Re KSR

[2005] QMHC 38

MENTAL HEALTH COURT

CITATION:

Re KSR [2005] QMHC 038

PARTIES:

REFERENCE BY THE DEFENDANT’S LEGAL REPRESENTATIVE IN RESPECT OF KSR

PROCEEDING NO:

0029 of 2005

DELIVERED ON:

21 November 2005

DELIVERED AT:

Brisbane

HEARING DATE:

21 November 2005

JUDGE:

ASSISTING PSYCHIATRISTS:

Holmes J

Dr J F Wood
Dr D A Grant

FINDINGS AND ORDER:

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

2.   With respect to the alleged offence of murder, there is a dispute relating to a substantially material fact, as defined in the Mental Health Act 2000 (Qld), s 269, which precludes a finding as to diminished responsibility.

3.   The defendant is fit for trial.

4.   The proceedings are to continue according to law.

CATCHWORDS:

MENTAL HEALTH – DECLARATION OR FINDING OF MENTAL ILLNESS OR INCAPACITY – where defendant charged with murder and two counts of torture – where evidence that the defendant had depression and a personality disorder – 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 was of unsound mind – whether, in relation to the murder charge, the defendant was of diminished responsibility – whether there exists a dispute relating to substantially material facts pursuant to s 269, Mental Health Act 2000 (Qld) which precludes a finding of diminished responsibility – whether the defendant is fit for trial

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

COUNSEL:

B Devereux for the defendant
J Tate for the Director of Mental Health

D Mackenzie 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:  KSR is charged with two counts of torture of his de facto wife, PD, and her daughter between 26 October 2002 and 1 November 2002, and with the murder of PD on 31 October 2002.  On that date he called ambulance officers to the house in which the three of them were living.  He told them that he had assaulted PD with a cricket bat.  They found PD lying on a bed.  She was not breathing, had no pulse, and attempts to revive her were unsuccessful.  They noted obvious bruising to her legs, chest, arms and face.  In the next room, they found her daughter who was then aged nine.  She had bruising on her arms and legs.  She said that KSR had hit her with a belt. 

1. A post-mortem examination was carried out on PD.  It revealed bruising on her face, neck, arms, chest, and legs.  There were a number of rib fractures.  The pleural cavities were congested and bruised, and there was an area of contusion to the liver. There was bruising to the neck consistent with neck compression.  The rib fractures and liver injury were consistent with stomping while PD was recumbent.  The cause of death was given as asphyxia from multiple injuries.  The estimated time of death was up to 24 hours prior to the arrival of the ambulance officers.  There is some evidence that PD's family had been excluded from contact with her at the time. 

1. PD’s daughter was examined by a doctor.  She had bruising over most of her body and many of the marks were consistent with the use of a belt.  She was interviewed on 1 November 2002.  She explained that she had been told by KSR in the days prior that her mother was in bed sick.  She said that she had been hit with the belt on her back, legs, and arm, and struck with a hand on the face.  She was not sure which was the last day she had seen her mother.  She had not been permitted to see her for, perhaps, three days previously. 

1. KSR was examined by Dr Curtis on 8 November 2002.  He told Dr Curtis that at the time of the alleged offences he was drinking bourbon heavily and regularly and smoking about 10 cones of cannabis per day.  In fact, subsequently to Dr Van de Hoef at the prison, KSR gave an account of a much heavier level of ingestion of cannabis.

1. KSR told Dr Curtis he had been taking an antidepressant but had ceased some weeks or months prior to these events.  His parents had described him as having been depressed for some time previously.  At that time Dr Curtis considered KSR was suffering from a major depressive disorder with probable psychotic features which amounted to a mental infirmity such as to deprive him of all the relevant capacities at the time of the alleged offending.

1. However, since that time, Dr Curtis has seen prison notes which have caused him to revise his view of the degree of depression suffered by KSR and has also had the opportunity of seeing later reports of Dr Reddan and Dr Varghese.  In short, his opinion, as given in evidence today, was that although KSR was suffering from a depressive disorder which amounted to a mental abnormality, it was not such as to amount to a substantial impairment of any of the relevant capacities.

1. Dr Varghese saw KSR in May and June 2003 and took a history from him of depression, cessation of medication, drinking to a considerable extent with some reduction before the incident and smoking up to half an ounce of cannabis per week.  Dr Varghese considered that there was a personality disorder with antisocial personality traits on a history from KSR’s general practitioners in the years 2000 to 2002.  There was what Dr Varghese called a syndromal depression; that is to say that the criteria for depression were met.

1. Dr Varghese did not consider that there was anything in KSR's mental state which would amount to depriving him of any of the relevant capacities.  He said that if KSR’s mental state, that is to say, personality disorder with depression and substance abuse, operated in the context of a sustained period of violence, multiple blows inflicted over a period of time, that would indicate against any impairment of capacity; on the other hand, if what had been involved was a single short episode of violence causing PD's death, the prospect of diminished responsibility was open.

1. Dr Reddan also reported and gave evidence.  She had examined KSR in October 2004.  He had described hallucinatory phenomena to her.  She found that quite unconvincing.  She considered that he exhibited a personality disorder with antisocial and paranoid traits.  He was, she accepted, suffering depression but on examination of the prison records she considered that that was not a major depressive disorder.

1. Dr Reddan said that there was no evidence KSR was deprived of any of the relevant capacities.  It was only if it were concluded that a deficient conscience in the context of a personality disorder constituted an abnormality of mind that any question of substantial impairment in the capacity to know he ought not to do the act arose.  Now that, I think, is a conclusion one might arrive at from the philosophical perspective but not from a legal one.  In fact, Dr Reddan thought he was not substantially impaired.  There were aspects of his conduct, apparently hiding PD’s state from others, which indicated to the contrary.

1. There is evidence which would lead to a conclusion that this was, in fact, a protracted series of events.  On the other hand, KSR's account given to Dr Reddan rests on a relatively short period of time in which the assaults occurred.

1. The conclusions I come to are these: that there being no evidence at all to support a complete deprivation of capacities, KSR was not of unsound mind at the time either of the offences of torture or murder were allegedly committed. On the question of diminished responsibility, there is a fact substantially material to the opinions of the expert witness so in dispute it would be unsafe to make the decision, pursuant to s 269 of the Mental Health Act 2000, and that is the course of conduct which led to PD's death. It seems to me that, although one can draw inferences from the pathologist's report, it would be inappropriate to do so in the absence of actual evidence from the pathologist, particularly. It may be also that there is other ancillary evidence about the circumstances leading to the death, which sheds more light on in what circumstances it happened.

1. That being the case, I will not make a decision in respect to the question of diminished responsibility.  The evidence is uniform that KSR is fit for trial.   The matter should proceed according to law.