Re JHW
[2002] QMHC 9
•23 December 2002
MENTAL HEALTH COURT
CITATION: | Re JHW [2002] QMHC 009 |
PARTIES: | REFERENCE BY THE DIRECTOR OF MENTAL HEALTH IN RESPECT OF JHW |
PROCEEDING No: | 0158 of 2002 |
DELIVERED ON: | 23 December 2002 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 3, 5, 6 December 2002 |
JUDGE: | Wilson J |
ASSISTING PSYCHIATRISTS: | Dr JM Lawrence |
FINDINGS AND ORDERS: | 1. Finding that when the alleged offences were committed, the defendant was suffering from unsoundness of mind as described in Schedule 2 of the Mental Health Act 2000; 2. Order that the defendant be detained as a forensic patient in the John Oxley Memorial Hospital Authorised Mental Health Service: High Security Program for involuntary treatment and care; and 3. Approval of limited community treatment in the nature of escorted limited community treatment on the following conditions: (1) that the defendant remain under the escort of a health service staff member or members nominated by the authorised psychiatrist for the duration of the limited community treatment; and (2) that for the purposes of the escorted limited community treatment, the defendant comply with the directions of the nominated staff member or members for the duration of the limited community treatment. |
CATCHWORDS: | MENTAL HEALTH – DECLARATION OR FINDING OF MENTAL ILLNESS OR INCAPACITY – where defendant charged with assault with intent to commit rape, attempted rape, deprivation of liberty, entering or being in a dwelling and committing an indictable offence, and disabling in order to commit an indictable offence – where defendant suffers from disorganised schizophrenia – whether he was psychotic at the time of the offences – whether he was suffering from unsoundness of mind within the meaning of Schedule 2 Mental Health Act 2000 – whether the schizophrenia deprived him of any relevant capacity – where conflicting expert opinions given – whether Court is satisfied there is reasonable doubt the defendant formed the requisite intent – whether that doubt exists as a consequence of his mental condition within the meaning of s 268(2) Mental Health Act 2000 – whether at the time of the offence his thought processes were so disordered, and he was so responsive to command hallucinations that he had no control over his conduct – whether the defendant needs to be detained in high security facility in an authorised mental health service. Mental Health Act 2000 (Qld), Schedule 2, s 268(2), s 268(3) |
COUNSEL: | D Shepherd for the defendant |
SOLICITORS: | Legal Aid Queensland for the defendant The Crown Solicitor for the Director of Mental Health |
WILSON J: JHW (“the defendant”) has been charged with assault with intent to commit rape, attempted rape, deprivation of liberty, entering or being in a dwelling and committing an indictable offence, and disabling in order to commit an indictable offence on 26 November 2001.The matter of his mental condition relating to the offences was referred to the Mental Health Court by the Director of Mental Health on 21 March 2002.
The defendant was born on 29 December 1982. His father is Australian and his mother Papua New Guinean. He is the youngest of five siblings. His parents’ marriage ended in late 1988, and his father has been in a relationship with another Papua New Guinean woman since 1989. They lived in Bougainville until December 1996, when the defendant, his father and step mother and his siblings moved to Dimbulah in North Queensland. Most of the defendant’s education was obtained in Papua New Guinea, but on coming to this country he attended the Dimbulah State School and then Mareeba State High School. He left school sometime during the first semester of 2001 (year 12).
The defendant suffers from schizophrenia of disorganised type. The illness had been developing over a period of up to two years prior to the alleged offences, when he had a history of school failure, social deterioration and general decline in functioning. Since the alleged offences, he has been in custody. He was transferred from the Lotus Glen Correctional Centre to the John Oxley Memorial Hospital in February 2002, where he has remained. At the time of his admission to that hospital he was suffering a very severe form of disorganised schizophrenia. There has been some improvement in his condition recently, but he still requires inpatient care.
The issue is whether, at the time of the alleged offences, his illness deprived him of one or more of the relevant capacities - the capacity to understand what he was doing, the capacity to control his actions, and the capacity to know that his conduct was wrong.
The complainant is the mother of a friend of the defendant. She was asleep in her home when the defendant entered the premises and allegedly held her down and attempted to rape her. He had been to the house on several prior occasions, and was apparently familiar with its layout. On one occasion in September 2001 the complainant had found him in the laundry going through her dirty clothes.
At about 10.00 pm on Sunday 25 November 2001 the defendant decided to walk into the town of Dimbulah from his parents’ place. He had no particular purpose in mind - he told police: “I was going to go to Dimbulah and then to Mareeba... catch a bus, from Dimbulah to Mareeba ... do heaps of stuff.. like drink.” It took him about an hour to walk into Dimbulah. He walked around the town for a while, but nothing was open and he saw nobody. Then he decided to go to the complainant’s house.
The complainant woke just before 5.00 am on 26 November 2001 having difficulty breathing. A hand or hands were covering her nose and mouth and pushing them into her pillow. The person on top of her was “dry rooting [her] from behind”. She felt a wet gushing sensation on her left buttock, and knew that the person on top of her had ejaculated on her. The underpants she was wearing felt as though they were still in place. Her attacker got off her and walked away. She rolled over, and was able to identify him as the defendant.
The defendant participated in a record of interview with police. Like many such interviews, it took the form of a series of quite structured questions, most of them closed rather than open questions. He gave an account what occurred. His short answers to specific questions were generally lucid. At other times his answers revealed disorganised thought processes - something to which I shall return shortly.
The defendant said that he went to the front door, but could not see in. About this time he knew what he was going to do. His penis became erect. He wanted “to wank”. He went to the western side of the house, and then to the back door which was closed but not locked. He entered. As he went down the stairs, he took his penis out of his pants, but did not take his pants off. He found the complainant asleep on her stomach. He told police that before jumping on her he touched the skin of her vagina using his right pointer finger. He jumped on top of her with his legs either side of her and pushed his penis in and out of the crack between her buttocks about five times, putting his left hand over her mouth and his right hand on to her neck so that she could not identify him. He told police that he was “having sex” and that her pants were still on. He said he ejaculated. Hearing her cry, he got off her and ran off. He left the house through the back door. After “doing a loop around on the back streets”, he went for a swim in a weir to clean his clothes because there was semen on his shirt, and then went home.
The defendant has been charged with attempted rape, alternatively assault with intent to rape. These are offences of specific intent. Counsel for the defendant submitted that there is a paucity of evidence in relation to an intention to rape. In the police of record of interview the defendant described his action as “I rutted her back.” He referred to wanting “a wank” and to doing “a winking thing.” At one stage he completely denied having any intentions. He described what he did in terms of lying on top of her with his legs on either side of her body. Although he pushed his penis in and out of the crack between her buttocks, he did not remove her underpants and when he ejaculated it was on to her buttock.
Section 268 of the Mental Health Act 2000 provides –
“268 Reasonable doubt person committed offence
(1)The Mental Health Court must not make a decision under section 267(1)(a) or (b) if the court is satisfied there is reasonable doubt the person committed the alleged offence (the ‘disputed offence’).
(2)However, the court may make a decision under section 267(1)(a) or (b) if the doubt the person committed the disputed offence exists only as a consequence of the person’s mental condition.
(3)If elements of the disputed offence are elements of another offence (the ‘alternative offence’), subsection (1) does not prevent the court from making a decision under section 267(1)(a) for the alternative offence.
Example for application of subsection (3) -
If the disputed offence is attempted murder, the court may make a decision in relation to the alternative offence of grievous bodily harm if the alternative offence is not disputed.
(4)If the court decides the person was of unsound mind when the alternative offence was committed proceedings against the person for the disputed offence are discontinued.”
Counsel for the defendant submitted that, having regard to the evidence in relation to intent, I ought to have a reasonable doubt that he committed either of the alleged offences. However, for the purposes of these proceedings, it was not disputed that he committed an indecent assault on the complainant; and as elements of the disputed offences were elements of the offence of indecent assault, I should make a decision on the issue of unsoundness of mind in relation to that alternative offence: see subsection (3). Counsel for the Director of Mental Health submitted that in the circumstances any doubt the defendant committed the disputed offences existed in consequence of his mental condition, and so I am not precluded from making a decision in relation to the disputed offences: see subsection (2).
It is necessary to examine the evidence before determining this issue.
The defendant was interviewed by a prison psychologist, Andrea Bates, after he had been taken into custody on 26 November 2001. He appeared evasive and contradictory when answering questions and presented with flat affect and poor eye contact, and at times smiled inappropriately. She thought his presentation was either contrived or culturally based. Later he told nurses that he was thinking about suicide and so was placed on high observations. The next day he presented in a similar way to the Risk Assessment Team. She spoke with his father about his family and cultural background. She arranged for a few inmates form Papua New Guinea to speak with him, as well as a psychologist who spoke Pigeon English. His interaction improved a little but not a great deal. The defendant’s father explained that the defendant had told a family member that he was frustrated and felt “shamed” at having to recount the details of the offences over and over. She noted that his reluctance to discuss the offences could be culturally driven as it was taboo to discuss sex in Papua New Guinea.
The defendant’s condition deteriorated. Almost two months later, on 27 January 2002 he was placed in the hospital when he refused to return to his unit after sport. Ms Bates assessed him as more evasive than usual and consistently contradicting himself. He became disruptive to the point where he had to be controlled with medication.
It was not until Dr James Woolridge, the psychiatrist who visited the prison, was called in on 29 January 2002 that the defendant was seen by a psychiatrist. Dr Woolridge saw him again two days later, and concluded that he was then psychotic. He had marked thought disorder and lacunae of clarity; once or twice he seemed to be responding to stimuli not apparent to the doctor; he made inappropriate and non-sensical responses to some questioning; he spoke of suicide. He was subsequently transferred to the John Oxley Memorial Hospital
Dr Prabal Kar, consultant psychiatrist, has treated the defendant since his admission to John Oxley. At the time of his admission he was extremely unwell and he remained so, despite treatment, for several months. This made it difficult for Dr Kar to express a concluded opinion on whether he was of unsound mind at the time of the alleged offences. For Dr Kar the issue was whether he was responding to command hallucinations at the time or whether he engaged in goal directed behaviour. At an early stage he identified command hallucinations, but then doubts set in as collateral material became available. For a long time Dr Kar was unable to elicit an apparently coherent story from the defendant. The police interview was conducted in a very structured way. Someone who is psychotic may nevertheless be able to recall and articulate factual issues. Some of what the defendant said to the police was quite bizarre and disorganised - for example, when he spoke of “heaps of step out of bodies and shit stuff” - while other parts were simply recitations of the facts. Dr Kar said he could not be certain that the defendant had been capable of giving a rational account of what had occurred. He may have been suffering command hallucinations at the time of the alleged offences, but not have expressed these to the police: concealment of such experiences is a common feature of schizophrenia. Command hallucinations do not necessarily affect all of a person’s behaviour: a sufferer may hear specific commands, and then hearing no further commands, cease the particular behaviour. Only recently has the defendant’s condition improved sufficiently for him to give Dr Kar more information about command hallucinations which affected him at the time. Dr Kar is now satisfied that at the time he was psychotic, and that he was deprived of the capacity to control his conduct.
Dr Pam van de Hoef, another psychiatrist, examined the defendant in May 2002. He was still very unwell. She did not elicit command hallucinations, although she did elicit other hallucinatory experiences. However, she was satisfied that his thoughts were so disorganised at the time of the alleged offences that he was deprived of the capacity to control his actions and of the capacity to know that he ought not do the act.
Dr Frank Varghese, a consultant psychiatrist, examined the defendant on 27 May 2002 and 20 October 2002, and spoke briefly with him again shortly before the hearing. He was of the opinion that the defendant suffers from schizophrenia, that he has profound communications difficulties (partly because of his illness and partly because his intelligence is at the lower end of normal), that he has poverty of thought and poverty of thought content, and that he exhibits schizophrenic negativism. He agreed that his illness would have affected his behaviour at the time of the alleged offences. However, he did not find evidence of deprivation (as opposed to diminution) of the capacity of control caused by the schizophrenia. He did not elicit evidence of command hallucinations, although he was satisfied of hallucinatory experiences. He said his opinion would have been different had he himself elicited the additional information about the existence of command hallucinations. In his opinion the defendant was overwhelmed by sexual desire rather than by psychosis. He conceded that the illness would have lessened his ability to control that desire, but he did not find evidence that it had deprived him of that control. He was of the same opinion whether the defendant’s intention was to rape the complainant or whether it was just to gain sexual gratification by rubbing himself against her or by masturbating. In Dr Varghese’s opinion the only relevant capacity was that of control.
Dr van de Hoef and Dr Varghese had reservations about the police record of interview similar to those of Dr Kar. The three of them were asked whether their opinions about unsoundness of mind would have been different had the charge been indecent assault rather than attempted rape or assault with intent to rape; they all responded that it would not.
I accept the submission of counsel for the Director of Mental Health that in a case such as this where the defendant was psychotic at the time of the alleged offences, where he was psychotic when interviewed by the police, and where he has remained psychotic for many months (albeit with some recent improvement), any doubt the Court may have about his specific intent exists only as a consequence of his mental condition within the meaning of s 268(2). Accordingly I intend deciding the question of unsoundness of mind in relation to the offences with which he has been charged.
At the conclusion of counsel’s submissions, I asked the Assisting Psychiatrists whether it was possible to reconcile the opinions of Drs Kar, van de Hoef and Varghese, and if so, in what way. I am very much indebted to them both for their comprehensive and lucid explanations of the illness from which the defendant suffers. (See transcript pp 117 – 127.)
Dr Wood described the effects of schizophrenia in shattering the personality of the sufferer and disordering his thought processes, leading to poverty of thought and thought content so that he is hardly able to express himself and when he does he frequently contradicts himself and gives selected answers. With the passage of time he may no longer be able to remember what motivated his actions at a particular time and his thought processes may become less accessible even to the skilled examiner. On the other hand, as he improves, some material may become more accessible. Cultural factors may add to the difficulties of access. Dr Lawrence stressed the variable and fluctuant nature of the thought disorder which can produce different responses to apparently similar questions at different points. The totality of disorganisation of the defendant’s behaviour, the evidence of thought disorder and its influence in almost shattering his behaviour and functioning over a long period of time before the alleged offences pointed to an active psychosis which deprived him of the capacities to control his actions and to know that he ought not to do what he did. She considered that analysis consistent with Dr van de Hoef’s view and ultimately consistent with that of Dr Kar.
Given the nature of the defendant’s illness, and in particular the shifting quality of its effect upon a sufferer’s thought processes, special heed must be paid to the observations and opinions of Dr Kar who has been the defendant’s treating psychiatrist over many months. I am satisfied that at the time of the alleged offences his thought processes were so disordered and he was so responsive to command hallucinations that he had no control of his conduct.
I find that when the alleged offences were committed the defendant was suffering from unsoundness of mind as described in Schedule 2 of the Mental Health Act 2000.
Having regard to the seriousness of the offences, his treatment needs and the protection of the community, he needs to be detained in a high security facility in an authorised mental health service for involuntary treatment and care. At present the only such facility is at the John Oxley Memorial Hospital, and so I shall make an order for his detention there. The defendant has expressed a wish to be transferred to Townsville which would be closer to his family. Unfortunately the recently completed high security facility there is not yet receiving patients. When it does begin to do so, the Director of Mental Health may consider transferring the defendant there.
I order that the defendant be detained in the John Oxley Memorial Hospital Authorised Mental Health Service: High Security Program for involuntary treatment and care.
I approve limited community treatment in the nature of escorted limited community treatment on the following conditions –
(1) that the defendant remain under the escort of a health service staff member or members nominated by the authorised psychiatrist for the duration of the limited community treatment; and
(2) that for the purposes of the escorted limited community treatment, the defendant comply with the directions of the nominated staff member or members for the duration of the limited community treatment.
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