Re LIH
[2002] QMHC 14
•13 November 2002
MENTAL HEALTH COURT
CITATION: | Re LIH [2002] QMHC 014 |
PARTIES: | REFERENCE BY THE DEFENDANT’S LEGAL REPRESENTATIVE IN RESPECT OF LIH |
PROCEEDING NO: | 0036/02 |
DELIVERED ON: | 13 November 2002 |
DELIVERED AT: | Brisbane |
HEARING DATES: | 10, 11 September 2002 |
JUDGE: | Wilson J |
ASSISTING PSYCHIATRISTS: | Dr D A Grant |
FINDINGS AND ORDERS: | 1. That when the alleged offences were committed, the defendant was not suffering from unsoundness of mind as described in schedule 2 of the Mental Health Act 2000 (Qld); 2. That the defendant is fit for trial; 3. Order that the proceedings against the defendant for unlawful wounding, doing grievous bodily harm, killing an unborn child, unlawful possession of a dangerous drug and unlawful possession of a thing used in connection with the smoking of a dangerous drug be continued according to law. |
CATCHWORDS: | MENTAL HEALTH – DECLARATION OR FINDING OF MENTAL ILLNESS OR INCAPACITY – where defendant charged with murder – whether defendant suffered from unsoundness of mind at the time of the offence – interpretation of “some other agent” in definition of “unsound mind” in schedule 2 of the Mental Health Act 2000 (Qld) – whether defendant suffered from cannabis induced psychosis – where conflicting expert opinions given about the existence of cannabis induced psychosis – whether cannabis induced psychosis is a “mental disease” within the meaning of schedule 2 of the Mental Health Act 2000 (Qld) – where defendant suffered from acute and chronic cannabis intoxication at the time the offence was committed Re Bromage [2001] 1 Qd R 1, referred to |
COUNSEL: | J Thompson for the defendant M Lehane for the Director of Public Prosecutions |
SOLICITORS: | Legal Aid Queensland for the defendant |
WILSON J: LIH has been charged with unlawful wounding, doing grievous bodily harm and killing an unborn child on 29 June 2001. He has been charged also with the unlawful possession of a dangerous drug (cannabis sativa) and the unlawful possession of a thing (a waterpipe) used in connection with the smoking of a dangerous drug on the same date.
The matter of his mental condition at the time of the alleged indictable offences was referred to the Mental Health Tribunal by Legal Aid Queensland on 9 October 2001. The matter of his mental condition at the time of the simple offences was referred to the Mental Health Court by Legal Aid Queensland on 15 May 2002.[1]
[1]See Mental Health Act 2000 (Qld) s 257(3).
The defendant was born on 6 July 1981. At the time of the alleged offences he and his girlfriend were living in a unit in Bundaberg. She was heavily pregnant with their child. He was employed full-time fruit picking. The charges relate to a knife attack on his girlfriend as a result of which the baby died.
The defendant has a long history of illicit drug use, particularly cannabis. He commenced using cannabis at about the age of 14. With the exception of a period of about 7 months in 2000, he used it consistently until the time of the alleged offences. There was some history of polysubstance abuse - heroin, speed, LSD, datura, MDMA, as well as normally prescribed drugs such as rohypnol. In the year leading up to the alleged offences, he used only cannabis.
In early 2001 he and his girlfriend moved from Brisbane to Bundaberg. He started taking more and more cannabis, continuously smoking before breakfast, all day at work and in the evenings. His estimate of the amount he was consuming has been variously expressed as between a quarter and a half ounce per day, as costing $140 per week or between $70 and $180 per week, in addition to that supplied by friends.
A woman (“the neighbour”) lived in another unit in the same complex as the defendant and his girlfriend. She visited their unit on many occasions. Apparently she, too, had a drug habit. The defendant learnt that she was a former girlfriend of a man against whom he had given evidence in relation to a shooting. He became increasingly frightened because he knew the man would be out of jail soon. He was increasingly suspicious of the neighbour, and thought that she had bugged their unit. He said that he did not trust her because of her heroin addiction, and that she often visited to obtain marihuana. On one occasion, she left a bottle of methadone, and he began to believe that perhaps she was trying to “set [him] up”. He became convinced that men he worked with also knew her: his evidence for this was “weird remarks” he heard at work. He continued ingesting large amounts of cannabis. On his account, he started smoking “hydro” (hydroponically grown marihuana), which he obtained from the neighbour, and which, he said, was “a lot stronger than [he] had been used to”.
From 27 June 2001 his girlfriend found him odd and looking blank. He repeatedly told her he loved her and was “babbling on” in a largely incoherent manner. The next day he told her that she and the baby were “a fantasy” and that “the fantasy had come true”. He talked of having been to hell and taken the fruit, like Adam. He said he had broken all the ten commandments.
On 29 June 2001 (the day of the alleged offences) he went to work. He came home early and continued to act and talk strangely. He was worried that the baby was not his. He talked about his family manipulating him into thinking his girlfriend’s mother’s church was bad, but he now knew it was “OK”, and he was being drawn towards it. He started talking about “karma” and that all his wrongs were about to come back on him. He told his girlfriend and her mother to tell his parents that he loved them and was sorry. His girlfriend thought this strange because he did not talk to his father.
The neighbour visited the unit that evening to show the defendant and his girlfriend photos of her children. He was smoking marihuana from a waterpipe. He was saying things like, “The baby is late, I haven’t got any money, why me.” According to the neighbour, she had never seen him like this before -
“His emotions were all over the place. His moods were changing constantly. In this time he was constantly saying things that didn’t make any sense. I was talking to [the defendant] trying to tell him things like that he is only young and everything will be okay. I showed him the pictures of my children and told him that he had all this to look forward to. [The defendant] said, ‘I didn’t mean to kill my baby.’“
He glared at the neighbour, and a short time afterwards suddenly flung a glass of water over her. He explained to his girlfriend that he had done this because -
“Water is an element and I had to put the fire out.”
The defendant’s girlfriend went into the bedroom to fetch some money to ring her mother. The defendant hugged her and they ended up in the kitchen. He grabbed a vegetable knife off the kitchen bench. She tried to persuade him to put it down and to wrest it from him. Suddenly he swung his arm round, and stabbed her in the stomach. She ran outside. He followed, burst out crying and tried to hug her.
When the police arrived on the scene, they found the knife. The defendant was in the bedroom, sitting cross-legged; he had a blanket over his waist and was otherwise naked. He said -
“I’ve been doing battle with the wiles of the devil. … I fucked up. My name’s Jesus.”
He said he did not know what had happened. On the dresser section of the wardrobe, police observed two small bowls, one of them containing a small quantity of green leafy material. To the side of the bowls was a small pipe that had burnt residue in the cone. Police handcuffed him and pulled the blanket off his lap. They put a pair of shorts on him. As they began to walk him out of the house, he put his feet and hands up against the door lintels attempting to stop them from moving him.
The defendant was arrested. On 6 July 2001 he was transferred to the Rockhampton Correctional Centre, where he was placed under observation. He was confused and suicidal at reception. He continued to have psychotic symptoms for some time, including a vision of his mother. His symptoms gradually resolved, concurrently with the gradual elimination of cannabis from his system and the administration of antipsychotic medication.
This Court must determine whether the defendant was “of unsound mind” at the time of the alleged offences. In the Dictionary in schedule 2 to the Mental Health Act 2000 the following appears:
“‘unsound mind’ means the state of mental disease or natural mental infirmity described in the Criminal Code, section 27, but does not include a state of mind resulting, to any extent, from intentional intoxication or stupefaction alone or in combination with some other agent at or about the time of the alleged offence.”
Section 27 of the Criminal Code 1899 (Qld) provides:
“27. Insanity
(1)A person is not criminally responsible for an act or omission if at the time of doing the act or making the omission the person is in such a state of mental disease or natural mental infirmity as to deprive the person of capacity to understand what the person is doing, or of capacity to control the person’s actions, or of capacity to know that the person ought not to do the act or make the omission.
(2)A person whose mind, at the time of the person’s doing or omitting to do an act, is affected by delusions on some specific matter or matters, but who is not otherwise entitled to the benefit of subsection (1), is criminally responsible for the act or omission to the same extent as if the real state of things had been such as the person was induced by the delusions to believe to exist.”
The Court must determine whether he was deprived of one of the capacities by a mental disease, and if so, whether that state of mind resulted to any extent from intentional intoxication.
The “state of mind” referred to in the second part of the definition of “unsound mind” (beginning “but does not include ...”) is a description of absence of capacity caused by mental disease. This part of the definition recognises that there may be more than one cause of a deprivation of capacity. The other cause (or causes) may be intentional intoxication or something else. If intentional intoxication plays any role in bringing about the deprivation, the state of mind does not amount to “unsoundness of mind”: that is what is meant by the words “resulting, to any extent, from …”.
Mental illness may deprive someone of one of the capacities. Another capacity may be adversely affected by mental illness or by intoxication or by a combination of mental illness and intoxication (whether or not the intoxication is combined with some third factor). The extent (whether deprivation or mere impairment) and the cause or causes of the adverse effect on the second capacity cannot derogate from a finding of unsoundness of mind based on the deprivation of the first capacity.
Re Bromage [1991] 1 Qd R 1 was decided at a time before the intoxication exclusion was introduced into the definition of unsoundness of mind in the Mental Health Act 1974 (Qld) and before the complementary amendment of s 28 of the Criminal Code. There the patient suffered from the combined effect of mental disease resulting from unintentional ingestion of organo-phosphates and intentional intoxication with alcohol. Neither on its own would have resulted in deprivation of capacity, but the combination did so. The Court of Criminal Appeal upheld the decision of the Mental Health Tribunal that the patient was suffering from unsoundness of mind, observing that the Tribunal was not concerned with the distinction then in s 28 of the Criminal Code between the impact on an existing state of mental disease of intentionally caused intoxication and unintentionally caused intoxication.
Subsequently s 28 of the Criminal Code and s 28A of the Mental Health Act 1974 were amended to their present form.[2] In the second reading speech the Attorney-General said:
“Clause 11 will amend s 28 which provides the defence of intoxication to overcome an anomaly identified by the advisory working group as created by the decision of the Court of Appeal [sic] in The Queen v Bromage so that if in future a person becomes intentionally intoxicated and commits a criminal offence then he or she will not be excused from criminal responsibility if he or she has also consumed some other toxic agent and the substances act in combination on the person’s mind. Intoxication is not an appropriate defence to raise in such circumstances where the consequences of the defence of insanity are brought into play and other defences may be open on the facts. The Bill will also address the like-natured amendment of the Mental Health Act as recommended by the advisory working group.”
[2]Although the Mental Health Act 1974 has been repealed, the definition in schedule 2 to the Mental Health Act 2000 is in the same terms as the amended s 28A of the former Act.
In Re C, Mental Health Tribunal, 27 March 1998, unreported, Dowsett J considered the state of mind of a person suffering from a delusional disorder of an erotomanic type as well as intentional intoxication with alcohol. On the facts of that case, he was satisfied that the mental illness itself was such as to deprive the patient of one or more of the capacities, which deprivation was not the result of intoxication.
Dowsett J considered the effect of the amendments introduced after Bromage. He made the following points -
·Under the Criminal Code “mental disease” in s 27 includes, by virtue of s 28(1), unintentional intoxication, but it excludes, by virtue of s 28(2), intentional intoxication.
·The Mental Health Act 1974 picked up s 27 of the Criminal Code, but not s 28.
·Thus, for the purposes of the Mental Health Act 1974 a state of mind resulting from -
(i)unintentional intoxication was not included in “unsoundness of mind”; and
(ii)intentional intoxication (alone or in combination with some other agent) was expressly excluded from “unsoundness of mind”.
·The “state of mind” referred to in that part of the definition of unsoundness of mind beginning “but does not include … ” is a reference to “that state of mental disease or natural mental infirmity described in s 27 of the Code” which is referred to in the earlier part of the definition.
·The “other agent” referred to in the definition includes mental disease and other intoxicants.
·A state of mind is excluded from the definition of unsoundness of mind in two circumstances -
(i) when it is the result of intentional intoxication; and
(ii)when it is the result of the combined effect of intentional intoxication and some other agent, including mental disease.
·If the medical witnesses are able to identify a state of mind (caused solely by mental illness) such as to deprive someone of a capacity, that state of mind will not, to any extent, be caused by intoxication (even if there is concurrent intoxication). It is ultimately a question of fact to be resolved on the evidence.
In Re H, Mental Health Tribunal, 5 September 2001, unreported, Chesterman J considered the position of someone who was suffering from an amphetamine induced psychosis and amphetamine intoxication. His Honour said:
“[14] The provisions of s 27 of the Criminal Code do not apply to someone whose mind “is disordered by ... intoxication ... in combination with some other agent” - see s 28(2) of the Criminal Code. The “other agent” in the present reference is the drug-induced psychosis. This is not the same as intoxication or stupefaction from the drug but is a mental disease caused by the drug but which persists independently after the drug itself has been exuded from the system. In a case where a patient has a mental disease which deprives him of one of the capacities described in s 27, s 28(2) does not deprive the patient of a defence under s 27 because, at the same time, the patient was intoxicated. It may often be difficult to separate the effects of psychosis from intoxication but where it can be done and where it is clear that the psychosis itself is of sufficient severity to make s 27 applicable the accompanying intoxication is irrelevant.
[15] I am satisfied by the evidence of Dr Fama and Dr Estensen that the patient was, at the time of the offences, psychotic and responding to hallucinations and delusions. He may also have been intoxicated but he had an active psychosis which did persist for several weeks after he ceased taking drugs. ... “
I do not accept that “some other agent” may include the mental disease which satisfies the earlier part of the definition. That mental disease as a causative factor is dealt with in the earlier part of the definition. In the context of intentional intoxication, it may nevertheless be of sufficient intensity itself to cause deprivation of one or more of the capacities; then the definition will be satisfied. But, if the mental disease is not of that intensity and if there is deprivation only because of the concurrent effects of the mental disease and intoxication (whether or not the intoxication is combined with some third factor), the definition will not be satisfied. The “other agent” could be another intoxicant. It is unnecessary for me to determine what else may come within that expression.
The active ingredient in cannabis is delta nine-tetrahydrocannabinol (THC). Once ingested, it is rapidly absorbed into the tissues, especially those with high levels of fat, such as the brain and the testes. It has a long half life[3], generally regarded as about four days. Because of its storage in fat and its long half life, it is only slowly eliminated from the body. Ingestion of marihuana causes a prolonged intoxication. Continued usage leads to more and more intoxication and/or toxicity.
[3]The period after which half of the drug has been metabolised or eliminated from the body
Dr David Kavanagh, a clinical psychologist who has conducted control trials on the treatment of substance misuse, told the Court that there is some difference of opinion among relevant experts as to whether there is a “cannabis psychosis”. He quoted Hall, Dengenhardt and Lynskey’s The health and psychological effects of cannabis use[4] in which the authors conclude that –
[4]Hall W, Degenhardt L & Lynskey M, The health and psychological effects of cannabis use, Monograph Series No 44, Canberra, Commonwealth Department of Health and Ageing, 2001 at 92.
“The hypothesis that there is a ‘cannabis psychosis’ is still contentious…It is a plausible hypothesis that high doses of cannabis can produce psychotic symptoms but the evidence for a ‘cannabis psychosis’ is much less compelling.”
On the other hand, the American Psychiatric Association in its DSM-IV-TR distinguishes between cannabis intoxication (with or without perceptual disturbances), cannabis intoxication delirium (involving disturbances of consciousness and cognition associated with intoxication), and substance induced psychotic disorder. The presence or absence of insight, particularly into perceptual disturbances, distinguishes intoxication from psychosis. Using the classification in the DSM-IV, the defendant’s disorder was a substance induced psychotic disorder rather than intoxication.
In Dr Peter Yellowlees’ opinion the advent of psychotic symptoms is at one extreme in a continuum of cannabis intoxication. Dr Peter Fama and Dr Jill Reddan took the position that there is a separate psychotic disorder. Dr Reddan agreed that there is a progression, but was of the view that there is a cut-off point beyond which someone clearly suffers from psychosis rather than intoxication. She relied on Schuckit’s Drug and Alcohol Abuse[5] and MacFadden & Woody’s “Cannabis – Related Disorders” in Comprehensive Textbook of Psychiatry[6].
[5]Schuckit MA, Drug and Alcohol Abuse: a clinical guide to diagnosis and treatment, 5th ed, Kluwer Academic/Plenum Publisher, New York, 2000.
[6]Sadock BJ & Sadock VA, Kaplan & Sadock’s Comprehensive textbook of psychiatry, 7th ed, Lippincott Williams & Williams, Philadelphia, 2000.
I accept that cannabis induced psychosis is a mental disease within the meaning of the legislation. It is comparatively rare. Its development depends not only on the ingestion of cannabis but also on some predisposing vulnerability. A distinguishing feature of such a psychosis is that it requires the continued presence of cannabis for its own continued existence.[7] As the level of cannabis is reduced, so the psychotic symptoms resolve.
[7]
At the time of the alleged offences the defendant was both acutely intoxicated and, as the cumulative effect of his excessive ingestion of cannabis, chronically intoxicated. I am satisfied that he was also suffering from a cannabis induced psychosis. In the opinion of all the psychiatrists, he was deprived of the capacity to know that he ought not to stab his girlfriend. Drs Fama and Reddan thought that he was deprived also of the capacity to control his actions, while Dr Yellowlees thought he was deprived also of both the capacity to know what he was doing and the capacity to control his actions.
The defendant was psychotic for at least a couple of days before the alleged offences. His psychosis was the product of his chronic intoxication and some predisposing vulnerability. Its continued existence depended on the continued presence of cannabis in his system. Because of his massive and continuous ingestion of cannabis in the period leading up to 29 June 2001, and its pharmacological and pharmacokinetic characteristics, he was chronically intoxicated at the time of the alleged offences. Further, he continued to ingest cannabis right up to the time of the alleged offences, becoming acutely intoxicated as well as chronically so. The ingestion of cannabis shortly before the alleged offences prolonged the life of the psychosis, which did not resolve for some weeks - not until all the cannabis had been eliminated from his system.
In the opinions of Drs Fama and Reddan the psychosis deprived the defendant of the capacity to know that he ought not to do the act, while the intoxication contributed to the deprivation of the capacity to control his actions. In Dr Yellowlees’ opinion the defendant was in a state of confusion at the time of the stabbing, but for which it was highly unlikely he would have stabbed his girlfriend, and that confusion resulted from the acute intoxication.
I am persuaded by the evidence of Drs Fama and Reddan that the deprivation of the capacity to know right from wrong was caused by the psychosis. However, because the psychosis required the continued presence of cannabis for its own continued existence, in the circumstances the defendant’s state of mind was one resulting in part from intentional intoxication, both chronic and acute.
I record my indebtedness to the assisting psychiatrists for their elucidation of the distinction between intoxication and psychosis and their analysis of the expert evidence. Their advice was given in open court, and is in the transcript of the proceedings.
Accordingly, the defendant was not suffering from unsoundness of mind within the meaning of the Mental Health Act 2000. He is currently fit for trial. I order that the proceedings against him for the offences be continued according to law.
Contrast an amphetamine induced psychosis which may persist after the elimination of the drug from
the body.