Re Kirkham

[2005] QMHC 39

MENTAL HEALTH COURT

CITATION:

Re Kirkham [2005] MHC 39

PARTIES:

REFERENCE BY THE DIRECTOR OF MENTAL HEALTH IN RESPECT OF JASON GARY KIRKHAM

PROCEEDING NO:

No 0136 of 2004

DELIVERED ON:

3 August 2005

DELIVERED AT:

Brisbane

HEARING DATE:

3 August 2005

JUDGE:

ASSISTING PSYCHIATRISTS:

Holmes J

Dr J F Wood
Dr D A Grant

FINDINGS AND ORDER:

1.   The defendant was of not of unsound mind as defined in the Mental Health Act 2000 (Qld), schedule 2, at the time of the alleged offence.

2.   The defendant is fit for trial.

3.   The proceedings for the alleged offence are to continue according to law.

CATCHWORDS:

MENTAL HEALTH – DECLARATION OR FINDING OF MENTAL ILLNESS OR INCAPACITY – where defendant charged with assault occasioning bodily harm – where evidence that the defendant has schizophrenia – whether the defendant was of unsound mind at the time of the alleged offences – whether the defendant, at the time of the alleged offences, was deprived of the capacity to understand what he was doing, or the capacity of control, or the capacity to know that he ought not to do the act pursuant to the Criminal Code, s 27 – whether the defendant is fit for trial

Mental Health Act 2000 (Qld), schedule 2

COUNSEL:

S Ryan for the defendant
W Isdale for the Director of Mental Health

M Byrne for the Director of Public Prosecutions

SOLICITORS:

Legal Aid Queensland for the defendant
The Crown Solicitor for the Director of Mental Health

The Director of Public Prosecutions

1. :HOLMES J  Mr Kirkham is charged with one count of assault occasioning bodily which allegedly occurred on 8 June 2000.  The complainant's account is given in his statement.  According to it, there had been an arrangement by which Mr Kirkham was to move out of the house that they shared.  On the morning in question when the complainant got up he told Mr Kirkham that he had some things to do and asked Mr Kirkham to remove his possessions from the house before he went to work.  In response Mr Kirkham began to scream abuse.  There was an interchange between the two.  Mr Kirkham placed him into a headlock and choked him around the neck to such an extent that he lost control of his bladder and blood came out of his ears and nose.

1. Mr Kirkham has given a different account of events, including what would appear, from the notes of the Beenleigh Mental Health Service, to have been the account given to a Gold Coast Employment Support (GCES) Officer relatively soon afterwards.  That was, that the complainant had been aggressive to him and threatened to kill him saying he had a gun (which, in fact, he did possess) and that it was in response to that threat that Mr Kirkham had placed him in a headlock and held him some time.  There seem, subsequently, to have been similar accounts given to Dr Fama and to the police.

1. Seventeen days after these incidents there was another event.  Mr Kirkham stabbed his uncle.  That was on 27 June 2000.  He was charged with attempted murder.  In respect of that charge Drs White and Fama both concluded that he suffered from chronic schizophrenia which had deprived him of the capacity to know he ought not to do the act.  It seems that at that time he was suffering from delusions including that he was a God and that there was a conspiracy to try and control him.

1. But in respect of the present charge, Dr Fama did not support a finding of unsoundness.  He records, in his report, in relation to the attempted murder that Mr Kirkham told him he had only begun to experience psychotic symptoms about three days before stabbing his uncle, which would be about 24 June 2000.  Dr Fama said that at the time of the events constituting the present events, that is to say, 8 June, there was no clear history of psychotic symptoms and, in contrast, Mr Kirkham had given the specific account of experiencing them about a fortnight later.  Dr Fama said that it was very difficult to say what Mr Kirkham's mental state was on 8 June.  He thought the most likely interpretation was that Mr Kirkham was in a pre-psychotic phase so that he was paranoid and sensitive, not actually deluded.

1. Dr Buntting, who has been Mr Kirkham's treating psychiatrist since January 2004 has both reported and given evidence.  He did consider that Mr Kirkham had a mental disease depriving him of all three relevant capacities at the relevant time.  He thought it was likely that he was operating under a paranoid delusion that he was being attacked. 

1. I should say that Mr Kirkham has a history of admission to the Gold Coast Hospital as early as 1999 with what was described then as a first psychotic presentation.  Dr Buntting took the view that he had been experiencing continuing illness.  It was likely at this time that there was a relapse.  Dr Buntting's reasons for this conclusion are largely based on his experience of Mr Kirkham.  He says that when he is non compliant with medication and smokes cannabis, and it seems to have been the case as at June 2000, he is given to experiencing a relapse into acute symptoms.  It was, of course, a process of extrapolating back.

1. Dr Buntting does rather seem to assume that if there were such relapse it follows that Mr Kirkham must have been deprived of the capacities; and he seems not to distinguish particularly between the capacities.  It is a general deprivation of all capacities, on his account.

1. Over the relevant period, Mr Kirkham was being reviewed by the Beenleigh Mental Health Service.  It does describe his problems with cannabis but it is fair to say, I think, that there is no specific evidence of intoxication on the day in question. 

1. The notes are of some small assistance, however.  There is a note for 8 May 2000 which says that there is now no evidence of positive or negative symptoms although it also goes on to observe that Mr Kirkham is generally non compliant with his medication; at that stage, it seems, Olanzapine.  There is no further note between then and 2 June. 

1. On 28 June there is an account of a phone call with the GCES Officer to whom it seems Mr Kirkham must have given the account that I described earlier.  It is true that this is a second-hand account and must be treated with some caution but the version of events does seem remarkably consistent with that given to Dr Fama, and it seems relatively precise about the incidents; which suggests the GCES Officer had discussed things with Mr Kirkham. 

1. The notes then outline something of a history, that Mr Kirkham's grandmother had died the day after the incident with his housemate, and there had been the death of a cousin.  The following week, there had been a car accident and he had been off work for a few days.  This is noted:  there seemed no obvious symptoms of illness.  He worked on 24 June but failed to turn up at a family function on Sunday and had not attended work Monday or Tuesday and then he seems to have gone missing.  It is after that that the stabbing must have occurred.

1. This is a situation in which there is no evidence of any specific delusion on the date in question.  The account that Mr Kirkham gave to others after the event was not obviously delusional, although it was exculpatory.

1. His history, as given to Dr Fama, is specific about psychotic symptoms emerging just before the stabbing.  The Beenleigh notes seem roughly consistent with that in the sense that it is after 24 June that he seems to disappear from his family's contact for a period and did not go into work.

1. The question of his mental state on 8 June 2000 clearly enough cannot be resolved.  The evidence rather points, in my view, to Dr Fama's perhaps more careful and considered approach which is to say that there is a strong possibility that Mr Kirkham was in a pre-psychotic phase, but there is simply no clear or cogent evidence of delusions on that day.

1. On the whole, on the balance of probabilities, and having regard to what both Dr Wood and Dr Grant have said in addition, it seems to me that there simply is not sufficient evidence to make a finding, on the balance of probabilities, that Mr Kirkham was suffering from unsoundness of mind on the day in question.  I decline, therefore, to make any such finding.  He is, it seems, presently fit for trial.  The matter should proceed according to law.