Re Mashhadi

[2008] QMHC 10

MENTAL HEALTH COURT

CITATION:

Re Mashhadi [2008] QMHC 10

PARTIES:

REFERENCE BY DIRECTOR OF MENTAL HEALTH IN RESPECT OF KEMAL MASHHADI

PROCEEDING:

Proceeding No 0049 of 2007

DELIVERED ON:

3 June 2008

DELIVERED AT:

Brisbane

HEARING DATE:

3 June 2008

JUDGE:

Philippides J

ASSISTING PSYCHIATRISTS:

Dr F Varghese
Dr E N McVie

FINDINGS AND ORDER:

1. The defendant was not of unsound mind as described in Schedule 2 of the Mental Health Act 2000 (Qld) at the time of the alleged offence;

2.    The defendant is fit for trial;

3.    The proceedings against the defendant are to continue according to law.

CATCHWORDS:

MENTAL HEALTH – DECLARATION OR FINDING OF MENTAL ILLNESS OR INCAPACITY – where defendant charged with acts intended to maim, two counts of serious assault, assault occasioning bodily harm, possession of a dangerous drug, dangerous conduct with a weapon, possession of a utensil, or pipe, and two counts of obstructing police – where defendant diagnosed with a schizophrenic illness – where there was evidence that the defendant used cannabis heavily at the relevant time and during the preceding year – whether intentional intoxication contributed to the defendant’s state of mind at the relevant time – whether the defendant was of unsound mind as described in Schedule 2 of the Mental Health Act 2000 (Qld) at the relevant time – whether the defendant is fit for trial

COUNSEL:

D Shepherd for the defendant
D Lang for The Director of Mental Health

S Vasta for The Director of Public Prosecutions

SOLICITORS:

Legal Aid Queensland for the defendant
Crown Law for the Director of Mental Health

The Director of Public Prosecutions (Qld)

1. PHILIPPIDES J:  Mr Mashhadi is charged with a number of counts alleged to have occurred on 23 December 2006.  They are acts intended to maim, two counts of serious assault, assault occasioning bodily harm, possession of a dangerous drug, dangerous conduct with a weapon, possession of a utensil, or pipe, and two counts of obstructing police.

1. The QP9s which are before the Court indicate that the police attended upon the defendant's home in respect of a report of domestic violence.  The police observed the defendant inside the house smoking a water pipe.  They observed the defendant racing to a cupboard to hide the water pipe.  The defendant then came from the rear of the house wielding an axe in his hand, which he waved at the police, stating that he was going to kill the police officers.  He wielded the axe several times.  Ultimately, it became lodged in the wall of the house and he fled.  The police gave chase and the defendant was subdued with the use of capsicum spray.  He was handcuffed but continued to resist the police officers, and struck one of the officers, kicking him in the groin.  Later police searched the premises and found a quantity of cannabis (approximately 43 grams of the drug).

1. The Court has the benefit of reports from a number of doctors.  The reports that are particularly pertinent for present purposes are those of Dr Chopra and Dr Chalk.  It can be immediately stated that no psychiatric evidence before the Court indicates a defence of unsoundness of mind is available in relation to the drug offences, and in respect of those two charges I find that the defendant was not of unsound mind.

1. In relation to the other charges, there is a divergence in the opinions provided in the written reports of Dr Chopra, who supports a finding of unsoundness of mind, and Dr Chalk, who does not.  There is no doubt that the defendant suffers from a schizophrenic illness.  He has a psychiatric history dating back to 1988, and there is also a family history of mental illness.  He has had several admissions to hospital over the years in relation to his condition. 

1. When Dr Chopra saw the defendant on 20 January 2007, the defendant was still seriously ill and actively psychotic, expressing strong persecutory delusions and auditory command hallucinations, and Dr Chopra indicated that those symptoms continued over some time notwithstanding abstinence from illicit substances and the defendant being medicated.  Dr Chopra in his report concluded that the defendant was at the relevant time suffering from active symptoms of schizophrenia and also the effects of cannabis consumption in heavy amounts.  He considered that the defendant was deprived of the capacity for control.  He stated in his report that it was difficult to determine precisely the contribution of the psychiatric condition and that of the substance abuse towards the deprivation of the capacity for control.  He also opined that it was highly likely that, under the circumstances, the defendant would still have been deprived of the capacity to control his actions at the relevant time, even in the absence of intoxicating substances.

1. In his oral evidence, Dr Chopra qualified the opinion expressed in his written report considerably.  He accepted that cannabis use contributed to some extent to the defendant's mental state.  He also indicated the opinion that, in this particular case, cannabis intoxication was probably a factor in the relapse of the defendant's mental illness, and the deprivation of capacity.

1. It is true to say that Dr Chopra gave at times what appeared to be conflicting evidence and that on the whole his evidence was equivocal.  I prefer the evidence given by Dr Chalk and the conclusion provided in his report, that while it was clearly the case that the defendant had a long standing and serious psychiatric illness and was suffering from that illness at the relevant time, intoxication nevertheless was a factor contributing to the defendant's state of mind which resulted in the relevant deprivation of capacity.

1. Dr Chalk in his report recorded the defendant's account to him that he had been using cannabis over a 12 month period prior to the alleged offences, and that he had been up the night before and had smoked a couple of grams of cannabis through a bong on the day of the alleged offences.  The defendant reported that he had been using that quantity daily for at least a year.  Dr Chalk therefore concluded that at the relevant time the defendant was intoxicated with cannabis.  In his view, the frequency of use of the drug over the preceding 12 months (by the defendant’s own account) suggested that substance intoxication had a significant contribution to the deprivation of capacities.

1. The view advanced by Dr Chalk was the preferred view of both of the assisting psychiatrists.  Dr Varghese advised that, in the circumstances of this case, it would be difficult to see how the reported cannabis use would not have affected the psychosis operative at the relevant time and the resultant deprivation of capacity.

1. In the circumstances, I find that the defendant was not of unsound mind at the time of the alleged offences that took place on 23 December 2006.

1. The evidence indicates that the defendant is fit for trial and accordingly all charges will proceed according to law.  I grant leave to the parties to use the medical reports before the Court in any further proceedings.