Re Kiesewalter

[2006] QMHC 15

MENTAL HEALTH COURT

CITATION:

Re Kiesewalter  [2006] QMHC 015

PARTIES:

REFERENCE BY THE DIRECTOR OF MENTAL HEALTH IN RESPECT OF LOTHAR KIESEWALTER

PROCEEDING:

No 0168 of 2005

DELIVERED ON:

14 August 2006

DELIVERED AT:

Brisbane

HEARING DATE:

14 August 2006

JUDGE:

Philippides J

ASSISTING PSYCHIATRISTS:

Dr J F Wood
Dr D A Grant

FINDINGS AND ORDER:

1. That the defendant was of unsound mind at the time of the offences as described in schedule 2 of the Mental Health Act 2000 (Qld)

2. That the defendant be detained as a forensic patient at The Park – High Security Program Authorised Mental Health Service

3. Approve at the discretion of the treating psychiatrist limited community treatment consisting of escorted closed bus trips off the grounds and escorted limited community treatment on the grounds of The Park – Centre for Mental Health Authorised Mental Health Service on the following conditions:

a) That he remain under the escort of a health service staff member/s nominated by the authorised psychiatrist for the duration of the limited community treatment; and

b) For the purposes of the limited community treatment he comply with the directions of the nominated staff member/s for the duration of the limited community treatment

CATCHWORDS:

MENTAL HEALTH – DECLARATION OR FINDING OF MENTAL ILLNESS OR INCAPACITY – where defendant charged with murder – where psychiatric opinion indicated the defendant was suffering from a major depressive disorder and vascular dementia at the time of the offence – where mental illness deprived the defendant at the time of the offence of the capacity to know that what he was doing was wrong – whether a forensic order should be made

COUNSEL:

Mr J Farmer for the Defendant
Mr D Lang for the Director of Mental Health

Mr M Byrne for the Director of Public Prosecutions

SOLICITORS:

Legal Aid Queensland for the Defendant
Crown Law for the Director of Mental Health

Director of Public Prosecutions

1. PHILIPPIDES J:  The defendant, Mr Kiesewalter, is charged with the murder of his wife on 12 April 2005.  The issue of his mental condition at the time of the alleged offence has been referred to this Court.

1. The defendant is a 62 year old German national who, with the deceased, his second wife, lived at Ipswich. 

1. On 13 April 2005 the defendant phoned a business number and asked for the number of the Ipswich police.  That was provided and the defendant then phoned the police and told them that he had killed his wife.  The police attended the family home and found the defendant's wife dead.

1. The defendant, when interviewed on 13 April 2005 by the police, gave an account of what had occurred. 

1. It is true that the exact chronology of events of the 12^th of April 2005 cannot be ascertained with precision from the defendant's account.  It does however appear from the account given by the defendant that he struck his wife a number of times with a hammer.  He told police that the previous day there had been an argument between his wife and himself, that he had become upset and angry because his wife was insisting that he get out of bed and had threatened to contact a son in relation to the defendant "being sick again", a reference apparently to the defendant's mental condition.  The defendant had a psychiatric history which involved an admission to hospital in Germany in 1977 following an overdose in the context of psychosocial stressors and subsequently in Australia in August 2004 and March 2005 was admitted to the Ipswich Mental Health Unit.  The defendant stated that he panicked because of his wife saying that she would contact the son and he was concerned about people finding out that he was "sick" again.

1. It appears from the defendant's account that several blows were struck and that there was some hours between the blows.  The defendant also gave an account of attempting to kill himself by swallowing an overdose of medication and also by attempting to stab himself. 

1. The defendant has given accounts of a similar nature to Dr van de Hoef, the treating psychiatrist.  On the basis of her examination of the defendant, she concluded that at the relevant time the defendant suffered from a major depressive disorder and vascular dementia.  In her report of 14 July 2005 Dr van de Hoef expressed her opinion that the defendant's condition was not such as to support a finding of unsoundness of mind, but did support diminished responsibility, on the basis that the defendant had an abnormality of the mind with a severely impaired capacity to know he ought not do the act.

1. Subsequently, Dr van de Hoef provided a further report, after the defendant disclosed to her on 4 May 2006, almost a year after the killing in question, that the deceased and the defendant had been involved in shoplifting on a regular basis for over 10 years.  The defendant described a special pouch which the deceased wore which was used to conceal items that were stolen.  These items, the defendant reported, were largely such things as grocery items, although it appears that on occasions shoes and clothing were also stolen.

1. Dr van de Hoef considered that the defendant in the further account had described a background of ruminating about guilt in relation to the shoplifting over a period of weeks up to the killing, being apprehensive and anxious that his wife and he would be caught by the police, a worsening depression and high degree of anxiety that had evolved in relation to the shoplifting he described, such that he had diminished appetite, disturbed sleep and was virtually bed and house bound.

1. The defendant also revealed that at that time over a period of weeks he planned to kill both himself and his wife as the only way out of their predicament and specifically to kill her so that "she would not have to face it alone."  He kept these plans secret from his wife and the mental health staff he saw following his discharge from the Ipswich Hospital on 21 March 2005, some weeks before the alleged offence.

1. In Dr van de Hoef's opinion, the shoplifting account was a plausible one and one which she accepted.  She considered it went some way to clarifying a number of matters in relation to the conduct of the defendant and his diagnoses.  She concluded, on the basis of the further reporting by the defendant, repeat mental state assessments and continued observation over a 12 month period, that the defendant was at the time of the offence suffering from a recurrent major depressive episode, characterised by depressed mood, guilty rumination, neurovegative shift and suicidal and homicidal plans.  These symptoms, as well as cognitive deficits, developing over time, occurred in the context of multiple strokes.  She considered that the offence ought to be seen in the light of a botched murder/suicide and the delay between the assaults and the call to confess to police, reflected the time he took to repeatedly attempt to gather courage to end his own life.

1. The additional account by the defendant of the shoplifting activities was thus an important aspect of the second report provided by Dr van de Hoef and was a significant factor in her adjusting her opinion as to the mental condition of the defendant at the time of the alleged offence to one that the defendant was deprived of the capacity to know that he ought not do the act, rather than impaired in that capacity.

1. Expert opinions were also provided by Dr Byrne and Dr Varghese, as well as Dr Beech.  Dr Varghese and Dr Byrne supported a finding of unsoundness of mind.  They did so taking into account the shoplifting history reported by the defendant.

1. Dr Byrne's opinion was that the defendant was deprived of the capacity to know that he ought not do the act.  This deprivation was due the impact of depressed mood and associated hopelessness due to major depressive disorder and cognitive impairment, including executive dysfunction, due to vascular dementia, on his ability to reason.

1. Dr Varghese saw the defendant before the further revelations about the shoplifting and found he described symptoms typical of major depression with melancholic features and with suicidal ideation.  He considered that the defendant had significant encephalopathy with neuro strokes.  Whilst he supported diminished responsibility, he did not rule out unsoundness of mind.  On receipt of the second report of Dr Van de Hoef and the report of Dr Byrne who conducted a thorough neuro psychiatric assessment, Dr Varghese provided a further report in which he also supported the applicability of a defence of unsoundness of mind.

1. On behalf of the Director of Public Prosecutions, it was submitted that the matter of the shoplifting account given by the defendant was a matter substantially material to the opinion of the expert witnesses and so in dispute that it would be unsafe for the Court to make a decision with respect to the question of unsoundness of mind.

1. The shoplifting account given by the defendant was clearly substantially material to the expert opinions.  However, neither Dr van de Hoef, Dr Byrne, nor Dr Varghese detailed in their evidence anything of substantial concern in relation to the shoplifting account as to put it in doubt. 

1. The basis for the submission, that the shoplifting account was a matter in dispute, was the delay in providing that account, a possible inconsistency in the defendant's initial and further accounts which was raised by Dr Beech, and that there was no objective independent evidence that the deceased and the defendant had engaged in shoplifting as reported by the defendant.

1. I note that whilst Dr Beech did raise some concern about the reliability of the shoplifting account, he pointed out that there were three possibilities as to that account.  One was that it was a false recollection and a result of thinking disordered by an ongoing melancholic process.  That he largely discounted.  The other two possibilities were that it was a factitious account, or that it was true.  Dr Beech accepted that the shoplifting account was unlikely to have been resorted to as a means of falsely setting up a mental health defence.  He accepted that the defendant when interviewed by him did not readily proffer the shoplifting account, was reluctant to discuss it, and did not easily link it with the killing and with the possibility of a mental health defence.

1. Dr Beech accepted the view put forward by all the other experts that there was a plausible and understandable basis for the delay in the defendant revealing the further information about the shoplifting.  This was to do with the defendant being severely depressed for a prolonged period and with not wanting to shame or betray the deceased's memory.

1. Although Dr Beech saw an inconsistency between the account given to the police and the additional account of shoplifting, the other experts did not see the accounts clinically as inconsistent or mutually exclusive, but to the contrary. 

1. Given the nature of the items the defendant stated were stolen in the shoplifting activities, one can understand the lack of objective evidence.

1. In my view, having considered the matters raised, it is not the case that the shoplifting revelations are so in dispute that it would be unsafe for this Court to proceed on the opinions provided by the clinical experts, who base their conclusions on a consideration of that matter.

1. I note that it was accepted by the Director of Public Prosecutions that, if the shoplifting account as reported by the defendant were not to be excluded, then the evidence of the clinical experts, including Dr Beech, is all to the effect that at the relevant time the defendant was, indeed, suffering from unsoundness of mind, being a major depressive disorder and vascular dementia, and that it was of such a nature as to deprive the defendant of the capacity to know that what he did was wrong.

1. In those circumstances, I am satisfied that a finding of unsoundness of mind is available on the evidence and I find that the defendant was of unsound mind at the relevant time within the meaning of Schedule 2 of the Mental Health Act 2000.

1. The clinical evidence, as supported by the assisting psychiatrist, is to the effect that a forensic order is required in this case.  I order that the defendant be detained as a forensic patient in The Park - High Security Programme for involuntary treatment and care.

1. Submissions were made in relation to limited community treatment and it was not disputed that it would be appropriate to approve escorted limited community treatment subject to the discretion of the authorised psychiatrist, in the terms of the draft submission provided to the Court, that is, that there be escorted limited community treatment consisting of closed bus trips off the grounds of The Park and escorted limited community treatment on the grounds of The Park.  I approve limited community treatment confined to escorted leave on those conditions.