Re LMB

[2004] QMHC 14

MENTAL HEALTH COURT

CITATION:

Re LMB [2004] QMHC 014

PARTIES:

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

PROCEEDING NO:

0210 of 2003

DELIVERED ON:

23 September 2004

DELIVERED AT:

Brisbane

JUDGE:

ASSISTING PSYCHIATRISTS:

Wilson J

Dr J F Wood
Dr J Lawrence

FINDINGS:

(1) That the defendant was suffering from unsoundness of mind at the time of the alleged offences;

(2) That the defendant should be detained as a forensic patient in The Park High Security Program;

(3) That two types of limited community treatment at the discretion of the authorised psychiatrist is approved:

(1)     Escorted leave on the grounds of The Park - Centre for Mental Health on conditions:

(i)  That she remain under the escort of a health service staff member or members nominated by the authorised psychiatrist for the duration of the limited community treatment; and

(ii) That for the purposes of the limited community treatment she comply with the directions of the nominated staff member or members for its duration.

(2)    Unescorted leave off the grounds of the High Security Unit at The Park but limited to the grounds of The Park on conditions:

(i)  That she remain within the grounds of The Park - Centre for Mental Health;

         (ii)  That she return to the ward at the time specified by the authorised psychiatrist;

(iii)  That she abstain from using alcohol and illicit drugs and co-operate fully in random medical tests for those substances as required by the authorised psychiatrist;

(iv)   That each period of unescorted leave be

for a maximum 2 hours duration;

(v)    That the periods of unescorted leave be

 limited in number to one period per day, totalling 5 periods per week.

CATCHWORDS:

MENTAL HEALTH – DECLARATION OR FINDING OF MENTAL ILLNESS OR INCAPACITY – where the defendant is charged with the murder of her two children – where the defendant was psychotic at the time of the alleged offences – whether the defendant was deprived of the capacity to know she ought not do the acts or whether she suffered only from a substantial impairment of that capacity

Criminal Code 1899 (Qld) s 27

1. WILSON J:  These are reasons for the decision I gave on 17 September 2004.

1. LMB has been charged with two counts of murder on 16 April 2003.  The victims were her son E, born on 19 February 1997, and her daughter S, born on 30 September 2001.

1. The defendant was born on 12 March 1978.  She is of Aboriginal descent.

1. It was common ground that at the time of the alleged offences she was psychotic.  The only issue was whether she was deprived of the capacity to know she ought not do the acts or whether she suffered only from a substantial impairment of that capacity.

1. The defendant came originally from Cloncurry.  At the time of the alleged offences she was residing in Townsville in a relationship with the father of the younger child.  The relationship was turbulent and worsening.  It was marked by arguments and violence.  Her partner, ST, was not in regular employment.  The household was often crowded with relatives.  They were short of money.

1. The defendant had a background of marijuana and alcohol abuse.  She had ceased regularly using cannabis in about January 2003 and by April of that year was using three or four cones a day.  The evidence was that on the day of the offences she used only one cone.

1. In the weeks leading up to the homicides the defendant developed a serious mental illness.  She suffered from delusions that harm would be done to her and the children by her partner ST and/or by Saddam Hussein.

1. In March 2003 she began thinking someone was entering her flat when she was not there.  She noticed the doors which she had closed and locked were opened.  She thought someone was in the roof, and that that person had got in through the manhole. Ultimately she thought that Saddam Hussein was living in the roof.

1. She thought ST was planning to kill her or sell her or her spirit.  She thought he was trying to poison her.  She was too scared to tell anyone because she thought that would make things worse.  She had been hearing voices and she thought family members were in danger and would be shot.

1. In early March the defendant had a conversation with her friend, MW.  She told her friend she felt trapped, that she had no life of her own, that her life revolved around ST and the children.  She said that she had been drinking a lot and that she felt she had no support from ST.

1. On 15 March the defendant had a further conversation with MW.  She said she was scared she could not look after the children; that everything was too hard.  She said she had not been drinking or using cannabis.

1. According to the friend the defendant was talking about hearing and seeing spirits inside her.  She could not tell the friend if they were good or bad spirits inside her.  She had never talked about that sort of thing before.

1. Apparently the defendant's partner, ST, came home with the children at some time and the children were playing around them.  The defendant leaned over and touched her friend. 

1. Her friend touched her and she whispered:  "I need to ask you something." 

The friend said:  "Yeah, ask me anything." 

The defendant said: "I want you to kill me and the kids." 

The friend said:  "No way.  Why?" 

The defendant said:  "It's hard." 

The friend said:  "What's hard?" 

The defendant said:  "Everything.  I'm not strong like you." 

The friend said:  "If you get that bad, look at them, they've never done anything."

Her friend pointed to the children who were playing around them.

1. They talked about relationships and the children.  The defendant asked rhetorically how she could get through it, how she could stop having those thoughts.  And she spoke again about spirits.  She said she just wanted herself and the children "to go to Dad" and pointed up into the sky, agreeing that she meant he was in heaven.  Again her friend told her that she could not do that.

1. On 3 April 2003 the defendant attended Dr Khurshit at the Townsville Aboriginal and Islander Health Service.  She told him she knew strange people came into the house when she was out, and that when she returned she could see their fingerprints on the wall.  She said her partner ST was the devil.

1. The doctor described her mental state as "anxious" and "smiley".  He concluded that she was psychotic and gave her a letter to attend the Emergency Department at the Townsville Hospital that day, but she did not do so.  She did attend a social worker or psychologist, who told her to ring her mother.

1. The week before the homicides the defendant was frightened her partner was going to harm her.  She said she was going to return to Cloncurry.  She spent money on new clothes for the children.  She said that her partner "pushed [her] to go to Centrelink".  She said she thought she saw Saddam Hussein in Centrelink, and that the girl there was going to "back her up".  She bought a train ticket to Cloncurry for herself and the children.

1. On the day of the offences the defendant was packing clothes.  She had an argument with ST and he went out.  She was in fear he would harm her and the children.  That was the day the troops left for Iraq.  She heard military planes overhead and thought Saddam Hussein had come to kill her and possibly members of her family.

1. Between about 3.30 and 4 p.m., while ST was out, the defendant stabbed the two children to death.  Then she turned the knife on herself, stabbing herself in the neck, side and chest. 

1. As a result the defendant was admitted to the Surgical Ward of the Townsville Hospital that day.  On 24 April 2003 she was transferred to the Acute Mental Health Unit and, on 27 April, to the Secure Mental Health Unit.  Subsequently, she had to have surgery twice.  While she was in the Mental Health Unit in Townsville Dr Allan was her treating psychiatrist.  On 18 December 2003 she was transferred to the High Secure Unit at The Park - Centre for Mental Health. 

1. The defendant has been examined also by Doctors McVie and Reddan. 

1. On the evidence it is clear that at the time of the homicides she was actively psychotic, and profoundly so.  She was suffering either major depression with psychotic features or schizophrenia.

1. A urine drug screen at 5.40 p.m. on the day of the offences produced a result "cannabinoids detected".  This was explored in cross-examination, but ultimately it was common ground that there was no evidence of voluntary intoxication with drugs or alcohol at the relevant time.

1. Doctors Allan, McVie and Reddan agreed that the defendant was deprived by her psychotic illness of the capacity to reason as to the moral rightness or wrongness of what she did - that is, the second cognitive capacity in section 27 of the Criminal Code (the capacity to know she ought not do the act).  Doctor Allan considered she was also deprived of volitional capacity to control her actions.

1. In submissions, counsel for the Director of Public Prosecutions relied on the defendant's conversations with MW and on the fact that she had stabbed the children in the absence of her partner or any other adult as evidence that she had retained some residual capacity to know that what she was doing was wrong.  He submitted that this was a case of impairment, albeit substantial impairment, but not one of deprivation of capacity.

1. I reject this submission.  The defendant was already psychotic when she spoke to MW.  Further, that her partner was going to inflict harm on her and the children was at the heart of her delusional system.  She was psychotic, out of touch with reality.  The prosecutor's thesis was one from the standpoint of a rational mind, and hers was not a rational mind.

1. I am satisfied, on the balance of probabilities, that she was suffering from unsoundness of mind at the time of the alleged offences. 

1. The defendant should be detained as a forensic patient in the High Security Program at The Park. 

1. The question of limited community treatment should be approached with great caution. 

1. These were the most serious of offences.  The defendant has had a very severe psychotic illness.  Her rehabilitation can be expected to take considerable time.  She remains on anti-psychotic and anti-depressant medication.  While she has no active psychotic beliefs or suicidal thoughts, her insight is limited.

1. In my assessment, her treatment needs and the need to protect the community are such that at this stage any leave should be only on the grounds of The Park and then only at the discretion of the authorised psychiatrist.

1. I approved two types of limited community treatment at the discretion of the authorised psychiatrist as follows:

(1)Escorted leave on the grounds of The Park - Centre for Mental Health on conditions:

(i)    That she remain under the escort of a health service staff member or members nominated by the authorised psychiatrist for the duration of the limited community treatment; and

(ii) That for the purposes of the limited community treatment she comply with the directions of the nominated staff member or members for its duration.

(2)Unescorted leave off the grounds of the High Security Unit at The Park but limited to the grounds of The Park on conditions:

(i)      That she remain within the grounds of The Park - Centre for Mental Health;

(ii)     That she return to the ward at the time specified by the authorised psychiatrist;

(iii)     That she abstain from using alcohol and illicit drugs and co-operate fully in random medical tests for those substances as required by the authorised psychiatrist;

(iv)     That each period of unescorted leave be for a maximum 2 hours duration;

(v)     That the periods of unescorted leave be limited in number to one period per day, totalling 5 periods per week.

1. I appreciate that the limited community treatment I have approved is more restrictive than she may have been receiving.  My approach is intended as a protective measure.  I recognise that the limited community treatment may be liberalised in due course by the Mental Health Review Tribunal.