Re LND

[2010] QMHC 41

MENTAL HEALTH COURT

CITATION:

Re LND [2010] QMHC 41

PARTIES:

REFERENCE BY THE LEGAL REPRESENTATIVE IN RESPECT OF LND

PROCEEDING NO:

0234 of 2009

DELIVERED ON:

23 July 2010

DELIVERED AT:

Brisbane

HEARING DATE:

7 & 8 June 2010

JUDGE:

Ann Lyons J

ASSISTING PSYCHIATRISTS:

Dr E N McVie
Dr F Varghese

FINDINGS AND ORDERS:

That at the time of the alleged offences the subject of the reference, the defendant was not suffering from unsoundness of mind as described in Schedule 2 of the Mental Health Act 2000 (Qld);1.    

2.    The defendant is fit for trial;

3.    That the proceedings against the defendant continue according to law.

CATCHWORDS:

MENTAL HEALTH – DECLARATION OR FINDING

OF MENTAL ILLNESS OR CAPACITY – where defendant charged with two counts of attempted murder and three counts of administering a stupefying drug in order to commit an indictable offence – where the offences were committed against her children – where the defendant made admissions to the police – where evidence that the defendant suffered a depressive illness – where evidence that the defendant suffered a personality disorder – whether the defendant was of unsound mind as defined in Schedule 2 of the Mental Health Act 2000 (Qld) – whether the defendant is fit for trial

Mental Health Act 2000 (Qld), Schedule 2
Criminal Code 1899 (Qld), s 27

COUNSEL:

J Briggs for the Defendant
D Lang for the Director of Mental Health

T Fuller 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)

ANN LYONS J:

1. The defendant, LND, is charged with two counts of attempted murder and three counts of administering a stupefying drug in order to commit an indictable offence.  All of the alleged offences occurred on 10 September 2008.  It is alleged that LND gave Phenergan to her three children, aged between five months and three years, and then tried to smother two of them.  In this reference by her legal representatives dated 23 September 2009, the court is asked to determine LND’s mental condition at the time those offences occurred.  

The circumstances of the offences

1. The defendant was living at [Queensland town] with three of her children, [A], three years of age, [B] who was 16 months of age, and [C] who was five months of age at the time of the offences.  The father of the two youngest children was IB.  He had been in a de facto relationship with the defendant for a number of years but they had separated. LND was 13 weeks pregnant at the time of the offences and it was possible that IB was the father of that child. 

1. At the time of the offences, the defendant’s sister had commenced a relationship with IB and they were living together. The defendant’s sister states that in June 2008 she was helping IB to care for the three children.  In the defendant’s sister’s view, the children were underweight and not healthy.  She considered that they got sick easily and did not appear to be looked after properly.  During the five weeks they cared for the children, LND began sending abusive text messages to her sister and IB because of their relationship.  A text was also sent by the defendant on 29 June 2008 stating she was going to drug the kids because she could not cope with them and that she was a pathetic excuse for a mother.  After five weeks IB and the defendant’s sister returned the children to the defendant. 

1. IB was concerned about LND’s mental condition and wanted her to get help.  Whilst he wanted the children to be with their mother, he was getting legal advice about whether conditions should be imposed with respect to her care of the children.  In August 2008 LND was in a car accident with the children.  A day after the car accident the youngest child, C, started having fits. 

1. On 10 September 2008 a series of text messages were sent from the defendant’s mobile to IB’s mobile. 

-     At 8.26 am a text was received which said, “[A] is an evil child”.  A further message was received shortly after that which said, “Get fuckd think what u want cause u aint neva guna c em again”. 

-     At 8.33 am another text was received which said, “Im guna hurt u da way u have hurt me”. 

-     At 10.04 am another text message was received which said, “I love u n always have n always will just plz stop hatin me im tryin2 to do what is rite 4 my babies”. 

-     At 10.08 am another text message arrived which said, “R these kids ur world what wuld u do if I take em away n u neva c em again what wuld u do how wuld u handle dat”. 

-     At 10.14 am, in response to a message from IB, she replied, “U wouldn’t have da guts my dear [IB] we leavin soon goodbye”. 

-     At 10.24 am a message was sent which said, “U have a life without them n ur happy u got sluts kids 2 raise u b rite wiout ur own n me harraassing u so go b happy”. 

-     At 10.25 am another message was sent, “we all love u IB”. 

1. LND also sent abusive messages that morning to her sister, including one which said, “We will c Slut im gunna hurt [IB] da best way I no how n dats wit da kids so fuck u go 2 hel”.

1. The statement of her former sister-in-law, JP, indicates that LND had been depressed for a number of years.  She stated, however, that to her knowledge the defendant had never previously abused her children.  JP spoke to LND the night before the incident and it was clear she was upset about not having anyone to help her with the children.  JP offered to help her and went and got some groceries, which she delivered to her at about 8.00 pm.  When JP gave the defendant the groceries, she was not concerned by her behaviour or anything she said. 

1. JP states that the next day, 10 September, at about 6.00 pm she got a text from LND which said, “We al ok I tried 2 suffocate the kids 2day just cant handle it anymore”.  This text message had also been sent to a number of the members of the family.  They alerted the police.

1. When police attended her home, LND outlined what had occurred.  Police checked the children and found them in good health.  She admitted that she gave all the children Phenergan to sedate them in preparation for suffocation.  She indicated to police that at about 12.30 to one o’clock in the afternoon, her baby son [C] was asleep and that she had wrapped a pillow over his head and held it for 10 to 15 minutes until his hands turned blue and he went limp.  When she removed the pillow she saw he was blue, his face was pale and he was not breathing.  When she shook him, however, he started to breathe.  She admitted that she had tried to suffocate the baby by placing a pillow over his head. 

1. She also admitted trying to suffocate her three year old son, [A], by holding the pillow over the child’s face for an extended period of time.  She stated he was:

“fighting me and kicking me.  He was like trying to pinch me and scratching me, he was trying to … and then all of a sudden he sort of like went limp and that was like when I sort of snapped out of it and took the pillow … threw the pillow off his face and his lips were bright blue and his face was really pale and he was like really limp so I picked him up and talked to him and cuddled him and sort of shook him a bit to wake him up.” 

1. She did not attempt to smother her other son, [B].  Some time later she gave each of the children a second dose of Phenergan.  The defendant denies, however, that there was any intention to harm the children linked with this second dosing but, rather, she wanted to give them a good night’s sleep.

1. The police reports indicate that a number of suicide notes were found in the house with indications that she had been suffering from depression.  The following handwritten notes were found:

“To [E], [F] Family& Friends
I am so sorry that I have had to do this. I just couldn’t handle this life anymore. This was my only way out, my only escape from all the hurt, the pain and the bullshit. Please don’t be mad or angry and most of all please don’t hate me.
I love you all so very much”

“[the defendant’s sister] and [IB] are not to receive (sic) or take anything out of my house, including photos,
I want the kids buried with me.
Any money I have goes to [E] and [F]. Everything I own gets sold and the money must go to […] to hold till they are older.”

1. The defendant made full and open admissions to police of other problems in her life and stated that she did not want her children to go through the problems she had in her life. 

1. On admission to the [Queensland town] Hospital on 11 September 2008, her mental state was noted as follows:

“Co-operative, speech normal, affect reactive, congruent with mood, communicating well, perception intact, normal thought form/flow. Thought content – has suicidal thoughts but has no plan. Judgment and insight poor. Cognative assessment – oriented to place/time/day”

1. LND was reviewed by Dr Chopra on the same date, who concluded she had a chronic adjustment disorder with depressed mood.  The discharge summary from the hospital stated that the principal diagnosis was “major depressive episode’ and “recurrent depressive disorder.”  On 24 September 2008 Dr Chopra wrote a letter which stated “[LND] is under my care for a depressive disorder and chronic adjustment problems.” The defendant also wrote a number of handwritten notes whilst in hospital dated 13, 14 and 15 September 2008 all expressing her remorse at what she had done. 

1. LND had been a patient of the [Coast] Integrated Mental Health Service since December 2002, which documented a history of post natal depression in 2000 following the birth of her second child, as well as a history of previous self harm.  Her medical history with her general practitioner also documented increasing contact in 2007 and 2008 due to depression.  

1. LND has now been interviewed by three psychiatrists, all of whom have provided reports to the court.  She was first examined by Dr Peter Fama, who gave a report to Legal Aid dated 13 August 2009.  She was then examined by Dr Velimir Kovacevic and his report is dated 24 December 2009.  The defendant was more recently examined by Dr Josephine Sundin and her report is dated 26 April 2010.

Evidence of Dr Peter Fama

1. Dr Fama gave evidence at the hearing and referred to his report of 13 August 2009.   Dr Fama noted that at the time of his report LND had six children; the three victims, as well as her new baby [D], who was five months old at the time of the interview.  He also noted that she had two older children, [E], who was 10 years old, and [F], who was nine years of age.  Dr Fama noted the offences and the fact that LND did not contest the essential facts as presented in the police material.  He noted that the defendant has subsequently written, “I don’t know what made me do what I did to them.  It was me but it wasn’t me.  I don’t know what I was thinking.  I wasn’t thinking.  It was like I snapped and lost control of my thoughts and my actions.  I’m so glad I snapped out of it before I did kill one of them.” 

1. Dr Fama noted a recorded history of contact with the [Coast] Integrated Mental Health Service.  She had seen the Service in December 2002 when she presented with a “possible dependent personality disorder” and a diagnosis of post natal depression in 2000 was recorded.  She presented again in May 2003, when it was considered that she did not have a major mental illness but that her unhappiness appeared to result from “social and interpersonal problems”.  On 22 July 2008 she again presented to the Service when she was six weeks pregnant but separated from her partner.  Her partner had told police she had threatened to kill the children.  She had recurrent ideas of suicide at that time.  Her follow up after July 2008, however, was erratic as she did not keep appointments in August and September 2008.  A phone contact was made with her by the Service on 3 September, a week before the offences, which records that there was an appropriate and lucid, open conversation and that the impression given was that she was “settled/stable”.

1. Dr Fama records that LND, on admission to hospital on 11 September 2008, shortly after the offences, was described as tearful, miserable and saying that she could not find happiness in anything.  She indicated that she had tried to smother the children “to stop them going through the pain she went through”.  She was distraught and remorseful on admission.  She was then reviewed by a psychiatrist on 12 September where the notes state, “Depression getting worse, 3 months.  Lack of interest, no happiness in anything.”

1. Dr Fama indicated that in the weeks leading up to the offences, LND had feelings of isolation and dejection.  She was habitually tired and found the demands of providing for the children very tiring.  She also felt angry and betrayed by her sister, having taken up a relationship with IB, her previous de facto partner.  He indicated that her recollection of her mental state on the day was one of being a hopeless mum, who did not deserve to be loved.  There was no indication that she took any drugs or alcohol. 

1. Dr Fama considered that LND had a recurrent depressive disorder and neurasthenic personality. He considered that at the time of the offences her primary condition was one of recurrent depressive disorder, with a current episode which was severe but without psychotic symptoms. He considered that at the time of the offences LND’s disorder was such that it constituted a mental disease within the usual meaning of s 27 of the Criminal Code 1899 (Qld) (the Code).  Dr Fama concluded:

“That disease did not deprive her of the capacity to understand what she was doing i.e. attempting to kill her children by means of sedation and suffocation.

Nor, I believe, did it deprive her of the capacity to control her actions from which she in fact desisted, and then confessed to what she had done.  I see her control as impaired not abolished.

However, [LND] was in my view deprived of the capacity to know that she ought not do the acts.  She believed that what she was doing was right and only way to protect the children from future pain and suffering.  ‘I did not want them growing up having the same life I did.’”

1. Dr Fama stated that:

“Now, [LND] sees her actions as terrible and cannot forgive herself for what at the time was in fact distorted thinking and action in a setting of marked mental illness.

I support therefore, for all counts a defence of unsoundness of mind under s 27 of the Criminal Code”.

Report of Dr Velimir Kovacevic

1. Dr Kovacevic, after reviewing the police material and statements of witnesses, set out the background psychiatric material which related to LND.  He stated she had a history of sexual molestation as a teenager, as well as a history of violent and abusive intimate relationships.  She did not have good relationships with her six siblings and she witnessed a lot of domestic violence as a child.  She went to school to Grade 12, but had a poor employment history.  He also recorded that her first contact with Mental Health Services was after she gave birth to her second child at the age of 20, when she had post natal depression.  He also reported non-compliance with treatment and psychiatric follow-up, as well as a history of deliberate self harm by overdosing and self cutting. 

1. In her interview with Dr Kovacevic, LND admitted to “sudden mood swings, occasional suicidal ideas, impulsivity and fears of abandonment.  She denied ever experiencing psychotic symptoms.” 

1. Dr Kovacevic’s view was that:

“[LND] suffered from an Adjustment Disorder with Depressed Mood.  Principle manifestations of this disorder include emotional and behavioural symptoms in response to an identifiable stressor(s) occurring within three months of the onset of the stressor(s).  The symptoms are evidenced by marked distress and significant impairment in social or occupational functioning.  In most cases the prognosis is generally favourable and patients return to their previous level of functioning usually within three months following the resolution of the original stressor(s).  The disorder is often associated with a range of depressive and anxiety symptoms insufficient to meet the full set of DSM-IV criteria for an anxiety disorder or a major depressive disorder.

In my experience, adjustment disorder would not usually be considered as a ‘mental disease’ for legal purposes.

I based my diagnosis of adjustment disorder with depressed mood on [LND]’s report of her symptoms and functioning at the time of her alleged offence, the collateral history available and the contemporaneous psychiatric assessment conducted at the [Queensland town] Hospital.  I note that the psychiatric assessment conducted immediately following [LND]’s arrest also concluded that she met criteria for the diagnosis of adjustment disorder.  I will summarize most salient findings from that initial examination:

1.She was described as ‘not particularly depressed’.

2.Her affect was described as ‘reactive’.

3.She settled well into the ward environment and it was noted that she ‘browsed magazines’ soon after she was admitted.

4.Her self-care was described as ‘adequate’.

5.There was no evidence of significant psychomotor abnormalities.

6.There was no evidence of any formal thought disorder, perceptual abnormalities or any other psychotic symptomatology.

7.She was found to be ‘communicating well’ with the hospital staff.

8.She was able to give good account of what had happened and to explain motivational factors behind her actions.

According to the recent psychological assessment, [LND] also exhibits a number of personality features consistent with the diagnosis of borderline personality disorder, which are of relevance in relation to her alleged offending.  They include the following:

1.Rapid mood changes and poor regulation to affect.

2.Difficulties controlling anger and propensity for angry outbursts.

3.Intolerance of rejection.

4.Impulsivity.

5.Propensity for self destructive acts.

6.Suicidal tendencies.

7.Low self-regard.

8.Fear of abandonment and difficulties relinquishing intimate relationships.

Although this is not the conclusion that I arrived at, in anticipation of the possibility that the Mental Health Court might accept that [LND]  suffered from major depressive disorder and that she for that reason met the legal criteria for ‘mental disease’, I will next discuss the issue of whether [LND] was so impaired by her mental disease at the time of the alleged acts with which she is charged, so that she was completely deprived of the capacity to understand what she was doing, or the capacity to understand that what she was doing was wrong.

In terms of the first capacity, based on her statements made immediately following the alleged crime and the full description of the incident given to the police during the initial interview, in my opinion [LND] was not deprived of the capacity to understand what she was doing, having interpreted the legal standard as referring to the understanding of a physical nature of the acts and the understanding of their harmfulness.  I believe that [LND] fully understood that she was assaulting her children and that such actions would have had harmful consequences for her victims.

I reached the similar conclusion with regards to the second capacity, namely the capacity to know that she ought not to do the acts in question.  In my opinion she was not deprived of the second capacity based on the following line of reasoning:

1.[LND] made a number of contemporaneous statements acknowledging the wrongfulness of her conduct.

2.She repeatedly stated that she did the alleged acts out of frustration and in order to hurt her partner, providing the motivational context for the alleged crimes.

3.There have been previous incidents of making threats to harm her children, establishing a pattern of behavior.

4.There was no evidence of any delusions associated with her actions, she described no perceptual abnormalities and her thinking and judgment were not affected by a psychotic process.

5.On both occasions she aborted her attempts to smother her children, unable to continue in the face of their resistance and her own realization of the wrongfulness of her actions.

6.[LND] failed to inform anybody, including either police or the ambulance, for a number of hours.  She reported that she was aware of serious legal consequences that she might suffer, including the arrest and imprisonment, and was ambivalent and at the same time under intense internal pressure to do ‘the right thing’.  Such a delay and ambivalence about reporting the crime can also be considered as evidence of the knowledge of wrongfulness of her actions.

7.[LND] expressed intense guilt and remorse immediately following her arrest.

In terms of the capacity to control her actions, there is no evidence supporting the deprivation of this capacity.  She was not driven by a psychotic disorder of mind and she demonstrated the capacity to exercise control over her actions by terminating the assaults.”

1. Dr Kovacevic agreed that the end of episode summary of the [Coast] Mental Health Service dated 14 October 2008 made a diagnosis of major depressive episodes, recurrent depressive disorder and chronic adjustment problems.  Dr Kovacevic however concluded that he did not consider that the defendant was of unsound mind at the time she committed the alleged offences.  He considered that the incidents occurred in the context of multiple stressors and a reaction to her personal circumstances and adverse situational factors.  She felt depressed and angry and the constellation of those maladaptive personality traits, depressed mood and significant psychosocial stressors led to a situational crisis and the breakdown of her coping resources, which led to what appeared to be an aborted attempt at murder/suicide. 

1. Dr Kovacevic considered there were a number of factors relevant for an understanding of her emotional state.  She felt rejected by her ex-partner and betrayed by her sister.  She felt a strong desire to hurt her ex-partner and felt angry and vengeful towards both him and her sister.  He stated that she was frustrated and not coping well with child care and had little external support to modulate her level of stress.  Dr Kovacevic considered that all of those external pressures in combination with her internal personal vulnerabilities contributed towards the offences. 

1. Dr Kovacevic considered the defendant was fit to plead and there were no issues of intentional intoxication or a dispute of facts.

The report of Dr Josephine Sundin

1. Dr Sundin also noted the facts of the alleged offences, as well as LND’s psychiatric history.  Dr Sundin stated that the defendant had indicated that as she was pregnant at the time of the offences, she was suffering from increasing physical exhaustion and that as a result of the separation from IB, she was depressed, tearful and anxious and very worried about how she would cope as a single mother.  She was feeling abandoned and alone.  Her appetite had decreased and she was clearly angry, sad, depressed and anxious.  She also was very sleep disturbed and this was caused mainly by the need to get up to three small children during the night.  She had only been averaging three to five hours sleep a night. 

1. Dr Sundin stated:

“In my opinion, [LND] presents a history consistent with a woman suffering from an Adjustment Disorder with Mixed Anxiety and Depressed Mood in the setting of a Borderline Personality Disorder (DSM-IVTR criteria) at the time of the alleged offences.  Her symptomatology had onset directly in response to an identifiable stressor and had occurred within three months of the onset of that stressor.  The symptoms were evidenced by marked distress and significant impairment in social and/or occupational functioning.  The symptomatology was not, in my opinion, of sufficient severity to meet the full set of DSM-IV-TR criteria for an Anxiety Disorder or Major Depressive Disorder.

Specifically at interview, [LND] reported that her sleep was disturbed in response to her need to attend to her children and her anxious worries with regard to her de facto separation.  Her appetite was impaired.  At the same time, however, she was fully attending to all domestic chores, fully attending to all needs of the children, maintaining the household despite mild to moderate neurovegetative dysfunction, some of which may well have been attributable to the first trimester of her pregnancy.  She did not describe any significant psychomotor disturbance.  She was not experiencing any perceptual disturbances or phenomena that one would associate with a melancholic mental state or psychotic phenomenology.  She was communicating briskly with family members and her ex-partner.

Therefore, while the differential diagnosis to be considered would be a Major Depressive Disorder moderate severity, absent psychotic features; I do not support this diagnosis.

Longitudinally, she gives a clear history of a pervasive pattern of instability of interpersonal relationships and marked impulsivity evident by early childhood.  She reports frantic efforts to avoid real or imagined abandonment, has a persistently unstable sense of self, has a history of recurrent suicidal behaviour, reports affective instability, chronic feelings of emptiness and intense anger and difficulty controlling her anger, particularly at times of any perceived abandonment.”

1. Dr Sundin concluded that a diagnosis of Adjustment Disorder with Mixed Anxiety and Depressed Mood in the setting of a person with a Borderline Personality Disorder is insufficient to meet the state of mental disease or natural mental infirmity as required in the legal definition of unsoundness of mind. 

1. Dr Sundin also considered the question as to whether LND was deprived of one of the relevant capacities.  In her view the defendant’s descriptions indicated that she understood what she was doing particularly as she described a controlled set of actions.  She also considered that LND was aware that she should not smother two of her sons.  Dr Sundin concluded that the defendant was not, therefore, deprived of any of the capacities in relation to the charges.  She also considered LND was fit to stand trial and instruct counsel.

The views of the Assisting Psychiatrists

Dr Varghese

1. Dr Varghese stated that the defendant’s was an unusual and complex case.

“… on the surface it presents as a case of attempted murder/suicide, although there was no actual suicide attempt and moreover the account of the attempted murder comes entirely from the defendant’s admissions to the police.  However there’s no dispute of fact.”[1]

[1]Transcript Day 2, p 2 l 26.

1. In relation to unsoundness of mind and whether LND had a disease of the mind, Dr Varghese noted that two of the psychiatrists who had evaluated her diagnosed adjustment disorder with depressed mood.  Dr Varghese stated:[2]

“If she had adjustment disorder then this would not qualify as a mental disease.  Essentially adjustment disorder is a reaction of a normal person to extraordinary adversity or an abnormal person to ordinary adversity, although more accurately the former.  Strictly speaking, if the reaction is considered to be a characteristic reaction of the abnormal person, the diagnosis ought not to be made.” 

[2]Transcript Day 2, p 2 l 39.

1. He went on to note the agreement between three of the psychiatrists that a disorder of personality exists in LND.  Dr Varghese stated that the labels used by the various reporters for this diagnosis were different but that the characteristics were constant.  These included “… dependence, fear of being alone, a poorly developed sense of identity and self, a difficulty tolerating uncomfortable effect, difficulty modulating effect and these in turn leading to chronic low self-esteem and a pattern of chaotic but intense relationships”.[3] 

   [3]Transcript Day 2, p 2 l 50.

1. Dr Varghese noted the challenge of psychiatric evaluation in assessing a depressive illness alongside a disorder of personality and the challenge “… to tease out whether the depressive symptoms are manifestations of illness or a reflection of personality”.  He continued:

“On this matter, while Dr Sundin is correct in her statement that melancholic depression, previously called endogenous depression, is not more common in personality disorder, this is certainly not the case with non-melancholic major depression.  In other words people with personality disorder, particularly of the configuration in the defendant, are more prone to major depression.”

1. However, Dr Varghese indicated that a diagnosis should be made before assessing issues of causality.  After taking Dr Fama’s diagnosis of a major depression into account as well as the concessions made by both Dr Kovacevic and Dr Sundin, Dr Varghese considered that a diagnosis of major depression was supported by the defendant’s longitudinal history.

1. Dr Varghese added that even though the defendant may not have had a “full hand of melancholic symptoms” or “so-called biological symptoms” of depression, she had enough symptoms of depression to allow a diagnosis of major depression.  Dr Varghese indicated that that diagnosis was supported by LND’s pervasive low mood and hedonia, low self-esteem and sense of hopelessness.  He further stated that:

“Using conventional diagnosis, a diagnosis of adjustment disorder ought not be made if the individual fulfils the criteria for another Axis 1 stress-related disorder.  In this case, I think the criteria are fulfilled.  Admittedly, the DSM4 and, indeed, the ICD criteria for major depression are quite broad and, moreover, the criteria have only got to be present for two weeks and there’s considerable debate within psychiatry currently as to whether major depression represents a single disorder or several disorders ranging from melancholic endogenous states where there can be no doubt there is an illness present to states that are indistinguishable from normal variations in human emotions such as bereavement.”[4]

[4]Trancript Day 2, p 4 l 10.

1. Dr Varghese opined, however, that the diagnosis of major depression of itself cannot inform whether there could be mental disease to the extent of deprivation of capacity.  He thought much depended on the severity of the depression. 

1. Dr Varghese noted that, while Dr Fama diagnosed severe depression, on questioning, he was unable to defend this proposition.  He also noted Dr Fama’s opinion that:

“… the depressed mood, which is a component of major depression criteria, and other cognitive components of major depression were severely affected but [Dr Fama] agreed that, using conventional measures of severity employed by psychiatrists, major depression would not have been classified as severe.”

1. Dr Varghese stated that LND’s overall functioning was not consistent with severe depression nor were the observations of the clinicians who assessed her subsequently in hospital.  Dr Varghese conceded that it was possible the depressive state was positively influenced by antidepressants, but he thought that required a high degree of inference.  Overall, while Dr Varghese accepted that the clinical evidence indicated a major depression and that deprivation of capacity does not necessarily require the presence of frank psychotic symptoms and that the cognitive distortions of depression could bring about deprivation in some instances, Dr Varghese thought it unlikely the defendant suffered from severe depression such that could lead to deprivation of capacity.

1. Dr Varghese then considered whether a moderate level of depression in LND, along with a significant personality disorder, could lead to deprivation of capacity and a knowledge of the wrongness of the act.  Dr Varghese indicated that such a state could arise in a situation where major depression occurred in abnormal personality.  Dr Varghese opined that the cognitive distortions of major depression would manifest more seriously in some personalities.  He added:

“It’s well known, for instance, that in obsessional personalities the obsessionality will increase with major depression and the same can be said of dependent personalities or histrionic personalities.

Thus the long-term distortions of cognition in somebody with personality disorder could be enhanced by the presence of depression, even of a moderate stage and, moreover, most psychiatrists would accept that in borderline personality there can be what are called micro pseudo psychotic episodes in response to depressed mood.”

1. However, Dr Varghese indicated that in LND’s case it was difficult for him to conclude a deprivation of capacity without “a high degree of inference beyond the clinical data available”.

1. Dr Varghese noted that counsel for the defendant submitted that the harm to the child [A], who was not the child of her ex-partner, does not fit with the hypothesis of seeking to punish her ex partner.  However, Dr Varghese felt that that did not exclude the possibility her actions were in some part a statement to her family, from whom she was estranged, as to how she had been treated.  Moreover, Dr Varghese felt it did not exclude a differential attachment to the children in keeping with the personality configuration of idealisation and devaluation of relationships.  Therefore, Dr Varghese felt that the defendant’s statement that the child [A] was evil in one of the text messages may be relevant.

1. Dr Varghese concluded that he could not determine that LND was deprived of the capacity to know the wrongfulness of the act without a high degree of inference as to the severity of depression and the interaction of depression with personality.  Dr Varghese thought it probable that the defendant was substantially impaired at the relevant time but not to the extent that amounted to absence of capacity.

1. Dr Varghese considered that if LND was found of unsound mind, he would recommend a forensic order with immediate community treatment, given her current condition.

Dr McVie

1. Dr McVie agreed with Dr Varghese, that LND presented a very complicated case which required a lot of inference along with possibilities and probabilities.  Dr McVie considered the defendant’s background and noted that she had a severe prejudicial childhood which involved severely dysfunctional family relationships which she replicated in her adult life.  Dr McVie also noted LND’s family pathology, which involved her brother’s suiciding, along with a documented history of cannabis and alcohol abuse, self-harming behaviour and suicidal ideation.

1. Dr McVie observed LND’s clear history of depressive symptoms which occurred for at least eight years prior to the offence.  She indicated that the defendant’s depressive symptoms could possibly be understood by considering her background but opined that there was also clear evidence of a depressive episode, possibly a post natal depression after the birth of her first child and a second episode which was diagnosed and treated by a general practitioner in 2004.  Dr McVie noted that the defendant appeared to have had ongoing treatment with antidepressants over the four years leading up to the offence and that at the time of the offence and for the preceding 12 months, she was on 100 milligrams of Zoloft daily prescribed by her GP.

1. Dr McVie considered other possibilities for depression at the time of the offences which could have included that LND was again post partum; that she had a five month old child; and the multiple stresses in her life and particularly the loss of her ex-partner to her sister.  Dr McVie considered there were clear symptoms of depression in the lead up to the offence as indicated by the consistent reports which described insomnia, ruminating over her problems, her appetite, weight loss, lack of energy and helplessness.

1. Although Dr McVie noted Dr Sundin’s view of other possible causes for the depressive symptoms, she considered that the defendant had a marked vulnerability to depression, and the symptom cluster that was present would be diagnosable as a major depressive disorder.  Dr McVie continued:

“Major depression does occur in persons with other personality disorders and is often misattributed to moveability associated with personality disorder, particularly borderline personality disorder.  My advice is that Dr Fama was correct to make the diagnosis of recurrent depressive disorder, which is an ICD10 classification, which equates to the DSM major depressive disorder.”

1. Dr McVie accepted that depressive symptoms and the degree of negative thinking converging on psychosis can fluctuate, but noted that the [Coast] Mental Health Service did not diagnose a severe illness nor any psychotic features.  Dr McVie noted that at the [Coast] Service LND was initially treated with a very small increase in the dose of her Zoloft, but that she subsequently required 250 milligrams of Zoloft as well as intermittent Zyprexa to manage her symptoms, which Dr McVie considered a high dose.  She also noted that Dr Chopra reported her to have a recurrent depressive disorder in his letter of the 24th of September.

1. Therefore, Dr McVie considered that on the day of the offences the defendant presented with a background of personality dysfunction, a partially treated depressive disorder probably of moderate severity, as well as real stressor-s involving the care of her three young children, and frustration and anger at her sister now being with her ex-partner.  Dr McVie noted there was no evidence of substance abuse or intoxication at the time

1. Dr McVie considered that LND’s repeated attempted smothering and then reviving of the child possibly reflected the ambivalence that is often seen in psychotic persons who are struggling with ego dystonic delusional beliefs.  However, Dr McVie reiterated that in the present case there is no definite evidence of psychosis.

1. Dr McVie stated that partially treated major depression often results in suicide, as the partial treatment allows action based on extreme negative self-cognitions and this occurs in the absence of diagnosed psychosis.  However, Dr McVie also stated that the killing of others in depressive disorders is far less common.  She also considered Dr Fama’s evidence that the defendant suffered loss of self-esteem, hopelessness and what he described as depressive grandiosity with almost delusional thinking in that she thought the children would be better off dead, which appeared to be the thought that motivated her at the time.

1. In relation to the defendant’s capacity to know she ought not do the act, Dr McVie recounted the reporting doctors’ evidence as follows:

“Doctors Kovacevic and Sundin discounted mental disease by their primary diagnosis of adjustment disorder. Dr Sundin in oral evidence did say that a combination of borderline personality disorder with major depression may be sufficient to have absolute deprivation of capacity. Dr Kovacevic also discounted deprivation of capacity because of her reporting thinking that she knew what she’d done was wrong, but this thinking was reported after the events.”

1. Dr McVie concluded that at the actual time of the attempted smothering, the defendant’s reasoning was driven by her depressive cognitions, not by anger or revenge against her ex-partner.  Dr McVie ultimately considered that at the time the defendant was deprived of the capacity to know she ought not do the act due to her depression.  In Dr McVie’s opinion, LND believed she was doing the right thing for her children by sparing them from the life stress that she had suffered.  Dr McVie considered that the defendant’s subsequent reporting and frankness during the police interview supports a finding of unsoundness and a depressive state and goes against her actions being in response to anger, frustration or motivated by revenge.

“While there is some uncertainty, on balance of probability I would recommend the Court accept the final opinions of Dr Fama which are based on an appropriate diagnosis of recurrent depressive disorder or major depression, and he too also considered the background of her personality dysfunction.”

1. While Dr McVie had concerns that Dr Fama’s opinion on deprivation of capacity was based, to some extent, on his consideration that the depression was severe, Dr McVie considered the totality of evidence seemed to show the depression was at least moderate in severity.  Dr McVie indicated that in the event the defendant’s depression itself was not considered severe enough to cause deprivation of capacity, she considered that the major depression in combination with the defendant’s underlying personality disorder could be sufficient to deprive her of the capacity to know she ought not do the act having regard to the nature of her cognitions at the relevant time.

1. Dr McVie considered that all reporters indicated the defendant was fit for trial and that if a finding of unsoundness of mind was made then a forensic order was indicated.  In her view a community-based limited community treatment would be sufficient.

SUBMISSIONS

Counsel for the defendant

1. Counsel for LND, Mr Briggs, submitted she suffered from a depressive disorder of some character, expressed in different ways and subject to different diagnoses for a number of years before the offences.  He argued that her unhappiness, isolation and hopelessness became increasingly intense in the months and weeks before the offences occurred and that the collateral material supports a finding that her behaviour was driven by depression.

1. Mr Briggs also argued that the depression was severe enough to deprive the defendant of capacity at the relevant time because it fell in the post partum period and because of the particular personal circumstances surrounding the events.  He submitted that LND’s depressed mood at the time of the offences was amplified because of the particular connection between the cause of her personality disorder and the circumstances that occurred in the months leading up to September 2008. 

1. Counsel submitted that the defendant was particularly distressed by her sister’s betrayal and argued that this created a connection between the child and the betrayal which appeared to underpin her personality disorder, and latent depression.  He continued:

“That connection amplified the intensity of that recurrent depression at the relevant time to a level beyond what she had felt at earlier times.  And it caused a deprivation of capacity on this occasion.  Particularly, unusual circumstances occurred this time, which made the depression more severe than last time.”

1. Counsel also emphasised that during the record of interview she repeatedly invoked her “whole life” as the reason for what she did and not a specific event shortly before the offences in question.  She said, “I didn’t want them to have the life that I have had”.

1. Counsel argued that the particular connection between LND’s history of betrayal and the children which is peculiar to the case allows a conclusion to be drawn that the depression was severe enough to make a finding of deprivation of capacity.

Counsel for the Director of Public Prosecutions

1. Mr Fuller referred to the evidence before the court, including the defendant’s initial admission to hospital and the diagnosis of an adjustment disorder.  Counsel noted the issues arising from Dr Chopra’s letter and the discharge summary.  He placed significance on the report of Dr Kovacevic which noted excerpts from the admission notes, including the statement the day after the offences that “although she was teary at times, she was withdrawn and rested, browsed magazines, tolerated a good dietary intake, and was to be reviewed by the consultant psychiatrist Dr Chopra”.

1. Counsel further noted that in the record of interview with police, LND vacillates between having given the children the Phenergan in order to commit the offences or, alternatively, to give herself some respite, but that this is contradictory to the psychiatrist’s note of 11 September which states[5]:

“No perceptual disturbances, effect was mildly depression but she was adequately kempt.  Disturbed sleep due to difficulty with looking after the children.  Very unhappy about the life situation.  She said she tried to suffocate the children out of frustration because she’d received a message that she was a bad mother.”

[5]Transcript Day 1 p 96 l 60.

1. Counsel stated that in the defendant’s report to Dr Sundin she recounts that she did not in fact give the drug to the children for the purpose of committing the offences, but instead to give herself a break so that she could cope.  Counsel submits that LND acting out of anger and frustration is consistent with statements to Dr Chopra and the evidence of the SMS messages between her and her ex-partner.  Counsel noted that she told Dr Sundin it was against the backdrop of anger at her sister and frustration at coping with three children that she committed the offences.

1. In relation to the defendant’s statement to police, counsel submits that she was able to describe her actual physical actions, but noted Dr Fama’s observation that she was unable to articulate the reasoning behind her actions.  Mr Fuller noted that the defendant’s counsel and Dr Fama placed strength on her statement in the record of interview that she was bringing up all of her life experience as an explanation. However, Mr Fuller also noted that when specifically asked at the conclusion of the interview why she harmed the children, the defendant does not claim that it was in an effort to assist the children in avoiding going through what she went through in her own life.  Counsel argues that LND’s letters, statements to police and to Dr Sundin are evidence of her self-centred nature about the offences.

1. Counsel submitted that if a diagnosis of a depressive order was found, then there is an issue as to the severity of it.  Counsel noted the distinction between the evidence of Dr Sundin and Dr Fama.  He stated[6]:

“When pressed by Dr Varghese, Dr Fama stated that it was the self-esteem issue that he saw as the factor that made this a severe circumstance such that it fell within the criteria that he had laid down or referred to.  Dr Sundin, by contrast, saw the self-esteem issue as not being part of the major disorder but having been a life long issue, complicated by her personality disorder, and Dr Sundin went through great detail of her history with respect to that, that the effects again when questioned by Dr Varghese about how that manifested itself in her life, that that's consistent with the histories that she provided to each of the three doctors.”

[6]Transcript Day 1 p 98 l 30.

1. Mr Fuller further submitted that it was not a situation where a distant event had taken place which then had a stressor effect on her at the relevant time, but rather LND was in direct contact with her ex-partner at the time of the offences, which could be viewed as an acute circumstance which she reacted to and which therefore supports a finding of an adjustment disorder.

1. In relation to whether the defendant knew she ought not do the act, Mr Fuller points to her actions after the events.  He submits that LND ceasing the acts themselves and her delay in making contact with anyone indicates that she knew there would be consequences to her actions.  Counsel also argues that her letters of 13 and 15 September 2008 in which she struggles to come to terms with why she did the actions contain an implicit acknowledgement that she ought not to have done the acts.

1. Mr Fuller also submitted that although the police record of interview was described as candid, his submission was that it was candid as the defendant attempted to distance herself from the notion that the Phenergan was given to the children for the purpose of smothering them and she was reluctant to give reasons for her actions but, instead, was fascinated with her own circumstances.

1. In order to determine how the defendant was thinking at the time, Mr Fuller highlighted the fact that she failed to acknowledge that the text messages were a reference to her intention to injure the children in an attempt to hurt her ex-partner.  Counsel also referred to the note LND wrote which indicated she wanted the children buried with her and which also directed who was not to inherit her property.

1. Mr Fuller concluded that even if a finding of a major depressive illness was made, her actions were calculated, during, before and after the event.  He argues there is clear evidence that she was driven by some anger and that whilst her capacity may have been impaired due to the combination of her personality disorder and any underlying depression, the defendant was not deprived of her capacity.

CONCLUSIONS

1. It is clear that in the present case this court must determine whether the defendant was of “unsound mind” at the time of the alleged offences, in accordance with Schedule 2 of the Mental Health Act 2000 (Qld) (the Act) which defines that term as follows:

“‘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 Code 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 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.”

1. In the present case, it is clear that there is no issue of dispute of fact and there is no issue in relation to intoxication. 

1. The ultimate issues which therefore need to be determined are whether the defendant, LND, was suffering from a disease of the mind and, if so, whether at the time of doing the act she was deprived of one of the relevant capacities as described in s 27 of the Code.

Was LND suffering from a mental disease?

1. I note that Dr Sundin concluded that a diagnosis of Adjustment Disorder with Mixed Anxiety and Depressed Mood in the setting of a person with a Borderline Personality Disorder was insufficient to meet the state of mental disease or natural mental infirmity as required in the legal definition of unsoundness of mind.  Dr Kovacevic’s view was also that the defendant’s diagnosis was one of adjustment disorder with depressed mood and that an adjustment disorder would not usually be considered as a “mental disease” for legal purposes.

1. Having considered all of the evidence, however, I am satisfied that the evidence supports a finding that at the time that LND committed the alleged offences she was suffering from a recurrent depressive disorder which is a mental disease within the meaning of the Act.  In coming to this view, I have taken into account, in particular, the contemporaneous psychiatric assessment conducted at the [Queensland town] Hospital, her history with the [Coast] Mental Health Service and her attendances at the [Queensland town] Medical Centre in 2007 and 2008. 

1. An attendance at that Clinic in May 2003 resulted in a written reference to Community Mental Health dated 20 May 2003, which referred to a history of post natal depression and continuing depression “on and off”.  A number of medical attendances on Dr Sandra Zeeman at the Medical Centre are recorded from July 2007.  An attendance on 30 July 2007 noted “patient delivered 13 weeks ago - now pregnant again”.  The history which was taken noted a previous severe episode of post natal depression and that she was not willing to cease her Zoloft medication during her pregnancy.  She failed to attend her appointments on 7 and 9 August, but attended on 28 August, 18 September and 27 September 2007.  The notes of the attendance on 16 October 2007 record “depression well controlled on Luvox”.  There were further attendances on 14 November 2007 and then on 8 February 2008.  On 12 February 2008 her medication was changed from Luvox to Zoloft, with a note recording “ongoing depression” and the need for a mental health plan to “see psch due to depression”.  The attendance on 14 February 2008 recorded “has just increased Zoloft to 150mg stress with partner quitting his job and no money for food”.

1. That evidence clearly indicates LND had treatment with antidepressant medication in the four years prior to the alleged offences and that six months prior to the offences her Zoloft medication had been increased.  I consider that the longitudinal history supports a finding of a recurrent depression.  As Dr McVie concluded in her advice, the evidence established that there were clear symptoms of depression in the lead up to the offence.  This is shown by the consistent notes of Dr Zeeman, as well as reports from the [Coast] Service and her family which described insomnia, ruminating over her problems, weight loss, lack of energy and helplessness.

1. I agree with Dr Varghese, that the reported history indicates at least two episodes of post natal depression.  I also note his view that post natal depression predisposes to major depression, even in the absence of a post partum period.  Significantly, at the time of the events, the defendant was five months post partum and in the risk period for depression.  She was also on anti-depressant medication, despite being pregnant.

1. I accept Dr Varghese’s view that there were distinct episodes of major depression which were grafted onto chronic dysthymia, “thus she can be said to have so called double depression … this is occurring in the context of personality disorder”.

1. Dr Fama considered that the defendant had a recurrent depressive disorder and neurasthenic personality.  He considered that at the time of the offences her primary condition was one of recurrent depressive disorder, with a current episode which was severe but without psychotic symptoms.  Dr McVie also endorsed this view and considered that Dr Fama was correct to “make the diagnosis of a recurrent depressive disorder, which is an ICD10 classification, which equates to the DSM major depressive disorder”.

1. I am accordingly satisfied that the defendant was suffering from major depressive disorder, which is a mental disease, at the time of the alleged offences.

1. The critical issue, however, is whether the mental disease was such as to deprive her of one of the relevant capacities.

Was LND deprived of one of the relevant capacities at the time of the offences?

1. None of the psychiatrists consider that the defendant was deprived of the capacity to understand what she was doing.  Whilst she was suffering from a major depressive disorder, I do not consider that the evidence supports a finding of severe depression.   It is clear that at the time of the alleged offences LND was attending to her home and her children.  As Dr Varghese notes, her overall functioning at the time was not consistent with severe depression.  I also agree that the evidence indicates that given LND’s behaviours and her statements made immediately following the events, which included a full description of the incident given to the police during the initial interview, she was not deprived of the capacity to understand what she was doing.  The evidence indicates a controlled set of actions, particularly during the extended period she was sending the text messages.  It is clear from her statements to police that she understood that she was assaulting her children and what the consequences were.

1. In terms of the capacity to control her actions, similarly there is no evidence supporting the deprivation of this capacity and none of the psychiatrists consider she was deprived of this capacity.  The defendant was not driven by a psychotic disorder of mind and she clearly demonstrated the capacity to exercise control over her actions by terminating the assaults.

1. Turning then to the question as to whether the defendant was deprived of the capacity to know she ought not do the acts.  Dr Fama and Dr McVie have concluded that she was deprived of that capacity, essentially because she believed that what she was doing was the right and only way to protect the children from future pain and suffering.  Counsel for the defendant submitted that her depressed mood at the time of the offences was amplified because of the particular connection between the cause of her personality disorder and the circumstances that occurred in September and the months shortly before 2008.  He argued that that connection amplified the intensity of that recurrent depression at the relevant time to a level beyond what she had felt at earlier times and that it caused a deprivation of capacity on this occasion.

1. In my view, however, I am not satisfied there is sufficient evidence that the defendant lacked the capacity to know that she ought not to do the acts in question.  Significantly, she desisted in her efforts to smother the two children, particularly when they resisted.  The defendant then failed to inform anybody for a number of hours, which in my view indicates that she knew what she was doing was wrong.  She made a number of statements shortly after her actions in which she acknowledged the wrongfulness of her conduct.  She expressed remorse and guilt both in her text message to her sister-in-law, as well as to police immediately following her arrest.  In my view, those actions are telling actions in terms of her capacity to know that the act was wrong. 

1. The notes of the psychiatric attendance with Dr Chopra on 11 September indicate that she tried to suffocate the children out of frustration because she had received a message that she was a bad mother.  On other occasions she acknowledged that she did the alleged acts in order to hurt her ex-partner.  She had also made threats to him on previous occasions that she would harm her children.  The notes she left in the house support a conclusion that she was angry with her sister and ex-partner.  Her letters from hospital within days of the events clearly acknowledge she knew what she was doing was wrong.  She was clearly very remorseful in those letters. 

1. There were no psychotic symptoms and no indications of any delusions associated with her actions or other perceptual abnormalities.  Her thinking was not, therefore, affected by a psychotic process.  On admission to hospital her perception was recorded as being intact and it was noted that she had normal thought flow.  In my view, whilst the defendant may have been impaired in relation to her capacity to understand what she was doing was wrong, given her depressive condition, I do not consider that her depressive condition was of such a nature that it actually deprived her of that capacity.  Even taking into account the combination of her personality functioning and her depressive disorder, I do not consider that there was a total deprivation of the relevant capacity at the time.

1. Accordingly, at the time of the alleged offences the subject of the reference, the defendant was not suffering from unsoundness of mind as described in Schedule 2 of the Mental Health Act 2000 (Qld).

1. All psychiatrists consider that the defendant is fit for trial.

1. The proceedings against the defendant should continue according to law.