Re Keeys
[2010] QMHC 44
•24 August 2010
MENTAL HEALTH COURT
CITATION:
Re Keeys [2010] QMHC 44
PARTIES:
REFERENCE BY THE DIRECTOR OF PUBLIC PROSECUTIONS IN RESPECT OF KENNETH MALCOLM KEEYS
PROCEEDING:
No 147 of 2009
DELIVERED ON:
24 August 2010
DELIVERED AT:
Brisbane
HEARING DATE:
21, 22 July 2010
JUDGE:
Philippides J
ASSISTING PSYCHIATRISTS:
Dr J Lawrence
Dr E McVie
FINDINGS AND ORDER:
There is a reasonable doubt that the defendant committed the offence of murder, such doubt not existing only as a consequence of the defendant’s mental condition.1.
Facts substantially material to the opinion of an expert witness are so in dispute that it would be unsafe to make a decision under s 267 of the Mental Health Act 2000 (Qld).2.
The defendant is fit for trial.3.
The proceedings for the alleged offence are to be continued according to law.4.
CATCHWORDS:
MENTAL HEALTH – DECLARATION OR FINDING OF MENTAL ILLNESS OR INCAPACITY – where defendant charged with the murder of his wife – where pathologist’s report indicated that the cause of death was asphyxiation – where defendant, a former police officer, had suffered from post traumatic stress disorder – where defendant claimed to have suffered amnesia and was unable to provide a complete account of the events leading to the death of his wife – where psychiatric expert opinion considered various possibilities, including post traumatic stress disorder flashback, dissociative disorder, and peri-traumatic disorder as being present at the relevant time – whether a reasonable doubt arises as to the commission of the offence of murder within the meaning of s 268 of the Mental Health Act 2000 (Qld) – whether defendant intended to kill or cause grievous bodily harm – where the defendant’s accounts were consistently that he only acted to restrain his wife – whether a dispute of facts substantially materially to the opinion of expert witnesses arises pursuant to s 269 of the Mental Health Act 2000 (Qld) – where varying accounts as to commencement and nature of the reported amnesia
Mental Health Act 2000 (Qld), ss 267, 268, 269, Schedule 2
Hansen v DPP [2006] QCA 396
Re RWC [2002] QMHC 015
COUNSEL:
A Glynn for the Defendant
J Tate for the Director of Mental HealthM Copley for the Director of Public Prosecutions (Qld)
SOLICITORS:
Robertson O’Gorman Solicitors for the Defendant
Crown Law for the Director of Mental Health
The Director of Public Prosecutions (Qld)PHILIPPIDES J:
The defendant, Kenneth Keeys, who is aged 56, is charged with the murder of his wife, Leonie Keeys, on 14 August 2007.
Background
At about 3.00 am on the day in question, the defendant attended the Fortitude Valley Police Station and told the officer on duty, “I’ve just had ah, an argument with my wife, ah she started scratching me, ah I tried to protect myself and got into a horrible fight on the floor and ah I think I’ve killed her”. The defendant did not appear to be affected by any intoxicating substance and appeared to be coherent and aware of his surroundings. The defendant was observed to have suffered a graze or scratch to his left cheek. The defendant later spoke with his solicitor and declined a formal record of interview and subsequently told psychiatrists who examined him that he had no memory of how he came to be at the police station and had only patchy memory of the events leading to the death of his wife.
Police attended at the defendant’s home address and found the body of the defendant’s wife lying face down on the floor on a bloodstained pillow in the main bedroom. The deceased was wearing a pair of pyjamas which were bloodstained and there was a dark coloured marking on her throat. There was evidence of a disturbance, with the bed and bedside table pushed out from the wall of the bedroom. An autopsy examination revealed multiple bruises mostly to the deceased’s face, neck and upper chest, both anterior and posterior. There were also bruises on the upper limbs and fractures of the left ribs. Additionally, there were petechial haemorrhages on the face and upper chest consistent with asphyxia. The pathologist’s report indicated that injuries to the neck were consistent with that caused by strangulation. The report stated that some of the bruises to the face and chest were consistent with being caused by blunt injuries (eg. punches, impact with blunt weapon) and others with being caused by grappling or holding during a struggle. The multiplicity of the bruising was said to be in keeping with the deceased having been in a fight/struggle prior to death. Death was said to have been caused by asphyxia, involving either or both of two mechanisms; strangulation and/or smothering. The report stated that it would not be able to differentiate between which of the two mechanisms was responsible for death.
Personal history
The defendant had been employed as a police officer for some 20 years, retiring in about 1994, after being diagnosed with post traumatic stress disorder (PTSD) brought on when he was shot at in the course of his duties. He was treated by Dr Byth, a psychiatrist, who reported that the defendant’s condition was severe with extensive anxiety and depression and vivid flashbacks. The condition improved with treatment, such that the defendant was able to be involved in a number of business ventures with his wife after leaving the police force.
The defendant, who was married to the deceased for some 30 years with three adult children, described an unhappy marriage to all of the reporting psychiatrists. To Dr Curtis, the defendant reported that there were unresolved problems of “dominance and submission”, amongst other marital issues. The defendant indicated that the deceased was the “predominant personality”, with the defendant being the recipient over many years of regular verbal abuse and denigration by his wife. However, their verbal disputes and emotional estrangement were said by Dr Curtis to be “ritualised and contained” in that the deceased never physically assaulted the defendant and never swore at him. For his part, the defendant was passive and reportedly never struck the deceased, nor did he verbally abuse her. To Dr Middleton, the defendant chronicled a number of complaints about his marital relationship, stating “as far as a loving relationship goes it wouldn’t qualify”. He said that he was “the minor partner in the relationship” but that there was never any major confrontation between him and his wife, “basically because it wasn’t worth it. I did what I was told”. He complained of a lack of affection and commented, “she never made any inference of wanting to talk about it. I considered my role was to produce the sperm for three children”.
The defendant’s account to the expert reporters
Dr Curtis’ report
The defendant was examined by Dr Curtis at the Brisbane watch-house on 16 August 2007. According to Dr Curtis’ report, the defendant gave an account that on the night in question, his wife “exploded with verbal and physical violence” towards him when he raised the issue of a cash transfer into their signwriting business. The defendant said that his wife used obscene language, calling him a “fucking arsehole” and described her striking him with her hand to the left side of his face so that her fingernails superficially scratched the skin. Dr Curtis reported that, thereafter, the defendant’s “continuity of memory began to be interrupted during the chaos and shock”. It was reportedly restored when he found himself sitting in his car outside the old and then closed Newmarket Police Station, where he had first been sent for duty as a probationary constable.
Dr Curtis saw the defendant again on 12 September 2007, 6 April 2009 and 29 June 2009. Dr Curtis outlined in his report the details of the defendant’s further accounts of what occurred. The defendant reported that, prior to driving home, he took a sleeping tablet so that it would “be in my system and working by the time I arrived home”, as he wanted to get to sleep quickly and he knew that his wife would be angry about him raising the need to transfer money into the signwriting business. The defendant told Dr Curtis:
“I had arrived home and I went upstairs where I had a bad coughing fit. I found it hard to breathe. So I lay down in the second bedroom and I fell asleep for a while. Then I went into the main bedroom and my wife was awake. I started to tell her about the needs of the money transfer. That’s when she swore at me and called me a fucking arsehole. Then she launched herself at me from the bed. The bed was on wheels and it went out from under her and she fell towards me with her arms and her legs going. She was going at me and she scratched me and she kept hitting and kicking at me. I remember grabbing her and we fell over together as she had also tripped. … There was furniture everywhere and I started to get an extreme sense of dizziness. I was gasping for breath. Everything was chaotic. I was losing awareness in my surroundings. For example I cannot remember at all the telephone ringing from the neighbours or even the neighbour’s dog barking. I can remember my wife’s abuse of me. … It’s odd though because later in my memory there is a memory of telephones and dogs with no real meaning for me. My next main memory is of coming to and putting my hand on her back and realising that she was dead. Then I remember having another attack of everything going grey then I touched her. Reality and sounds were disappearing all over again. I started to become sick and dizzy just like before. At that point I lost track of things completely until I pulled up at the Fortitude Valley Police Station.”
It is apparent from Dr Curtis’ evidence that the defendant did not report that he intended to kill his wife or cause her any harm; his account was that he was simply acting to restrain her. The defendant also told Dr Curtis:
“At the time of my wife’s death, I suffered a mental collapse after she launched herself at me. Everything went grey, things around me started to disappear, even sounds started to disappear and lose their relevance. I felt sick to the stomach. As much as I can remember I was collapsing with dizziness and losing my awareness of my surroundings. I do not know whether I passed out or whether I continued in a state where I was close to passing out. I remember gasping for breath and coughing and suffering badly with my tinnitus.”
Dr Middleton’s report
The defendant was seen by Dr Middleton on 4 June 2009 and again on 12 June 2009, with additional telephone contact on 17 June 2009. He obtained a more detailed account of the events in question. The defendant told him that he returned home from the business premises at about 11.00 pm on 13 August 2007 with the intention of talking to his wife about the need to transfer $5,000 between accounts. He anticipated the deceased being upset about this. He described feeling unwell and sleeping for a while in the second upstairs bedroom of the house. He was unable to say how long he had done this for before he went to the deceased’s bedroom. The defendant described the deceased being abusive after he mentioned the monetary transfer and that she launched herself “immediately” at him (“I don’t know if she was trying to gouge my eye out”) and that he “was holding [his] hands up trying to stop her”.
The defendant was aware at the time of his examination by Dr Middleton that the cause of the deceased’s death was attributed to asphyxiation or strangulation and that the pathology report made mention of “a lot of bruising”. The defendant attributed that bruising to her hitting a large timber bedside table or the steel finned oil heater beside the bed. The defendant said that, when his wife launched herself at him, the bed, which was on castors, moved out from underneath her, making her collapse/trip or fall down onto the dressing table in the direct vicinity of an oil heater. He thought that she had “got shitty” because she had fallen out of bed in trying to get at him, which annoyed her even more. He gave a description of the deceased swinging her arms at him and trying to knee him in the groin and that he took a hit from her knee on his left thigh. He described the deceased as “behaving like a maniac, arms and legs going hell for leather”. The defendant said that his options were to get out of the way or grab her arms and try and stop them. He recalled putting his right arm around her neck. He said that particular hold, a choke hold, was one police often used to restrain people in their violence. He said it was a hold used “when you are basically fighting for your life” and that he “was hoping that within a minute she’d stop and we’d be able to gather ourselves”. He recalled that he was “losing consciousness from my own coughing”, as well as experiencing “the sheer shock of it”. He said that at the time he was trying to hold her, he was also trying to control his coughing fits and trying to protect himself. He said, “There is a gap [in his memory]” between “realising she is struggling and the realisation that she was on the floor dead”. The defendant also described “fainting” a minute into the struggle with his wife. He said this started when he was gasping for breath because of his coughing fit.
The defendant’s last memory of the deceased being alive was of her struggling. He said that he thought that she stopped struggling very quickly. He told Dr Middleton of “the sheer shock of her launching herself at me and swearing” and wondered if he had held the deceased too tightly in trying to restrain her. He said that when he was attacked his emotional response was that of “pure shock” and that “anger didn’t come into it”.
Dr Reddan’s report
Dr Reddan saw the defendant on three occasions and produced a report on 26 March 2010. To Dr Reddan, the defendant described that the deceased “launched herself” at him and that struggle ensued with the deceased falling against either a bedside table or an oil heater and that they then both fell to the floor. Dr Reddan noted that to her the defendant “described bear hugging his wife”, but that he had “to others, described using a choke hold”. Dr Reddan’s evidence was that the defendant’s account to her was that he did not act to intentionally kill his wife or to harm her.
Dr Beech’s report
Dr Beech indicated that he had some difficulty in obtaining an account from the defendant. He did not obtain an account of the defendant applying a choke hold as Dr Middleton did, nor of using a bear hug as Dr Reddan did. To Dr Beech the defendant said that, when he told his wife about the need to transfer money, she immediately launched at him and swore at him. She clawed at his face and gouged his left cheek. As she did this, the bed on which he had been sitting, slid out from under her and she fell onto a bedside table and an oil heater and from there onto him. They then fell together to the floor. She became further enraged and attacked him, hitting, slapping and scratching at his face. She also kicked and kneed him. He described trying to restrain the deceased and that he started coughing and had difficulty getting his breath. The defendant said that he could feel the blood draining out of his brain and saw stars and things started to go grey. He could hear noises going on around him at the same time such as dogs barking, phones ringing and increased tinnitus in his ears. He said that he was “holding his wife and the next thing, she was limp”. He was uncertain how long he held her for but thought perhaps a minute. He thought he passed out and his next recollection was being in the bathroom and having an immense thirst and gulping down water. He thought he then lay down on the bed nearby. His next memory was being at the police station at Fortitude Valley.
Clinical opinions
Dr Curtis’ opinion
Initially, Dr Curtis considered a diagnosis of non-psychotic depressive disorder, possibly chronic, and opined that there might be a chronic adjustment disorder with anxiously depressed mood, complicating residual PTSD symptomatology. On further consideration, Dr Curtis altered his diagnosis to one of “a temporary mental dysfunction related to an acute post traumatic resurgent mental state of Dissociative Disorder”. He did so because of his opinion that the defendant’s PTSD may have been subject to aggravation and resurgence during a brief timeframe prior to the death of the deceased. Dr Curtis noted that the defendant gave inconsistent accounts as to when his memory was restored, referring on one version to the Newmarket Police Station, whereas in the second version his recollection was of going directly to the Fortitude Valley Police Station. Dr Curtis saw that as evidence consistent with his diagnosis.
I note that Dr Curtis did not diagnose the defendant as suffering from a disease of the mind and considered the defendant’s PTSD to be in remission at the relevant time. Rather, he saw the defendant as suffering from an abnormality of mind (arising, inter alia, from a residual vulnerability from his PTSD which was in remission together with certain physical ailments, including suffering from influenza) with a substantial impairment of the capacity to control his actions at the material time. Dr Curtis accepted in cross-examination that that opinion was contingent on a determination as to when the defendant’s reported dissociation commenced; that is, it was contingent on dissociation occurring as soon as the defendant “grabbed” the deceased. I also note in this regard that Dr Curtis made the following concession when questioned by Dr Lawrence:
“So I understand you’re not sure where, at what point in time the dissociation comes into operation?‑‑ No. He told me that it came into operation when his wife slipped on the bed and as I perceived the account, almost fell into his arms whilst kicking and hitting at him, allegedly, and then they – I presumed – fell to the floor together and at some point in that, which according to the account given to Dr – Professor Warwick Middleton, was about one minute into the critical incident. Now, what one minute is in those circumstances, I don’t know.”
Dr Middleton’s opinion
Dr Middleton posited several explanations of the defendant’s actions leading to the death of his wife, including planned murder, an unrestrained response of anger and aggression, fainting and/or dizzy spells, the possibility of being triggered into a post traumatic stress disorder flashback state, a dissociative disorder, and a peri-traumatic disorder. Dr Middleton dismissed unrestrained anger and aggression as a likely explanation, stating that the defendant had a long history of demonstrating appropriate assertiveness without apparent loss of control. Whilst shocked by the attack by his wife, Dr Middleton observed that, from the defendant’s account, he had attempted to restrain his wife and protect himself. As to the report of fainting and/or dizzy spells, Dr Middleton opined that this was also an unlikely explanation of the defendant’s actions, as people who faint characteristically collapse and are not capable of sustained or purposeful action such as would have been required to cause the death of the deceased. Dr Middleton dismissed a PTSD flashback state as a likely scenario, noting that at no stage had the defendant recovered any memory that put him in a state of believing that, at the time of his wife’s death, he was in another time or another place or that she was perceived as being someone else. He also noted that the defendant’s PTSD had largely settled since 1994.
Dr Middleton opined that the gaps in the defendant’s memory for the events leading up to the death of the deceased would constitute grounds for a diagnosis of Dissociative Amnesia and that the defendant had both localised and selective amnesia for the events of the night in question. He concluded the most likely explanation of the defendant’s actions was a peri-traumatic disorder. Dr Middleton opined that, against a background of having previously experienced marked accumulative trauma leading to the development of PTSD, the defendant found “the unprovoked verbal and physical attack by his wife” to be “extremely traumatic” and that it was likely that he experienced “marked peri traumatic dissociation/alterations” in his state of consciousness. Dr Middleton further opined that, up until the point for which the defendant had no accessible memory, his responses to the attack on him were in accordance with his previous training, stating:
“He administered a hold, similar to one which he had used many times in his Police work. I think that his intention was to simply restrain his wife and hope that she would settle down so that they could then talk. Mr Keeys had never been previously attacked by his wife nor spoken to with such verbal vehemence. He was already overworked, suffering with insomnia and had such a severe chest infection that he was on antibiotics and had been advised to have bed rest.”
Dr Middleton’s evidence was that it was likely that the defendant’s “field of consciousness became so narrow” such that at the relevant time the defendant’s peri‑traumatic dissociation resulted in him being deprived of the capacity to understand what he was doing and the capacity to control his actions. Dr Middleton considered that there was evidence to support peri-traumatic dissociation in the defendant’s marked difficulty in estimating the passage of time during the events of 14 August 2007, as well as the complete absence of accessible memory pertaining to his getting into his car and driving himself to the Fortitude Valley Police Station. In Dr Middleton’s opinion, the defendant’s condition amounted to a mental illness, in addition to an abnormality of mind, and was of such severity as to have resulted in a deprivation of two of the relevant capacities. Dr Middleton acknowledged the importance in terms of his diagnosis of determining the time when dissociation occurred but, on the defendant’s report to him, concluded that it had occurred at an early point in the altercation between the defendant and his wife.
Dr Beech’s opinion
Dr Beech excluded a dissociative disorder as being present at the relevant time. He was of the view that the more likely explanations of the defendant’s actions included, firstly, simple loss of control with subsequent dissociation as a response of the traumatic events of the killing, secondly, flashback as a dissociative state arising from a PTSD, and thirdly, peri-traumatic dissociation leading to the killing. Dr Beech rejected the second scenario of PTSD. While Dr Beech favoured the third scenario on the account he obtained from the defendant, he acknowledged that that account differed from that obtained by Dr Middleton. However, Dr Beech indicated that he would tend towards the first scenario if the account given to Dr Middleton were accepted. Dr Beech emphasised the importance of clarifying and determining when the defendant’s dissociation commenced both in terms of clinical diagnosis and in terms of whether the first or third scenario should be favoured, stating “the further along the struggle it becomes, the more difficult it’s for me to see that it has arisen from an abnormality of mind and not simply the conflict escalating”.
Dr Reddan’s opinion
In her report, Dr Reddan observed:
“It is a matter for a pathologist to make comment upon, but the degree and pattern of bruising and the cause of death, which the pathologist, Dr Ong opined was due to a combination of throttling or strangulation and smothering, would seem to contradict in some respects [the defendant’s] account. In any event, [the defendant] has not claimed amnesia for the whole episode. In particular, [the defendant] has not reported to any of the assessing psychiatrists that, as his wife launched herself at him, he then had no memory for subsequent events. Nor has he described any re experiencing or flashback phenomena. He has described having either a vague recollection or no memory for events during the latter part of the struggle and after he realised his wife was dead and before he arrived at the Fortitude Valley Police Station. Thus any amnesia due to any mechanism essentially developed somewhat late in the course of the events which led to [the defendant’s] death.”
In providing her opinion, Dr Reddan also made the following comments:
“In spite of the evidence collected and the evaluations performed, there are a number of unknowns in [the defendant’s] case, in particular in relation to his intent on 14 August 2007. It might be considered plausible, but perhaps not for psychiatric opinion, that [the defendant] accidentally killed his wife and he tried to defend himself. Although he denies being particularly resentful or angry towards his wife, it is difficult to not believe or at least speculate that, if his wife’s behaviour was as he described it, he was harbouring resentment, and that in defending himself he went too far as a result of an explosion of anger in response to years of significant provocation and in the context of an attack by his wife over a trivial matter. In this context, it is not necessary to speculate about or invoke psychiatric disorders or psychological defence mechanism such as dissociation. Whether explanation becomes exculpation is for others to consider.”
She opined that there was no evidence that at the relevant times the defendant was suffering from a mental disease so as to deprive him of any of the relevant capacities and was therefore of unsound mind. In her report, Dr Reddan left open whether a combination of any residual symptoms of PTSD, provocation by the defendant’s wife, a viral chest infection and a tendency to faint, as well as some peri-traumatic dissociation, was an abnormality of mind sufficient to substantially impair any capacity. However, Dr Reddan’s oral evidence was that a dissociation sufficient to represent an abnormality of mind would suggest amnesia with no recollection. She pointed out that the defendant did have a memory, albeit a fragmented one, and that the defendant in fact described quite a deal of memory. She considered that that would suggest that dissociation was not operative at the relevant time, in terms of an abnormality of mind.
Dr Reddan thus leaned towards the view that any dissociation arose after the relevant series of events commenced and, while accepting it could be characterised as peri-traumatic dissociation, made the following observations in relation to dissociation in general:
“Dissociation is a psychological defence mechanism and many psychiatrists would see it as, at times, a partial phenomenon. For example, self-absorption or intense concentration could be viewed as a partial form of dissociation. Dissociation is not necessarily pathological or abnormal in nature, and some degree of dissociation is common in ordinary day to day life. … It is also not uncommon that in certain circumstances dissociation or a degree of dissociation can be mobilised by an individual to cope with a situation and that situation does not necessarily have to be very traumatic. Dissociation can be also mobilised so that an individual can carry out that which he or she intends to do but which he or she knows should not be done.”
Dr Reddan thus also accepted that the question of when the defendant’s dissociation commenced was a critical one, because complaints of lack of memory for a killing were not uncommon, and dissociation itself was not an uncommon psychological defence mechanism utilised, without abnormality of mind being present.
Reasonable doubt?
Pursuant to s 267(1) of the Mental Health Act 2000, on the hearing of a reference the Mental Health Court must:
“(a)decide whether the person the subject of the reference was of unsound mind when the alleged offence was committed; and
(b)if the person is alleged to have committed the offence of murder and the court decides the person was not of unsound mind when the alleged offence was committed – decide whether the person was of diminished responsibility when the alleged offence was committed.”
However, the duty of the Mental Health Court under s 267(1) of the Act is by s 267(2) of the Act, expressly subject to s 268 and s 269 of the Act. Section 268 relevantly provides:
“(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.
…
(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.”
As was observed in Hansen v DPP [2006] QCA 396, under s 383 of the Act, the Mental Health Court must decide “references of the mental condition of persons” by inquiring “into the matter” referred to it. That “matter” in the present case is the defendant’s mental condition relating to the offence of murder. The task which the court is obliged to undertake requires it to come to its own decision as to whether there is reasonable doubt that the defendant committed the offence of murder prior to the making of a decision under s 267(1)(a) or (b) of the Act (Hansen at [17]).
In Hansen, the appellant sought to distinguish between the notion of “guilt” of an offence for the purposes of s 302, s 303 and s 304 of the Criminal Code and the notion of having “committed” the disputed offence. At first instance, Holmes J ruled that there was a reasonable doubt, based on provocation, as to whether the offence of murder had been committed. In upholding the decision at first instance, the Court of Appeal observed at [19]:
“… s 304 and s 304A of the Criminal Code ‘do not form a hierarchy of defences’. The Act recognises that there may be multiple bases for reasonable doubt as to whether the person committed the disputed offence, ie as to the person’s guilt of that offence. That this is so is evident in s 268(2) (which acts as a qualification to s 268(1)), which allows a decision to be made under s 267(1) if the reasonable doubt as to whether the person committed the alleged offence ‘exists only as a consequence of the person’s mental condition’ (emphasis added). Inevitably, as a matter of law, one of these bases is s 304A of the Criminal Code. It is only where the doubt as to whether the disputed offence was committed arises as a consequence of the person’s mental condition, and not some other basis for reasonable doubt, that the barrier in the path of a decision under s 267(1)(a) or (b) is lifted.”
I note that in Hansen an alternative argument was developed on appeal to the effect that the term “alleged offence” in s 268 of the Act is properly understood as referring to the offence of “unlawful killing”, in consequence of which it was contended that there could be no relevant doubt as to the commission of the offence. This argument was dismissed as being “distinctly artificial” and ignoring “the ineluctable truth that the appellant was charged with murder, and that what was referred to the court was the matter of the appellant’s mental condition relating to the offence of murder”. Moreover, as was stated at [22], “s 268 of the Act, in referring to the commission of the offence, cannot be taken to refer only to the actus reus of unlawful killing, ie the physical acts involved in the killing, because the terms of s 268(2) make it clear that a mental element is relevant to whether or not the alleged offence has been ‘committed’ for the purposes of s 268 of the Act”. The Court of Appeal at [23] adopted the following approach of Margaret Wilson J in Re RWC [2002] QMHC 015 at [25], where her Honour said:
“I do not accept the submission of Mr Ross QC for the defendant that ‘offence’ in s 268 means only the relevant physical act or acts, because, according to the submission, to include the mental element would necessarily rob [the MHC] of power to investigate a defendant’s mental condition. Even where a defendant has committed the physical acts which are elements of an offence and has done so with the requisite intent, he is entitled to be found not guilty if his mental condition was such that he was suffering from unsoundness of mind or, in the case of a charge of murder, to be found guilty only of manslaughter where his mental condition was such that he was suffering from diminished responsibility. There can be intent in the context of unsoundness of mind, although the usual legal consequences of that intent are altered in consequence of the defendant’s mental condition.”
In the present case, while there is no dispute that the deceased died as a result of the defendant’s conduct, a question arises on the material as to whether there is a reasonable doubt as to the matter of the requisite intent for the purposes of the offence of murder. I note that there is no admission as to that element by the defendant and indeed that the statements reportedly made by the defendant to the psychiatrists are against the requisite intent being present. The consistent account given to all the reporters was that all that the defendant intended to do was to restrain his wife from attacking him. The reports of all the clinicians make it clear that the effect of the defendant’s account to them was that he acted without any intent to kill or cause grievous bodily harm. The issue of intent was raised explicitly in Dr Reddan’s report as a pertinent matter for determination. Moreover, I note that, of the three scenarios postulated by Dr Beech, none proceeded on the basis that there was an intent to kill or cause grievous bodily harm.
Counsel for the defendant did not contend that the court should proceed on the basis that the requisite intent is accepted as established, nor that there could be no reasonable doubt as to the matter.
Of course, the only account of what occurred at the relevant time comes from the defendant. Clearly, it is not appropriate for the Mental Health Court to embark upon or to transgress into the area of fact finding that is ordinarily performed in a criminal trial by a jury, where the facts relating to either the physical or mental elements of the offence are in issue. Moreover, the Act is not to be interpreted in such a way as to require a defendant to give evidence before the Mental Health Court: see also the comments of Margaret Wilson J in Re RWC at [27] as to the inappropriateness of this Court trespassing into the area of drawing inferences as to intent that is properly the province of a jury.
In my view, taking into account the totality of the material before the court, there is a reasonable doubt as to the element of intent required for the offence of murder, which is not a fanciful one, nor one based on mere speculation. I should add that I do not experience a reasonable doubt as to the commission of murder on any other basis.
Counsel for the defendant however argued that, even if there was a reasonable doubt as to the commission of the offence of murder (arising as a result of the issue of intent), the court ought to consider the alternative charge of manslaughter under s 268(3). Counsel for the DPP submitted that the reasoning in Hansen’s case, although concerned, in particular, with the interaction of ss 304 and 304A of the Criminal Code, rather than the issue of the requisite intent for the offence of murder, applied to preclude such an approach in the circumstances of this case.
However, irrespective of the DPP’s submission as to the applicability of the reasoning in Hansen’s case, there are, in my opinion, a number of critical considerations relevant to s 269 which militate against the court proceeding to determine the issue of the defendant’s mental state in this case, some of which are equally pertinent in relation to an alternate charge of manslaughter, as well as to the charge of murder. Section 269 provides:
“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 ...”
On the basis of the material before the court, there are a number of factual matters, which are substantially material to aspects of the expert opinions provided to the court, including background factual issues, such as the actual means used by the defendant to restrain his wife (which was described on one account as akin to a choke hold and on another as a bear hug), and the nature and extent of the deceased’s conduct preceding the defendant’s response (which was also described in varying terms and which on some of the expert clinical opinions, eg Drs Beech and Reddan, may be relevant to the question of the extent to which ordinary emotions featured in the defendant’s conduct resulting in his wife’s death). I consider that those issues are so in dispute as to make it unsafe to proceed to determine the issue of the defendant’s state of mind at the relevant time. Nor is this reference the occasion to scrutinise the forensic evidence of the pathologist in terms of causation of the death of the deceased and in terms of its consistency with the various accounts of the defendant as to his actions to restrain the deceased, preliminary to a determination of the clinical evidence. The relevance of these matters in relation to the expert clinical evidence as to the defendant’s state of mind was the subject of the following comments by Dr McVie, one of the assisting psychiatrists:
“… in considering this case, based on the matters brought up in evidence, I think there are a number of factors which are not clinical in terms of the evidence in relation to the disorder but are very important to be considered. And, as Dr Lawrence pointed out, do make it quite difficult to – for us to give clear opinions in this case and these matters have been well canvassed. And they include the provocation, the role of a chest infection, the exact mechanism of the death, and Dr Middleton certainly thought that – brought up the idea of evidence from a pathologist whether the bruising pattern fits with a chokehold or whether the exact nature of the death can be determined more precisely. And also whether it would be useful to have police evidence to determine whether or not the chokehold, as described, was actually consistent with police training and experience.”
There is a further matter that is problematic in terms of s 269 and relevant to the charge of murder or an alternate charge of manslaughter. Dr Beech, as I have already mentioned, was quite clear in his evidence that he had difficulty in obtaining a history from the defendant, but on the basis of the account given to him, he favoured the scenario that there was dissociation leading to the conduct of the defendant resulting in the deceased’s death (the third scenario he postulated), which was also the position taken by Dr Middleton. However, Dr Beech indicated that he would not favour that conclusion on the more detailed account provided to Dr Middleton, which he considered suggested that dissociation commenced at a stage later than reported to him. Dr Beech indicated that a determination as to when the defendant’s dissociation commenced was of critical importance to his opinion as to whether the defendant should be seen as suffering from peri‑traumatic dissociation at the relevant time. It was apparent that this was also of key importance to the opinions of Drs Curtis and Middleton. I note that Dr Reddan not only highlighted the relevance of that question to her opinion, but also pointed to the importance of the nature of the reported dissociation, in particular the intermittent nature of the reported loss of memory. In the circumstances, I consider the facts as to the commencement of the defendant’s dissociation and its nature, to be substantially material facts to the expert opinion, including the opinion as to diagnosis, and so in dispute that it would be unsafe to make a decision under s 267, whether as to unsoundness of mind or diminished responsibility.
Accordingly, I find that there is a reasonable doubt as to the commission of the offence of murder, that doubt not existing as a consequence of the defendant’s mental condition, such that a decision under s 267 is precluded. Furthermore, facts substantially material to the opinion of an expert witness are so in dispute that it would be unsafe to make a decision under s 267.
As the defendant is fit for trial, the proceedings will continue according to law.
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