Re Kirby
[2014] QMHC 3
•19 June 2014
MENTAL HEALTH COURT
CITATION:
Re Kirby [2014] QMHC 3
PARTIES:
REFERENCE BY THE DIRECTOR OF MENTAL HEALTH IN RESPECT OF ALLAN THOMAS KIRBY
PROCEEDING:
No 239 of 2013
DELIVERED ON:
19 June 2014
DELIVERED AT:
Brisbane
HEARING DATE:
2 June 2014
JUDGE:
Boddice J
ASSISTING PSYCHIATRISTS:
Dr J Lawrence
Dr J J SundinFINDINGS AND ORDER:
In respect of each of the alleged offences the subject of the reference, the Defendant was not suffering from unsoundness of mind as defined in the Schedule to the Mental Health Act2000 (Qld).1.
In respect of each of the alleged offences the subject of the reference, the Defendant is fit for trial.2.
Each of the alleged offences the subject of the reference is to proceed according to law.3.
The reports are to be released to the parties in the criminal proceeding.4.
CATCHWORDS:
MENTAL HEALTH – DECLARATION OR FINDING OF MENTAL ILLNESS OR INCAPACITY – where the defendant is charged with three offences of assault occasioning bodily harm whilst armed in company and one offence of grievous bodily harm – where the reporting psychiatrists give differing opinions in respect of the issues of unsoundness of mind and fitness for trial – where the assisting psychiatrists give differing opinions – whether there is a dispute of fact within the meaning of s 268 of the Mental Health Act 2000 (Qld) such the Court may not make a determination of the issue of unsoundness of mind – whether the defendant was of unsound mind at the time the offences took place – whether the defendant is fit for trial
Criminal Code1899 (Qld)
Mental Health Act 2000 (Qld)
R v Presser [1958] VR 45, cited
COUNSEL:
S Crofton for the Defendant
J Tate for the Director of Mental Health
S P Vasta for the Office of the Director of Public Prosecutions (Qld)S Dullaway for the Director of Forensic Disability Services
SOLICITORS:
Legal Aid Queensland for the Defendant
Crown Law for the Director of Mental Health
Office of the Director of Public Prosecutions (Qld)Crown Law for the Director of Forensic Disability Services
BODDICE J: By reference filed 12 September 2013 the Director of Mental Health referred to this Court the mental condition of Allan Thomas Kirby in respect of three offences of assault occasioning bodily harm whilst armed in company, and one offence of grievous bodily harm, all alleged to have been committed on 19 January 2013. Both unsoundness of mind and fitness for trial are in issue. A preliminary issue is whether there is a dispute of fact within the meaning of s 268 of the Mental Health Act 2000 (Qld) (“the Act”) such that this Court may not make any determination of the issue of unsoundness of mind.
Background
All of the alleged offences arose out of an incident at the Baillie Henderson Hospital in Toowoomba on the evening of 19 January 2013. At that time, the Defendant and his co-accused were inpatients in that facility’s secure unit, the Ridley Forensic Unit. Each complainant was a mental health care worker undertaking duties of employment as part of the evening shift in that unit.
It is alleged that at around midnight, one of the complainants observed a patient attempting to remove the steel leg from an upturned dining room table in the common area. Three of the complainants approached that patient in an effort to have him desist in that task. At that point four patients, one of whom is alleged to have been the Defendant, commenced to assault the complainants. In the course of the melee that followed, several of the complainants were kicked or punched, sustaining injuries to various parts of their bodies.
It is not alleged the Defendant was the main protagonist. The allegation against the Defendant is that he and his co-accused acted together in a common purpose, namely, to attack the complainants so as to enable the Defendants to decamp the facility. As part of this common purpose, the Defendant is alleged to have assaulted one of the complainants whilst he was on the ground, kicked another complainant’s legs from behind when he was on the ground, and tried to grabbed a third complainant whilst he was restraining another Defendant.
The Defendant does not dispute he was aware of a plan to assault mental health care workers in order to facilitate leaving the facility. He accepts he had “heard about a riot in England”, and that he had mentioned to other patients they should “start a riot here”. He also accepts there was reference to a plan to “get the keys from the nurses”. However, the Defendant’s account of his actual participation in the melee is that he watched his co-Defendants “laying into the nurses”. He said he was afraid that if he did not participate in the melee he would be assaulted by one or more of his co-Defendants. He accepts he pushed one of the complainants but says he had pushed that complainant to stop him hurting a co-patient. He also says he endeavoured to pick up another one of the complainants as he was being kicked by the others. When interviewed by Dr Thompson, the Defendant went further, denying he had assaulted anyone. He explained his contact was in an effort to stop the nurses from getting to a co-patient.
Defendant’s history
The Defendant has a history of mental illness dating back to when he was 17 years of age. At that time, he was admitted to the Baillie Henderson Hospital after having attempted to harm himself, and complaining of hearing voices and of others talking about him. His family gave a history of symptoms over a three month period. When admitted he was noted to have flat or incongruous affect and formal thought disorder. He was discharged after approximately one month and treated in the community with depot medication.
Following his discharge, the Defendant engaged in numerous aggressive behaviours. He received a number of head injuries and he abused alcohol and illicit substances heavily. Between 2005 and 2012, he was the subject of multiple admissions to his local mental health service. These admissions were precipitated by non-compliance with medication, substance misuse and stress secondary to family conflict. He reported experiencing symptoms of auditory hallucinations, ideas of reference and irritable aggressive behaviours in the context of increasing paranoia. He had also engaged in aggressive behaviour, including physical assaults on members of his family. The Defendant has been the subject of an involuntary treatment order since September 2011.
In July 2012, ongoing problems and associated aggression led to his admission to the Baillie Henderson Hospital. After an incident in which he was found with a garden hose around his neck in the grounds of the hospital, he was transferred to the Ridley Unit.
Reporting psychiatrists
Dr Thompson provided a report dated 17 June 2013. He noted the Defendant is a man of low intelligence with a limited understanding of what had happened on the night in question. The Defendant was also quite angry at the time because there had been publication of his incident in the press. Dr Thompson diagnosed the Defendant as suffering from schizophrenia, intellectual disability and probable acquired brain damage.
In Dr Thompson’s opinion, the Defendant was of unsound mind at the time of the alleged offences. His mental illness deprived him of the capacity to control his actions, and probably of the capacity to know he should not do the acts in question. The Defendant was also unfit for trial as he was functioning at too low a level to be able to instruct counsel or take meaningful part in his trial.
In evidence, Dr Thompson maintained these opinions. He did not consider there was any dispute of fact within the meaning of s 262 of the Act as any dispute arose as a consequence of the Defendant’s mental illness. In his opinion, the Defendant was exhibiting clear signs of his illness at the time of the alleged incident. The Defendant, who was not the main protagonist, was, in effect, swept up in the incident.
Dr Brown provided a report dated 30 May 2014. She opined the Defendant had a diagnosis of schizophrenia, evidenced by previous auditory hallucinations, ideas of reference and paranoid delusions. His presentation was also suggestive of an additional organic disorder. The Defendant had recently been commenced on additional medication which appeared to have reduced some of his impulsivity.
Dr Brown noted the Defendant accepted that he was involved in the planning of the incident, and in the incident itself. Whilst he continued to maintain he did not assault anyone, Dr Brown considered the overall facts indicated an involvement of all co-Defendants irrespective of their specific participation such that she assumed “the Court would not consider this a substantial dispute of the facts”.
In respect of unsoundness of mind, Dr Brown opined the medical notes did not detail any evidence of psychotic symptoms in the weeks prior to the incident, and there was no evidence in her interview, or in the interview carried out by Dr Thompson, to suggest the Defendant was suffering from delusions, passivity phenomena or other symptoms consistent with a total deprivation of the capacity to understand his behaviour on the night in question. His difficulties with emotional regulation and impulsivity may have made it possible he was partially deprived of the ability to reason, and of the ability to control his actions. However, he had participated in the planning of the incident over a period of time, it was not simply an impulsive act. Further, his suggestion to “start a riot”, in response to his ongoing detention, supported a conclusion his ability to reason remained intact. Accordingly, the Defendant was not totally deprived of any of the requisite capacities at the relevant time.
In respect of fitness for trial, Dr Brown noted that psychological testing had established the Defendant’s processing was in the low to borderline range, with his verbal performance being significantly below average and his non-verbal performance being of low average. These results suggested the Defendant is likely to have difficulties in some areas of executive function. However, Dr Brown did not consider these deficits were such as to render the Defendant unfit for trial.
Dr Brown recommended any court proceedings accommodate these relative cognitive deficits by ensuring there are regular breaks, and by facilitating regulator discussions with his counsel to allow for simplified explanations of the proceedings and evidence. Dr Brown noted the Defendant was found fit to plead in relation to another matter in November 2012.
Dr Brown maintained these opinions in evidence. She disagreed with Dr Thompson’s assessment that there were signs the Defendant was unwell on the night in question, such as to found a defence of unsoundness of mind. Dr Brown noted the Defendant’s planning in the initial phase, together with his actions in the course of the melee, were inconsistent with the presence of florid symptoms on the night in question.
Assisting psychiatrists
Dr Lawrence advised I ought to accept the Defendant suffers from a long-standing mental illness. Further, Dr Thompson’s assessment and opinion ought to be accepted and preferred to that of Dr Brown. Dr Thompson appeared to have carefully considered the relevant circumstances, against the background of the Defendant’s longstanding history. In those circumstances I ought to accept that any dispute of fact was as a consequence of the Defendant’s mental illness and, further, that that mental illness was such that he was deprived, at least, of the capacity to know he ought not to do the acts in question. Dr Lawrence advised I ought to accept Dr Brown’s assessment that the Defendant is currently fit for trial.
Dr Sundin disagreed with Dr Lawrence’s advice. Dr Sundin advised that whilst I ought to accept the Defendant has a longstanding psychiatric illness, there was no evidence to support a conclusion the Defendant’s mental illness was operative on the night in question such that he was deprived of any of the requisite capacities. Further, there was no basis to conclude the disputed facts arose as a consequence of the Defendant’s mental illness. There was therefore a dispute of fact, within the meaning of s 268 of the Act. In respect of fitness for trial, Dr Sundin advised I ought to accept the opinion expressed by Dr Brown. The deficits identified by Dr Brown could be properly accommodated by adjustments to the Court processes, whilst ensuring a fair trial.
Discussion
A mental illness?
There is little doubt the Defendant suffers from a longstanding mental illness. His multiple admissions since the age of 17, together with the reported symptoms of auditory hallucinations, are consistent with a diagnosis of schizophrenia. I accept the Defendant suffers from a mental illness within the meaning of the Act.
A disputed fact
Dr Brown’s assumption that because the same facts were relied upon, the Court would not see the Defendant’s denial of having actually assaulted anybody as not a disputed fact, is not valid. Each person’s alleged involvement in the melee must be considered in isolation. However, the basis upon which the Defendant is charged is that he was part of a planned assault on the complainants for the common purpose of facilitating each of the Defendants in their efforts to flee the facility. The Defendant does not dispute that involvement in those matters.
Each of the alleged assaults arose out of and as a consequence of the Defendant’s part in that common purpose. Whilst the Defendant may deny having actually inflicted any blows, that denial does not give rise to a reasonable doubt as to the Defendant’s guilt of any of the alleged offences the subject of the reference. There is no dispute of fact, within the meaning of s 268 of the Act.
Unsoundness
Whilst the Defendant suffers from a longstanding mental illness, I did not find Dr Thompson’s evidence that that illness was operative on the night in question, to the extent that it deprived the Defendant of any of the requisite capacities, persuasive. Dr Thompson’s basis for that assertion seemed to be premised on his analysis of how he believed the incident unfolded, and the limited involvement of the Defendant in that unfolding event together with a belief that the Defendant’s impulsivity and background of reacting quickly in an aggressive way were due to his underlying mental illness. There was no objective evidence pointed to by Dr Thompson to support a conclusion that the Defendant’s illness was operative to such an extent on the night in question that it caused a deprivation of any of the requisite capacities. The medical notes did not evidence any relevant symptoms consistent with such a flawed episode as to deprive the Defendant of any of the requisite capacities.
I accept and prefer the evidence of Dr Brown. Dr Brown impressed me as having carefully considered the objective evidence against a background of a longstanding history of impulsivity and quick reaction to events. Dr Brown noted there was no objective evidence to support a finding that any of the relevant capacities were the subject of deprivation on the night in question. Further, the Defendant’s involvement in the initial planning and encouragement of the event occurring were inconsistent with a conclusion there had been such a deprivation.
The Defendant was not suffering from unsoundness of mind at the time of any of the alleged offences the subject of the reference.
Fitness
Whilst Dr Thompson opined the Defendant is currently not fit for trial, his assessment was based upon an acceptance of a longstanding psychiatric illness in the context of significant cognitive deficits, rather than a careful consideration of each of the criteria in R v Presser [1958] VR 45. By contrast, Dr Brown carefully considered those criteria. She concluded the Defendant was fit for trial, notwithstanding his cognitive deficits.
I accept Dr Brown’s opinions in respect of the Defendant’s fitness for trial. That conclusion is consistent with the advice I received from both Dr Lawrence and Dr Sundin. Whilst the Defendant would have some difficulties as a consequence of his cognitive deficits, those difficulties can be properly and adequately addressed by appropriate steps being taken in the course of the Court proceedings. The Defendant will be able to meaningfully participate in any trial.
Orders
1. In respect of each of the alleged offences the subject of the reference, the Defendant was not suffering from unsoundness of mind as defined in the Schedule to the Mental Health Act2000 (Qld).
2. In respect of each of the alleged offences the subject of the reference, the Defendant is fit for trial.
3. Each of the alleged offences the subject of the reference is to proceed according to law.
4. The reports are to be released to the parties in the criminal proceeding.
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