Re KPP
[2004] QMHC 5
•15 June 2004
MENTAL HEALTH COURT
CITATION: | Re KPP [2004] QMHC 005 |
PARTIES: | REFERENCE BY THE DEFENDANT’S LEGAL REPRESENTATIVE IN RESPECT OF KPP |
PROCEEDING NO: | 0130 of 2003 |
DELIVERED ON: | 15 June 2004 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 10 June 2004 |
JUDGE: | Wilson J |
ASSISTING PSYCHIATRISTS: | Dr DA Grant |
FINDINGS: | 1. Finding that the defendant was not of unsound mind, as described in schedule 2 of the Mental Health Act 2000, at the times of the alleged offences; 2. Finding that the defendant is fit for trial; 3. Order that the proceedings against the defendant for all of the alleged offences be continued according to law. |
CATCHWORDS: | MENTAL HEALTH – DECLARATION OR FINDING OF MENTAL ILLNESS OR INCAPACITY – Unsoundness of mind – Voluntary Intoxication – Where defendant is charged with driving under the influence of liquor, failing to provide a specimen of blood and dangerous operation of a motor vehicle while adversely affected by an intoxicating substance – where defendant was voluntarily intoxicated at the times of the alleged offences – where defendant suffered a psychotic illness – where defendant reported experiencing delusion– where defendant did not recall events – whether delusion operant at times of alleged offences – standard of proof – deprivation of capacity – where expert psychiatric opinion as to which of the relevant capacities was absent diametrically opposed – whether state of mind affected by intoxication. Criminal Code (Qld), s 27 Mental Health Act 2000 (Qld), Schedule 2 |
COUNSEL: | J Devereaux for the defendant |
SOLICITORS: | Legal Aid Queensland for the defendant |
WILSON J: KPP [“the defendant”] has been charged with driving under the influence of liquor, failing to provide a specimen of blood, and dangerous operation of a motor vehicle while adversely affected by an intoxicating substance, all on 29 March 2002, which was Good Friday.
The first two charges are associated with a motor vehicle accident on the Flinders Highway about 16 kilometres east of Charters Towers at about 1.30 a.m. The third charge is associated with a subsequent motor vehicle accident on the Flinders Highway about 5 kilometres from the top of the Mingela Range at about 6.50 a.m.
His mental condition in relation to the charges was referred to this Court by Legal Aid Queensland on 27 June 2003.
The defendant was born on 25 January 1953, so that at the time he was aged 49. He was a divorced man living in Charters Towers with two of his children. He had been treated for depression some years earlier when his marriage had broken up. His general practitioner had put him back on the antidepressant, Zoloft, about one month before the accidents.
He had held bizarre religious beliefs for many years.
By occupation he was a miner. He was retrenched from work two days before the accidents. It appears he had had some notice that this would happen.
His behaviour was abnormal from 26 March. He tied a blind fold around himself. He was agitated. He refused to have the lights on in the house saying, "God is the sun." He predicted a motor vehicle accident while staring at himself in a mirror.
On the day of the accident, and I take it this must mean the 28th, he had been drinking heavily. He had splashed alcohol and water on his face.
In the first accident he swerved a number of times and veered off the road. When police arrived on the scene, his eyes were red and he smelt of liquor. When asked whether he had been drinking he replied, "Fucking oath I have." He was abusive and swearing. His speech was slurred. He had difficulty comprehending questions. There was an empty “Wild Turkey” bottle on the floor on the driver's side of the vehicle.
He was taken by ambulance to the Charters Towers Hospital. He had no apparent injuries. He refused to give a blood sample. He was aggressive and abusive. He made no reference to delusions. He was released from hospital, leaving the hospital with his son. On leaving he had to be helped and could not stand.
In the second accident he drove on to the wrong side of the road, ran off the road and overturned. When police arrived he had blood on his face and head. His speech was slurred. He was repeating some of the things he was saying. He smelt strongly of liquor. There was an empty ‘Wild Turkey’ bottle on the floor behind the passenger seat.
According to the ambulance notes there was a provisional diagnosis of multiple head injuries and he appeared delusional. He was taken to Charters Towers Hospital again. At 8.32 a.m. a specimen of blood was taken. On analysis there were 181 milligrams of alcohol per 100 millilitres of blood; that is, a blood alcohol reading of 0.181.
He was taken by helicopter to Townsville Hospital. He had a fractured skull, a haemorrhage into the left frontal extradural space, fractured bones in the face, fractured ribs, a punctured and collapsed lung. He required surgery. The effect of the head injury has not been explored before this Court.
His first contact with Mental Health was on 31 March when he was assessed by a psychiatric registrar. He was first seen by Dr Bersin, a consultant psychiatrist, on 2nd April. He was transferred to the acute mental health unit on 11 April and discharged on 18 April.
I have read the hospital notes of the examination by Dr Munt, the registrar, on 31 March. [The defendant’s] last recall was of finishing night duty on Wednesday night. He was on the work bus going back down to town when he had a vision that the bus was going to crash. He returned home and worked on his car. He started to drink rum and Coke. He was unable to recall much after that - just a few isolated events. He could recall being taken by helicopter after the accident, but then could recall nothing until waking up in the intensive care unit.
On 2nd April Dr Bersin saw him. In his notes he referred to schizophrenia and a psycho-active burst as well as alcohol abuse. He [the defendant] had paranoid ideation, but no obvious hallucinations.
On 3rd April Dr Munt noted that religious delusions were become more prominent. He [the defendant] was concerned that the devil may be out for him.
On 10 April Dr Munt noted that a few days before the accident the defendant had thought a bus was going to go over a cliff. He continually reverted to this. He denied speeding and the accident. He said even his children knew it was not him. He said there was a different voice, and that the devil tried to get rid of him that day. He believed the devil took over his body that day and drove fast. He said he was usually very careful with his car, which was his pride and joy.
There were multiple religious themes. He said that after the first accident he had been taken home by his son, that some hours later he got back in the car and crashed, but that he did not remember getting back in the car (although apparently his son had tried to stop him.)
There have been a number of reports by Dr Bersin written over the succeeding months. On 16 April 2002 Dr Bersin wrote to the chief traffic officer at Charters Towers that:
"...
psychiatric evaluation suggests that he may have been acting under the effect of delusions in that he believed that the devil had taken over his body and caused him to crash his vehicles."
More than a year later, on 30 August 2003, Dr Bersin wrote a report in which he gave a diagnosis of schizophrenia, and in which he said:
"With regards to the alleged offences of crashing motor vehicles, it is the opinion of the writer that [the defendant] was severely psychotic at the time of the incidents and that he may well have crashed his vehicle while under the delusion that the devil had taken over his body and was controlling him and the vehicle.
[The defendant] does understand the process of the law. However at the time of the accidents it appears that his actions were severely influenced by his psychotic mood and it is likely that he was not in control of his actions. Even though he had the capacity to know that he ought not to crash his vehicle it is probably [sic] that he was unable to control himself at the time."
On 17 June 2003 Dr Bersin had said:
"It was his bizarre delusions that caused him to crash his vehicle (twice) on the 29th of March 2002.
[The defendant] was suffering from a mental illness; that is schizophrenia with paranoid delusions, on each occasion that he drove his motor vehicle. This in itself was sufficient to deprive [the defendant] of the capacity to understand what he was doing and also of the capacity to control his actions, as his substantiated delusion was that the devil possessed his mind and controlled his actions.
[The defendant’s] mental state at the time of the accident deprived him of the capacity to understand and control what he was doing without the additional contribution from alcoholic intoxication. It is the opinion of the writer that [the defendant] would have crashed his vehicles in the same places at the same times on the same date, even if he had consumed no alcohol.
At the time of the vehicle accidents [the defendant] exhibited unsoundness of mind due to his schizophrenia with paranoid delusions and that [sic] he lacked the capacity to understand what he was doing and the capacity to control his actions."
Dr Kingswell examined the defendant once on 10 October 2003. He did not have the benefit of the hospital notes. He recorded that the defendant had been unwell, particularly in the two weeks leading up to the accidents. He had come home from work at 8 a.m on Thursday the 28th and given his $30,000 redundancy payment to his children. He told Dr Kingswell he felt he was going away with the devil and would need no money or fuel. He lay down in the yard and waited for the ants to eat him. He did not think he slept on the night of the 28th.
He said the first accident was at 4 a.m., that he thought he had had three rum and Cokes, that he believed the ‘Wild Turkey’ Bourbon bottle was full at the time of the first accident and empty at the time of the second. He could not remember whether he was drunk, "I must have." He could not remember whether he crashed the vehicle deliberately because the devil was trying to kill him.
Dr Kingswell thought he was in a manic phase of bipolar affective disorder, although he conceded that schizophrenia was an important factor in the differential diagnosis. He considered that the defendant was deprived of the capacity to know he ought not commit the offences and possibly, also, of the capacity of control. He said that, in his expansive mood and deluded state, the devil was directing his actions.
Dr Kingswell went on:
"Intoxication was significant. At 8.32 a.m., [the defendant’s] blood alcohol level was 0.181 or more than three times the legal limit. This level of intoxication is often associated with reckless driving and motor vehicle accidents. However, it is unlikely to cause such disordered thinking described by [the defendant] and his daughter in her affidavit. In my view, mental illness alone, notwithstanding any state of mind resulting from intentional intoxication, caused the deprivation of capacities."
A person is not criminally responsible for an offence if he was in such a state of mental disease as to deprive him of one of the three capacities in section 27 of the Criminal Code.
In the Mental Health Act, "unsound mind" is defined as the state of disease described in section 27 of the Code:
"but does not include a state of mind resulting, to any extent, from intentional intoxication, ... alone or in combination with some other agent, at or about the time of the alleged offence."
Here, I am satisfied that the defendant suffered a disease of the mind. It was a psychotic illness, whether schizophrenia or a manic phase of bipolar affective disorder.
As I have said, the effect of the head injury has not been explored in this Court.
Further, it is clear that he was intoxicated and it was conceded at the hearing that it was a voluntary intoxication.
I have to consider whether he was deprived of any of the capacities, and if so, whether that deprivation resulted from the mental disease.
Both Dr Bersin and Dr Kingswell rely on a delusion that the devil was controlling his actions. Neither was cross-examined. I am concerned at the reliance on this particular delusion.
In the hospital notes, the defendant had no recollection of the accidents but believed that it must have been the work of the devil in taking over his body. As I read the notes, he did not say that that was what happened.
He told Dr Kingswell he could not remember whether he crashed the vehicle deliberately. He said the vehicle left the road because the devil was trying to kill him, but he gave no particulars of when he first thought this. In short, I am not satisfied, on the balance of probabilities, that such a delusion was operant at the time of either crash. It may well have been his attempt at subsequently rationalising what happened.
I note that, with the passing of time, Dr Bersin's opinion has become less tentative. At first, he reported to police that he may have been acting under a delusion. He now speaks of substantiated delusion.
Further, the doctors are not in agreement about the capacity of which he was deprived. Dr Bersin said he had the capacity to know he ought not crash the vehicles but he lacked the capacities of control and to understand what he was doing.
Dr Kingswell, on the other hand, says that the capacity he lacked was the capacity to know he ought not do the act and arguably, also, that of control.
So their views on the capacities to know he ought not do the acts and to understand what he was doing are diametrically opposed.
Dr Kingswell's view on the capacity of control is hesitant, while Dr Bersin's is dogmatic. In these circumstances, I am not persuaded, on the balance of probabilities, that he was deprived of any of the capacities.
There is powerful evidence of his intoxication. Even if I were otherwise satisfied to the requisite standard that he was deprived of one or more of the capacities, I would have difficulty accepting that his state of mind at the relevant times was unaffected by the intoxication.
Thus I find that, at the relevant times, he was not of unsound mind, as described in the Mental Health Act. He is fit for trial.
I order that the proceedings against him for all of the offences be continued according to law.
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