Re Kennedy

[2009] QMHC 26

MENTAL HEALTH COURT

CITATION:

Re Kennedy [2009] QMHC 26

PARTIES:

REFERENCE BY THE DIRECTOR OF MENTAL HEALTH IN THE MATTER OF BRAITHEN KENNEDY AKA THOMAS STUART ROBERTSON

PROCEEDING:

No 183 of 2008

DELIVERED ON:

5 May 2009

DELIVERED AT:

Brisbane

HEARING DATE:

5 May 2009

JUDGE:

Philippides J

ASSISTING
 PSYCHIATRISTS:

Dr E N McVie
Dr G Byrne

FINDINGS AND ORDER:

1. That at the time of the alleged offences the subject of the reference, the defendant was not suffering from unsoundness of mind as described in Schedule 2 of the Mental Health Act 2000 (Qld);

2.    The defendant is fit for trial; and

3.    The proceedings against the defendant for       manslaughter are to be continued according to law.

CATCHWORDS:

MENTAL HEALTH – DECLARATION OR FINDING OF MENTAL ILLNESS OR INCAPACITY – where defendant charged with numerous offences of fraud, attempted fraud, personation, forgery and uttering, breaching bail, wilful damage and driving a motor vehicle whilst over the general but under the high limit – where conflicting expert opinion as to whether defendant suffers from a psycho-affective disorder or a mood disorder and personality disorder – whether there has been any deprivation of the capacity for control as a result of a mental illness – whether the defendant was not of unsound mind at the relevant times – whether defendant is fit for trial

Mental Health Act 2000 (Qld), Schedule 2

COUNSEL:

Ms K Prskalo for the defendant
Mr J Tate for the Director of Mental Health
Mr S Vasta for the Director of Public Prosecutions

SOLICITORS:

Legal Aid Queensland for the Defendant
Crown Law for the Director of Mental Health
The Director of Public Prosecutions (Qld)

PHILIPPIDES J:

1. Mr Kennedy is charged with 29 offences, covering offences of fraud, attempted fraud, personation, forgery and uttering, breaching bail, wilful damage and driving a motor vehicle whilst over the general but under the high limit.  The offences cover the period from January 2007 to May 2008.

1. There is evidence before the Court from Dr Storor, who is the defendant’s treating psychiatrist, and Dr Kovacevic.  Both doctors, in addition to providing reports, gave evidence.  Dr Storor, who has been the defendant’s treating psychiatrist since September 2007, was of the view that the defendant suffers from a psycho-affective disorder.  Dr Kovacevic, however preferred the diagnosis that the defendant suffers from a mood disorder and also a personality disorder.

1. Dr Storor, in a detailed report, outlined the circumstances, as he was able to glean them, relating to the various alleged offences.  In relation to what he described as the first period of alleged offending, which concerned fraudulently obtaining cash advances from the ANZ Bank and the fraudulent use of an Amex Card belonging to the defendant's mother, Dr Storor recorded that there was a reported history of the defendant ceasing medication and experiencing symptoms of mania and psychosis.  He was unable, however, to express an opinion directly in relation to those alleged offences, observing that he had no directive information about that period. 

1. Likewise in relation to what Dr Storor referred to as the second period of charges, which involved the alleged fraudulent purchase of motor vehicles in May and June 2007, the defendant reported acting under the direction of voices and gave a description of command hallucinations.  Again, Dr Storor was unable to offer any firm clinical view, observing that he had no direct knowledge in relation the history of the defendant's mental state at the relevant time.

1. In relation to the alleged offence in October 2007, which concerned fraudulently using a credit card belonging to a relatively, Dr Storor stated that he had seen the defendant in October both before and after the alleged offending, but had been unable to find any evidence of psychosis and mania. 

1. Nevertheless, Dr Storor opined that the defendant was of unsound mind at the time of all the alleged offences.  That is, in relation to the entirety of the offending.  He was of the opinion that the defendant was, as a result of his schizo-affective disorder, deprived of the capacity to control his actions. 

1. Dr Kovacevic was unable to reach the same conclusion.  He stated that in his view the events in question revealed an ability to control conduct and were quite inconsistent with a deprivation of that capacity.  He referred to a number of points to support his conclusion. 

1. Firstly he observed that there was a recognisable pattern in the defendant's reports of discontinuing his medication before the events in question - the subject of the charges.

1. Secondly, he observed that it was difficult to corroborate reported episodes of elevated mood from January to September 2007. 

1. He thirdly noted that the defendant's offending appeared to have been well planned, highly organised and mostly successfully executed.  There were no reports of causing public disturbance or generating concerns, such as would indicate conduct suggestive of severe manic state.

1. Fourthly, there was evidence of the defendant acting in an rational manner and in this regard, Dr Kovacevic referred particularly to the defendant's conduct when saw to be interviewed by police in February 2007, when he asked to speak to a solicitor and declined to participate in an interview and proffered an explanation for his conduct. 

1. Fifthly, Dr Kovacevic observed that there was evidence indicative of a capacity to defer conduct of a criminal nature.  And in this regard, referred to the conduct relating to asking for adjusting his mailing address so that new cards which he had sought could be forwarded to him directly. 

1. And finally, Dr Kovacevic referred to the fact that Dr Storor was unable to observe any psychosis or mania either on the 18th of September 2007 or 18th of October 2007 - that is on either side of the behaviour the subject of the charge on 3 October 2007.  Furthermore, Dr Kovacevic pointed out that there were gaps in the defendant's account of critical events that could not be independently corroborated or reconciled with the facts as outlined in the police material, and that the claimed amnesia was very unusual. 

1. In my view, the opinion offered by Dr Kovacevic is to be preferred.  I found the points he made in support of his conclusion to be persuasive and perhaps to be reflective of a more forensic approach than that taken by Dr Storor, who was perhaps, to some extent, coloured in his approach to the issue of whether the defendant was suffering from unsoundness of mind by the fact that he was and is the treating psychiatrist of the defendant. 

1. In the circumstances, I am not satisfied that there has been any deprivation of the capacity for control as a result of a mental illness.  I find that the defendant was not of unsound mind at the relevant times.  I find that the defendant fit for trial.  The proceedings will therefore continue according to law.  I grant leave to the parties to use the medical reports before the Court in further proceedings.