they were going to see a counsellor at the Aboriginal Medical Centre. He picked up the phone and apparently rang the police saying he would hand himself in. His partner went into the bathroom, and when she emerged, he was running down the street.
Meanwhile Ms Griffin and Russell walked to Kathy's house. Kathy left about 10.30 am and the defendant arrived about half an hour later. He started talking to Russell about didgeridoos. He and Russell then set off for a spot at the base of Mt Archer to collect wood. About 1.00 pm the defendant rang Kathy's place, and Ms Griffin answered the phone. He asked Ms Griffin what time she would be home, to which she replied after Kimberley came down to Kathy's place from school. The defendant told her Russell had rung the school and left a message for Kimberley to catch the bus after school and go home. The defendant and Ms Griffin agreed to meet at her house when Kathy got back. At 3.15 pm the defendant rang Ms Griffin again at Kathy’s place; he was apparently calling from Ms Griffin’s house; he said Kimberley had not come home yet. Five minutes later the school called to see if Kimberley had turned up. At 3.30 pm the defendant called Ms Griffin again: he put Kimberley on the phone and she told her mother that she had not received the message to go straight home, that she had not gone to Kathy’s place because she had thought her mother would not be there, and that she was going to find wood for the didgeridoo. The defendant told Ms Griffin he would return the children before dark.
By 7.00 pm the children had not returned, and Ms Griffin went looking for them. Police were alerted. They went first to Kathy's house and then returned with Ms Griffin to her house. The toilet light was on: it had not been earlier. No-one was home. Russell's boots and a cap (that he had been wearing at Kathy's) were on the kitchen table. The defendant's partner arrived. After the police left, the defendant rode up the street on a bicycle with a carton of beer under his arm. Ms Griffin demanded to know where the children were. He replied: "Sister, I wouldn't hurt your kids. I love them like my own kids. I wouldn't hurt your kids......I'll find your kids. I'll ride all night if I have to. I'll have them back before dawn." He said something about seeing a police car while they were walking along and telling the children to run. He said he had told them to double back and meet him at the camp after dark. He said they had asked him how they could get through a fence and he had kicked out a couple of palings and they had climbed through. Being told that police were coming, he put his bicycle in the back of his partner's car, and they both left. She took him to his uncle's place.
During the course of the afternoon the defendant was observed by a number of independent witnesses. For example, at about 2.00pm he called at the house of strangers to ask if they had seen a blonde-haired girl who had been "missing since about 12". He returned to the house accompanied by a boy who met Russell's description and talked about his sisters having been raped by his uncle, and being from a radio station and "trying to work against attacks on people." The householder said he "absolutely reeked of alcohol". About 5.30 pm the children were seen by neighbours with a dark man in the street. They noticed Russell drinking from a wine cask's bladder. He looked drunk, and was staggering about and falling. In the early evening a man meeting the defendant's description accosted 2 teenage girls in the street. He insisted that he believed the younger girl was "in trouble" and that he could help by referring her to someone he knew. They said he smelt of methylated spirits. Later that evening he accosted another acquaintance and told her he was looking for "a little black-haired girl", to tell her that he had found the missing girl. He rambled on about his sexually abusive uncle and his own role in helping people.
16 October 2004
At about 5.30 or 6.00 am the next morning the defendant rang his partner and said he was on his way to Murgon.
She went out and picked him up, and brought him home to Rockhampton. During the morning a police officer rang and asked her to make a statement about the defendant's mental state. When she told the defendant this, he said, "I was going to hand him into the demons again." He was angry and said, "Look what they did to me a few weeks ago in the watchhouse. We will have to go to Murgon Police, they know me and they know I would not hurt kids." At about 10 am they called on a friend James Doyle: the defendant told him he was going to Western Australia and gave him a "healing bottle" labelled sandalwood. They set out for Murgon. At Monto they stopped at a service station to change a tyre. At some point the defendant telephoned his mother. When she asked him where he was, he flew into a rage and would not tell her. At the service station he used a public phone and was overheard saying, "Somebody was raped. I need my solicitor. My mother's not taking my calls. ... I need to get out of the State ...". The children's bodies were discovered at about 11.30 am that day. A short time later the defendant’s partner spoke to her sister on a mobile phone the defendant had stolen from the service station; her sister told her that the children were dead. According to his partner, the defendant "didn't really react over this." Later that evening they were stopped by police near Murgon, and the defendant was apprehended.
Intoxication?
There is considerable collateral evidence that the defendant had consumed alcohol before the alleged offences, but no definitive evidence as to how much he had consumed or when. There is no mention of the indicia of alcohol consumption or intoxication in the evidence of the children's mother Ms Griffin about his turning up at her house after the police had been called, although she does refer to his having a carton of beer under his arm. No blood sample was taken for drug or alcohol analysis. A urine sample was taken at 10.30 pm on 17 October 2001: it revealed the presence of anti-inflammatory and pain killing drugs and cannabinoids. It seems clear that the defendant had a cannabis habit, but because of the long half life of cannabinoids it is not possible to draw any conclusion as to how much cannabis he had consumed or when. The evidence before this Court falls short of establishing on the balance of probabilities that the defendant was voluntarily intoxicated with alcohol or drugs at the time of the alleged offences. That said, the lay witnesses did not give oral evidence, and it may well be that their oral testimony would have gone sufficiently further than their statements to allow such a finding to be made. However, my findings on this reference do not turn on whether or not the defendant was intoxicated.
Police Interview
Police recorded their initial conversation with the defendant on 16 October 2001, as well as their interviews conducted at the Murgon watchhouse on 16 – 17 October 2001. He admitted breaching bail and stealing the mobile phone. He asked police if either of the children had been found, and told them that he had looked around the neighbourhood with Russell for Kimberley. He rambled about Aboriginal cultural and spiritual issues, about saving people from sexual abuse, about his own complaints being ignored and about injustice. However, he was not completely incoherent or disoriented in time or place. He did not tell police he was hallucinating or reveal delusional thinking. On clinical analysis, the interview did not contain evidence of formal thought disorder.
John Oxley Memorial Hospital 17 – 19 October 2001
On 17 October 2001 the defendant was transferred from the Murgon watchhouse to the John Oxley Memorial Hospital where he remained for two days. He was examined by Dr William Kingswell, psychiatrist, and Dr Schramm, a registrar. The defendant denied emphatically that he had murdered the children. He told a story of going to Rockhampton and staying with Kathy whom he had met in a pub and who was a friend of the children's mother Ms Griffin. He said he had been given amphetamine by Ms Griffin: he had never used it before, and although he was told he was "acting weird", he felt "OK". He was preoccupied with his own sexual abuse and that of other members of his family. His mood was angry, and he talked of killing his father and uncles, "Aboriginal justice" and shabby treatment by "white man's justice". He described hearing voices telling him to kill his father and uncles. He said he could converse with the voices. That distinguished the voices from true hallucinations experienced by persons suffering from schizophrenia. He displayed no evidence of thought disorder, passivity phenomena or thought interference. He was assessed as not suffering a mental illness, and returned to custody.
Psychiatric reviews in prison 29 October, 31 December 2001
On 29 October 2001 the defendant was reviewed by Dr Pam van de Hoef, the visiting psychiatrist to the Arthur Gorrie Correctional Centre. She described him as displaying murderous rage against his uncle FB and as displaying anger about injustices done to him as a child, to his race and to his siblings. He was noted to pray and read the Bible, but did not display evidence of delusions, hallucinations or formal thought disorder. Dr van de Hoef commented that it was remarkable that his emphasis was not on the charges of murdering 2 children but on past injustices and his physical ailments. She found no evidence of major mental illness and no indicator for medication. She reviewed him on 6 November 2001 when he was noted to be sad and anxious, but again displayed no evidence of major depression or psychosis.
On 31 December 2001 the defendant was reviewed by Dr Jon-Paul Khoo, another psychiatrist. He reported being “taunted” by a demon. He reported auditory perceptions, both male and female (but mostly male). He said the demon was telling him he had to die, and that if he did not kill himself, it would kill him. He said the demon could overpower him as it had done before. He reported seeing the demon like a shadow; it had red eyes. He said the demon inserted thoughts into his mind and controlled his mind. He was depressed, with restricted affect, and weeping intermittently. He was assessed as suffering a psychotic depression and transferred to the John Oxley Memorial Hospital.
John Oxley Memorial Hospital 31 December 2001 – 25 February 2002
The defendant was in the John Oxley Memorial Hospital from 31 December 2001 until 25 February 2002.
Dr Kingswell and Dr Khoo examined him again on 2 January 2002. The defendant was very disturbed. He told them that he had started hearing voices about 10 days before when he had filled in forms for criminal compensation arising out of his uncle Roderick's conviction. He said the past had come back. He had experienced flashbacks and voices telling him he had to kill himself; they were heavy, dark voices at the back of his head associated with seeing a demon like a shadow of a human. He alleged that his uncle Frank had sexually abused his daughter. He said he had dealt with the demon of Roderick by having him put away, but Roderick's demon had revisited him through Frank. He said he could smell the demon and that he could converse with it but not control it. He repeated his story of being given amphetamines on the day of the offence. He said he had nothing to do with the children's deaths. Dr Kingswell assessed him as not being psychotic, but having a depressed mood. The voices associated with smells and visions of demons were not the sort of hallucinations associated with schizophrenia, although they were consistent with those associated with post traumatic stress disorder. He did not have other features of schizophrenia such as fixed delusional concerns or formal thought disorder, but just abnormalities of behaviour more consistent with known disabilities of a severe personality disorder and post traumatic stress disorder.
Dr Ness McVie formally assessed the defendant on 15 January 2002, and became his treating psychiatrist. He gave her a detailed account of his movements on 15 October 2001, denying going into the bushland with the children and denying any involvement in their murders. He told Dr McVie that he had experienced voices in his head for many years and that they had been constant since August 2001; he said they would not leave him alone and told him to kill himself. He described one voice as an evil demon "who wants people to do evil things"; it tried to make him "his evil soldier", telling him to harm people, "but I didn't give in to him". He thought the demon who had possessed his uncle Roderick had come to take over him. He said he could sometimes see the demon as a dark transparent shadow with red eyes and shiny black pupils. The voice was from outside his head only when he could see the demon; otherwise it came from within his head. The demon knew what he was thinking and was always trying to overpower him. It smelt "like death". He said his family had told him he had done things such as fighting with them which he could not remember. He remembered his family taking him to a "clever Murri" who had "pulled the demon out"; after that he had not seen the demon for 12 months. He believed he had been sent to hospital because he told people at Arthur Gorrie that the demon had shown itself to him.
In a report written on 4 February 2002 Dr McVie described the defendant in these terms -
"[He] presented as perplexed and agitated. He was a vague historian. He did not appear to be responding to auditory hallucinations. He did not display any evidence of formal thought disorder. He described experiencing auditory hallucinations, persecutory ideation (by the demon and police) and suicidal ideation.
Due to the degree of his agitation and distress, he was commenced on the antipsychotic medication Risperidone. He was also continued on increased dose of his antidepressant medication Sertraline.
[JGB] has continued to be closely observed since his admission to hospital. Nursing staff report little evidence to suggest psychosis. His agitation has settled and at times he interacts appropriately with other staff and patients."
DNA Evidence
The defendant was returned to custody on 25 February 2002, and Dr McVie continued to review him in custody until 5 June 2002. About a month after his return to custody, results of certain DNA testing became available. A vaginal swab taken from Kimberley contained sperm showing a DNA profile matching that of the defendant. Dr McVie asked the defendant, "Do you know about the DNA evidence?" to which he replied, "Yes." She then said, "Well, what is it?" to which he replied, "It's positive." She said, "Well, what does that mean?" and he replied, "Well, I suppose I did it." The defendant seemed to become more depressed after that. He has not talked about anything to do with the offences since, claiming total amnesia.
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 offences, and if he was not, whether he 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.
Fitness for trial
If the Court determines that the defendant was not of unsound mind at the time of the alleged offences, it must then determine whether he is currently fit for trial. The expression "fit for trial" is defined in schedule 2 of the Mental Health Act as:
“... fit to plead at the person's trial and to instruct counsel and endure the person's trial, with serious adverse consequences to the person's mental condition unlikely.”
In R v M [2002] QCA 464 the Court of Appeal approved the application of the minimum standards expounded in R v Pritchard (1836) 7 Car & P 303 at 304; 173 ER 135 at 135; applied in R v Presser [1958] VR 45 at 48 and approved in Kesavarajah v R (1994) 181 CLR 230 at 243 in determining whether someone can be tried without unfairness or injustice to the question of unfitness for trial within the meaning of the Mental Health Act:
“...the ability (1) to understand the nature of the charge; (2) to plead to the charge and to exercise the right of challenge; (3) to understand the nature of the proceedings, namely, that it is an inquiry as to whether the accused committed the offence charged; (4) to follow the course of the proceedings; (5) to understand the substantial effect of any evidence that may be given in support of the prosecution; and (6) to make a defence or answer the charge.”
(See R v Presser [1958] VR 45 at 48)
Evidence of deprivation or impairment of capacities?
The defendant has been examined by various psychiatrists since the alleged offences, but none of them has been able to talk to him about his mental state at the relevant time. As Dr McVie observed, the most important assessment was that at the John Oxley Memorial Hospital on 17 October 2001, just 2 days after the alleged offences (which he vehemently denied). At that time he was considered not to be suffering any mental illness. There is nothing in the collateral evidence of people who talked with him and or saw him on the day of the offences or thereafter to suggest he was suffering from deprivation or impairment of any of the capacities. It would suggest he was not suffering from such a disturbed mental state.
Dr Ness McVie
According to Dr McVie the correct diagnosis has always been in doubt. In her opinion the majority of the behaviour observed when the defendant was in the John Oxley Memorial Hospital was the result of post traumatic stress in the context of having been charged with very serious offences. He was also suffering from an adjustment disorder with depressed mood and anxiety features. She had considered a diagnosis of schizophrenia but rejected it for several reasons. There was no evidence of formal thought disorder. He was not socially isolative. His description of demons was not consistent with the typical description of voices by someone with schizophrenia. She considered the demons were associated with the incident in that they were some reflection of guilt: in his mind demons had long been associated with sexual abuse, and it was as if there was some connection with the sexual abuse and what he was doing, and his guilt about what he was doing. If he had schizophrenia, she would have expected, in addition to a voice telling him to kill, a delusional belief which supported a reason why he should act on that voice, but she found no evidence of such a delusion.
Dr McVie observed that because the defendant has been in custody over the last 2 years the level of observations required to confirm a diagnosis has not been possible. She examined him again on 31 March and 7 April 2004 in order to assess his fitness for trial. She noted a significant improvement in his behaviour. He still spoke of hearing and smelling demons which spoke to him in a deep male voice. He said he also heard female voices which told him to watch out for the demons, and received messages from the television warning him about the demons. He claimed not to know the current date, his reason for being in custody, or the nature of the alleged offences. He was eventually able to be engaged in conversation about events leading up to the alleged offences and agreed he had been in the Rockhampton watchhouse. He talked animatedly about his daughter being sexually abused by his uncle Frank and his anger that police did not arrest Frank. He admitted involvement in the minor offences to bring attention to himself, but when the conversation turned to the offences of rape and murder, he paused and started talking about the demons. Dr Mc Vie said in a report dated 13 April 2004 –
“[JGB] presented at interview with flat affect, avoiding eye contact, and displaying no emotional response when informed of the nature of his serious outstanding alleged offences. He was guarded in his responses, but not suspicious, perplexed or distractible. He was calm, euthymic and appeared to think through questions before answering. He did not display any evidence of formal thought disorder. He did not appear distressed when talking about his persecution by the demons. He was non compliant with simple tests saying he could not spell words such as ‘school’, did not know the months of the year, and made two errors saying the days of the week backwards. He was able to complete only one set of the five character sets of the Rey 15 item test.
He was avoidant when asked about his previous involvement in court and his understanding of court processes. He stated his lawyer would ‘talk to the people’. He stated he had no idea what a judge or a jury did. He stated he would follow his lawyer’s advice. Though he stated he did not ‘remember killing anyone’, he clearly understood the meaning of guilty and not guilty.
…
I am aware there is dispute as to [JGB’s] diagnosis, however, his mental state has clearly been stable for several months. Though he describes demons and voices he does not appear disturbed by these symptoms at present. He currently presents with amnesia for his most serious alleged offences, though prior to DNA evidence being available, he gave a detailed description of his involvement with the children and repeatedly denied any involvement in the murders. He is currently an inconsistent and unreliable historian. His purported memory deficits are patchy and do not fit any recognised pattern of amnesia. His recently added symptom ‘messages from the television’ may well be an inept attempt to validate a diagnosis of schizophrenia. In my opinion he is actively trying to avoid court.
I consider [JGB] to be currently fit for trial. I believe he has a reasonable understanding of legal process and could endure a trial without serious adverse consequences to his mental condition.”
Dr Peter Fama
Dr Peter Fama, psychiatrist, examined the defendant three times – on 7 April 2003, 29 May 2003 and 14 April 2004. On each occasion the defendant insisted that he could not remember anything about the alleged offences or the victims, and Dr Fama was unable to obtain any evidence about his mental state at the time. There was simply no evidence of deprivation or substantial impairment of any of the capacities at the relevant time. Dr Fama considered that the purposive nature of his conduct (eg taking the rope from the children’s home with him, his considerable efforts to ensure the girl Kimberley went with him) and his efforts to cover up his actions and take flight were inconsistent with a deprivation of any of the capacities. There was nothing in the observations of witnesses up to the point where he was gone with the children and subsequently, or later on his return to the mother’s house to suggest that he was psychotic. Further, alcohol intoxication was a probable significant ingredient in whatever mental distress or lack of judgment he may have shown.
Although he was unable to find evidence of deprivation or substantial impairment of any of the capacities at the time of the alleged offences, Dr Fama considered that the defendant was then in the prodromal phase of a late onset paranoid schizophrenia, marked by emotional instability, preoccupation with his sexual abuse and odd spiritual ideas including those of demons being present in his life. The extreme stressors in his life in 1999 may have been the trigger for the emergence of his schizophrenia. Since his imprisonment he has become progressively emotionally withdrawn and has constantly experienced hallucinations. As well as the demons (which Dr Fama considered to be pseudo-hallucinations), the defendant has complained of ordinary hallucinations – voices in the corridor talking about him. Despite treatment with anti-psychotic medication, by April 2004 he had not improved, but was in a state of severe, chronic psychosis with a poor outlook. Dr Fama considered that he was not fit for trial by reason of his inability to absorb and understand information about the trial process or to instruct counsel in his defence.
The stark contrast between the observations and conclusions of Dr McVie and Dr Fama as to the defendant’s present state may be indicative of his consciously trying to avoid trial (as Dr McVie suggested) or they may be a reflection of fluctuations in his symptoms (as Dr Fama suggested).
Dr Jill Reddan
Dr Jill Reddan, psychiatrist, examined the defendant on 29 May and 13 June 2003. He claimed no recollection of the alleged offences. Dr Reddan observed that while his longitudinal history would suggest that at various times his mental state had been quite disturbed due to a number of influences, it was difficult to apply a precise diagnostic label. She canvassed personality disorder, alcohol abuse, cannabis abuse and paraphilia. But whatever the diagnosis, she was not persuaded of deprivation or impairment of any of the capacities.
Dr Reddan considered the defendant’s references to demons and to hearing voices. She did not think the demons necessarily reflected a psychotic process, and she thought the description of the voices was such that they were more likely pseudo-hallucinations than true auditory hallucinations. She did not think there was sufficient evidence to support a diagnosis of schizophrenia: no–one had seen formal thought disorder; his affect was not continuous, and allowance had to be made for the effects of medication, anxiety and depression; she doubted that the hallucinosis was constant as the defendant told her it was helped by medication.
At the time she first examined the defendant, Dr Reddan considered him unfit for trial, but she said that by the time of her second examination (only a fortnight later), he had improved and was fit for trial. This may be indicative of fluctuations in his presentation or in his underlying mental state.
Dr Ian Curtis
Dr Ian Curtis, psychiatrist, examined the defendant at the Woodford Correctional Centre on 15 November 2002. He comprehensively considered the history supplied by the defendant's family and the behaviour of the defendant in the Murgon watchhouse before his admission to the Toowoomba hospital. He noted the longitudinal history, what he regarded as a substrate borderline personality disorder, and the deterioration the defendant's mental condition in the 3 months before the offences. In his opinion the defendant suffers from schizophrenia of an undifferentiated type. Dr Curtis agreed with others that the defendant's experiences of demons were pseudo-hallucinations; he said they were the defendant's way of describing satanic and evil influences. Dr Curtis went on to opine that the defendant was suffering from 2 contrary delusions – one about the transmission of evil and destructiveness through his family and the other about his task to rid the world of demons and injustice. He postulated that at the time of the offences the defendant was experiencing an intense internal struggle between these delusions, which deprived him of the capacity of control. With respect to Dr Curtis, this can be no more than hypothesis, given that the defendant has not spoken about his mental processes at the time and given the absence of any supporting collateral evidence of immediate temporal relevance. I reject this hypothesis.
Conclusions on unsoundness of mind and diminished responsibility
Whatever the correct diagnosis of the defendant's mental condition, there is no evidence from which I can be satisfied on the balance of probabilities of a total deficit or substantial impairment of any of the capacities in s 27 of the Criminal Code at the relevant time. Accordingly, I find that the defendant was not of unsound mind within the meaning of the Mental Health Act and he was not suffering from diminished responsibility.
Fitness for Trial
The defendant has been in custody since February 2002. Although he has been regularly reviewed by the Prison Mental Health Service, he has not had the close and continuing daily monitoring and treatment available in a psychiatric hospital. I have already referred to the diametrically opposed opinions of Dr McVie and Dr Fama as to his fitness for trial. Dr McVie relied in part on the observations of prison warders conveyed to her orally, which is an untested and inherently unreliable basis for drawing a conclusion of malingering. Dr Fama relied in part on an assessment of the defendant being of borderline intelligence, a finding undermined by the evidence of Dr Senior (psychologist) which I accept. As Dr Wood, one of the assisting psychiatrists, noted, the observations of Dr McVie and those of Dr Fama were remarkably similar, but their conclusions different.
In the circumstances, I am not satisfied on the balance of probabilities that the defendant is fit for trial. Closer and more continuous observation and treatment in an authorised mental health service may well facilitate the resolution of this issue in due course by the Mental Health Review Tribunal.
Accordingly, I find that the defendant is unfit for trial, and that the unfitness is not of a permanent nature.
Forensic order
Pursuant to section 228(4) of the Mental Health Act, the Court must make a forensic order following a finding of temporary unfitness. In all the circumstances of this case the defendant should be detained for involuntary treatment and care in a high security program without any provision for limited community treatment.
Accordingly, I order that the defendant be detained as a forensic patient in The Park – High Security Program Authorised Mental Health Service for involuntary treatment and care.
An appeal against this decision was dismissed by the Court of Appeal. See [2005] QCA 67.
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