Re Kong

[2008] QMHC 22

MENTAL HEALTH COURT

CITATION:

Re Kong [2008] QMHC 22

PARTIES:

REFERENCE BY THE DIRECTOR OF MENTAL HEALTH IN RESPECT OF DANIEL SOCHEAT KONG

PROCEEDING:

Proceeding No 0028 of 2007

DELIVERED ON:

8 May 2008

DELIVERED AT:

Brisbane

HEARING DATE:

8 May 2008

JUDGE:

Philippides J

ASSISTING PSYCHIATRISTS:

Dr F Varghese
Dr E N McVie

FINDINGS AND ORDER:

1.   In respect of the alleged offences of going armed to cause fear, possession of a knife in a public place, and possession of tainted property:

a. the defendant was of unsound mind as described in Schedule 2 of the Mental Health Act 2000 (Qld) (“the Act”) at the time of the commission of those alleged offences;

b.   the defendant be detained as a forensic patient to the Logan/Beaudesert Authorised Mental Health Service for involuntary treatment and care;

c.    limited community treatment be approved at the discretion of the treating psychiatrist in accordance with the conditions outlined in the submission from the Director of Mental Health;

2.   In respect of the alleged offences of attempted robbery in company, possession of a dangerous drug, possession of pipe or utensil, and possession of pipes for smoking cannabis and cocaine:

a. the defendant was not of unsound mind as described in Schedule 2 of the Act at the time of the commission of those alleged offences;

b.   the defendant is fit for trial;

c.    proceedings in respect of those alleged offences continue according to law.

CATCHWORDS:

MENTAL HEALTH – DECLARATION OR FINDING OF MENTAL ILLNESS OR INCAPACITY – where defendant charged with attempted armed robbery in company, going armed in public so as to cause fear, possession of a knife in a public place, possession of tainted property, possession of a pipe or utensil, possession of cannabis, and possession of pipes for smoking cannabis and cocaine – where the defendant suffers from bipolar effective disorder – where expert evidence differs – where evidence of intentional intoxication in relation to a relevant time is present and in question – whether the defendant is of unsound mind

Mental Health Act 2000 (Qld), s 269, Schedule 2

COUNSEL:

Mr J Farmer for the defendant
Mr W Isdale for the Director of Mental Health

Mr D Finch for The Director of Public Prosecutions (QLD)

SOLICITORS:

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

The Director of Public Prosecutions (QLD)

1. PHILIPPIDES J:  Mr Kong is charged with seven offences.  They are attempted armed robbery in company on 8 August 2003; going armed in public so as to cause fear on 30 December 2005; possession of a knife in a public place, also on 30 December 2005; possession of tainted property on 31 December 2005; possession of a pipe or utensil on 31 December 2005; possession of cannabis on 7 January 2006; and possession of pipes for smoking cannabis and cocaine, also on that date.

1. The defendant suffers from bipolar effective disorder.  In relation to the charges of going armed to cause fear, possession of a knife in a public place, and possession of tainted property, there is support from Dr Fama and Dr Garg for a finding of unsoundness of mind on the basis of his mental illness.  That opinion is also supported by the assisting psychiatrists.  I am satisfied that in relation to those charges the defendant was of unsound mind at the relevant times.

1. In relation to the charges of possession of a dangerous drug and possession of utensil pipes, I note that there is a difference of opinion between Dr Fama and Dr Garg as to whether the defendant was unsound mind at the relevant time.  Dr Fama took the view that the defendant was of unsound mind, whereas Dr Garg was unable to reach that conclusion.

1. I note the advice of both assisting psychiatrists on the matter.  Dr Varghese was clear in his support for Dr Garg's position, as was Dr McVie.  I note that Dr Garg’s opinion was reached after having regard to the statements made by the defendant in relation to those charges.  In my view, the opinion reached by Dr Garg that the defendant was not of unsound mind at the time of the offences of possession of the dangerous drug and possession of utensils or pipes is persuasive and to be preferred.  Accordingly, I find that in relation to those charges the defendant was not of unsound mind.  I find that the defendant is fit for trial.  Those proceedings will continue according to law.  I grant leave to the parties to use the medical reports before the Court in further proceedings.

1. That leaves the charge of attempted robbery on 8 August 2003.  Initially, Dr Fama and Dr Garg were of the opinion that the defendant was of unsound mind at the relevant time in that he was suffering from hypomania and, relevantly, deprived of capacity.  However, after viewing a report from Dr Butler, they retracted their support for a finding of unsoundness of mind with respect to that alleged offence.

1. Dr Garg in his letter of 24 January 2008 sets out the basis for his change of opinion.  He notes the admission made to Dr Butler by the defendant that he had smoked crystal meth some 2½ hours prior to the alleged offence.  He also noted that the examination of the defendant by Dr Johnson in the watch-house revealed no signs of mania, psychosis or disorganised thinking.  In those circumstances he observed that it was more than likely that any deprivation of capacity in the defendant to know that he ought not do the act was due to intoxication, and accordingly, altered his opinion that a mental health defence ought to be available.

1. Dr Fama in his report of 31 December 2007 set out his reasons for retracting his support for a defence of unsoundness of mind.  The two grounds stated by Dr Fama are firstly that, given the admission to Dr Butler, he was of the view that it might reasonably be considered that the defendant's disturbance of mind was at least, in part, attributable to intoxication.  Secondly, he also went on to opine that in any event the defendant's disturbance of mind probably did not deprive him of the capacity to know that he ought not to do the act, although it may well have impaired him in that capacity, and accordingly, he could not support a defence to the charge.

1. Dr Butler was asked to review his opinion provided in his report of 14 November 2004 where he outlined the admission made by the defendant as to use of amphetamines some hours before the alleged offence and opined that the defendant was not of unsound mind.  He reviewed that initial opinion in an update report of 2 May 2008.  The basis upon which he was asked to review his opinion was that the defendant had indicated that he had made an error in stating the circumstances of his taking the amphetamine and that the accuracy of his statements to Dr Butler were in question.

1. Indeed, counsel for the defendant submitted that a finding ought to be made pursuant to s 269 of the Mental Health Act that there was a fact substantially material to the opinion of an expert witness which was so in dispute that it would be unsafe to make a decision as to the defendant's state of mind.  The substantially material fact which it was said was in dispute was the circumstances and accuracy of the admission as to drug use made to Dr Butler by the defendant.

1. I note, however, that in Dr Butler's update report of 2 May 2008 he dealt in some considerable detail with the separate question, which Dr Fama also addressed, as to whether the defendant's mental illness was in any event of such a degree of severity as to deprive him of a relevant capacity.  He concluded that it was not of such severity.  Accordingly, leaving aside the question of whether or not intoxication was an operative factor, he came to the same conclusion as Dr Fama that the defendant's bipolar disorder had not resulted in any deprivation of capacity at the relevant time.

1. That view was also favoured by one of the assisting psychiatrists, Dr Varghese. I note however that the other, Dr McVie, felt unable to come to a concluded view about the matter, considering that the issue was uncertain and that the observations in the watch-house were not sufficient for her to be satisfied as to the factual background concerning the severity of the defendant’s symptoms. As I say, Dr Butler did in his further report review the issue extensively. Dr Varghese considered the conclusion reached by Dr Butler to be a persuasive and sound one. No s 269 Mental Health Act issue is raised beyond the limited one concerning the accuracy of the evidence of intoxication.

1. I do not consider that the intoxication issue can be resolved in this case because of the uncertainty as to the evidence relating to it.  There is in any event no need to do so, because I am on balance satisfied by the medical evidence before the court that the defendant was not at the material time suffering from a mental illness so as to be deprived of a relevant capacity, that being the view taken by Dr Fama and Dr Butler and preferred by Dr Varghese.  Accordingly, I find that the defendant was not of unsound mind at the time of the commission of that alleged offence.

1. In relation to the matters in which a finding of unsoundness of mind has been made, I consider that a forensic order is warranted.  The Director of Mental Health has provided a draft submission dealing with the nature of the limited community treatment that it is proposed ought to be approved.  I make an order detaining the defendant to the Logan/Beaudesert authorised mental health service, and I approve limited community treatment to commence immediately at the discretion of the treating psychiatrist in accordance with the conditions outlined in the submission from the Director of Mental Health.