Re Mach

[2008] QMHC 13

MENTAL HEALTH COURT

CITATION:

Re Mach [2008] QMHC 13

PARTIES:

REFERENCE BY THE LEGAL REPRESENTATIVES IN RESPECT OF GREGORY MACH

PROCEEDING:

No 255 of 2007

DELIVERED ON:

17 September 2008

DELIVERED AT:

Brisbane

HEARING DATE:

10 September 2008

JUDGE:

Dutney J

ASSISTING
 PSYCHIATRISTS:

Dr J Lawrence
Dr E McVie

FINDINGS AND ORDER:

1.   I order that the defendant be detained to the Toowoomba and Darling Downs network authorised mental health Service

2.   I approve limited community treatment at the discretion of the authorised psychiatrist on the following conditions:

Escorted on and off the hospital grounds –

a)   That the patient is to remain under the escort of health service staff member/s nominated by the authorised psychiatrist for the duration of the limited community treatment;

b)     For the purposes of escorted limited community treatment, the patient complies with the directions of the nominated staff member/s for the duration of the limited community treatment.

CATCHWORDS:

MENTAL HEALTH – DECLARATION OR FINDING OF MENTAL ILLNESS OR INCAPACITY – where defendant charged with serious assault on a police officer, assaulting or obstructing police and breaching bail – whether there is a disputed fact - whether intoxication played a part in the deprivation of one or more of the capacities

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

Re C, (Mental Health Tribunal 27 March 1998)

COUNSEL:

Mr D Shepherd for the Defendant
Mr W Isdale for the Director of Mental Health
Mr A Lossberg for the Director of Public Prosecutions (Qld)

SOLICITORS:

Legal Aid for the Defendant
Crown Law for the Director of Mental Health
The Director of Public Prosecutions (Qld)

1. JDUTNEY:  The defendant was charged with a number of offences of varying dates.

1. He was charged with serious assault on a police officer on 24 November 2006, assaulting or obstructing police on 24 November 2006, and breaching a condition of bail on 23 November 2006.

1. On 4 June 2007, the defendant was charged with an offence of going armed so as to cause fear and an offence of entering premises and committing an indictable offence. He was charged with possession of dangerous drugs on 5 June 2007 and 3 breaches of a bail undertaking, all on 24 August 2007.

1. There have been a number of reporting doctors in relation to the offences. Of particular significance in this case were the reports of Dr Russell Finlay of 21 September 2007, Dr V Venugopalan of 14 January 2008, Dr B McGuire of 4 May 2007 and Dr J D Thompson of 22 May 2008.

1. All reporting doctors considered the defendant to have been deprived of at least one of the relevant capacities at the time of commission of the offences. However Dr McGuire was only dealing with the offences committed on 24 November 2006.

1. There are two issues before the court. The first is whether or not there was a disputed fact so as to deprive this court of jurisdiction. Secondly, there is an issue regarding whether or not intoxication played a part in the deprivation of one or more of the capacities.

1. The dispute of fact can be quickly disposed of. The offences on 4 June 2007 arose as a result of the defendant going shopping. The complainant was the part owner of a business named Betros Bros Pty Ltd. His attention was drawn to the defendant becoming abusive and obnoxious while waiting in line at one of the checkouts. The defendant then left the checkout line and put whatever he was going to purchase back on the shelf. At that time, the floor manager of the store believed that the defendant had stolen some other item. The defendant left the store.

1. The manager had a conversation with the part owner about the suspected shop stealing and the part owner and manager left the store and pursued the defendant. The part owner caught up to the defendant and started to have a conversation with him about the suspected shop stealing. The defendant reported to one of the psychiatrists that as he was being pursued, the part owner was calling out ‘thief’. The defendant thought that he was being pursued by someone from a building site where he had gone to urinate after leaving the shop. He said to the psychiatrist that he picked up a metal object to defend himself. The pursuers were then apparently threatened and one of them said “We’ll let the family take care of this”.

1. The defendant took this to be a reference to the mafia. It seems likely that this was said in the premises. On neither version was anyone struck with the iron bar. It was however submitted by the prosecutor, Mr Lossberg, on behalf of the ODPP that self-defence would be available to the defendant in relation to the charge of going armed so as to cause fear and the charge of entering premises and committing an indictable offence.

1. I doubt that such a defence would be available on the facts I have outlined but, in any event, the medical evidence supports a conclusion that any dispute of facts was a consequence of the defendant’s mental condition. While there is little disagreement as to the facts constituting the elements of the offences, Dr Venugopalan expressed the view that it was the defendant’s perception of events rather than the events themselves which caused the difficulty. In his irrational and deluded state he misinterpreted what otherwise would not constitute a threatening situation and overreacted to it. In those circumstances, I am satisfied that the dispute of facts (if any) is the consequence of the defendant’s mental condition.

1. The issue that occupied most of the time at the hearing was the impact of intoxication on a finding of unsoundness of mind. Unsound mind is defined in Schedule 2 to the Mental Health Act 2000 (Qld) to mean “the state of mental disease or natural mental infirmity described in the Criminal Code Act 1899 (Qld), s 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”.

1. It is well recognised in this area of the law that intoxication does not per se deprive a person of the defence of unsoundness of mind. The intoxication must play a part in the deprivation of one of the capacities referred to in s 27 of the Criminal Code.

1. In Re C, (Mental Health Tribunal 27 March 1998), unreported, Dowsett J considered the definition of unsound mind and concluded that if the medical witnesses were able to identify a state of mind (caused solely by mental illness) such as to deprive someone of a capacity, that state of mind would not, to any extent, be caused by intoxication (even if there is concurrent intoxication).  Ultimately that is the question of fact I have to resolve in this case.

1. The evidence in the written reports is all one way. Dr McGuire in her report considered that the deprivation of the capacity to understand what he was doing was wrong and the capacity to control his actions would have existed whether or not the defendant was intoxicated. Dr Finlay expressed the view that notwithstanding the presence of alcohol, and possibly other substances, the defendant was deprived of the capacity to know that he ought not do the act.

1. Despite lengthy cross-examinations, Drs Venugopalan, Thomson and McGuire all adhered to their view that the underlying schizophrenic condition was so severe that alcohol would not have made a difference to whether or not the defendant was deprived of the capacity to know that he ought not do the relevant act.

1. I consider that the evidence of the psychiatrists who were cross-examined was fairly summarised by Dr Lawrence who advised:

“We have evidence that when he was subsequently admitted to hospital in Toowoomba and observed and treated in circumstances whereby the chances of him consuming intoxicating substances, whether they be alcohol, cannabis or other drugs, was minimal. It became apparent that his illness was severe and chronic paranoid psychosis, paranoid schizophrenia.

If you then work from the basis of the mental illness and look at the actual offences of those of the 24th of November 2006, it seemed to me that three reporters, and in fact a fourth who didn't give oral evidence, Dr Finlay, all three reporters appear to believe that at the relevant time [the defendant] was in fact acting on his delusional beliefs against the police and that - as a result of his mental illness he was deprived of the capacity to know that he ought not do the act. There may have been some influence of intoxication present but, as I understood the evidence, Dr Venugopalan and Dr Maguire believed that he was deprived at the relevant time of the capacity to know that he ought not to do the act, that he was also deprived possibly of the ability to control his actions but that alcohol may have contributed to the deprivation of that capacity to control his behaviour.”

1. Having regard to the evidence, I am satisfied that the defendant was deprived of the capacity to know that he ought not to do the material act in relation to each of the offences charged, irrespective of the presence of alcohol. Alcohol may have contributed to some extent to deprivation of the capacity to control his actions, but having regard to the absence of one of the relevant capacities that finding is not material. I am satisfied therefore that the defendant has a defence of unsoundness of mind in respect of all the offences.

1. In my view a forensic order should be made. Submissions to the contrary were not made and the making of such an order is supported on the evidence.

1. Accordingly, I order that the defendant be detained to the Toowoomba and Darling Downs network authorised Mental Health Service.

1. I approve limited community treatment at the discretion of the authorised psychiatrist on the following conditions:

Escorted on and off the hospital grounds –

1.          That the patient is to remain under the escort of health service staff member/s nominated by the authorised psychiatrist for the duration of the limited community treatment;

2.          For the purposes of escorted limited community treatment, the patient complies with the directions of the nominated staff member/s for the duration of the limited community treatment.