Re Maygar (No 1)
[2010] QMHC 53
•12 November 2010
MENTAL HEALTH COURT
CITATION:
Re Maygar (No 1) [2010] QMHC 53
PARTIES:
REFERENCE BY THE LEGAL REPRESENTATIVE IN RESPECT OF SCOTT GEOFFREY MAYGAR
PROCEEDING NO:
0189 of 2010
DELIVERED ON:
12 November 2010
DELIVERED AT:
Brisbane
HEARING DATE:
10, 11 June 2010, 30 September 2010
JUDGES:
Ann Lyons J
FINDINGS AND ORDER:
(A) I AM SATISFIED THAT THERE IS A REASONABLE DOUBT THE DEFENDANT COMMITTED THE OFFENCES AND THAT THE DOUBT THE DEFENDANT COMMITTED THE DISPUTED OFFENCES DOES NOT EXIST AS A CONSEQUENCE OF THE DEFENDANT’S MEDICAL CONDITION.
(B) I AM SATISFIED THAT A FACT THAT IS SUBSTANTIALLY MATERIAL TO THE OPINION OF AN EXPERT WITNESS IS SO IN DISPUTE IT WOULD MAKE IT UNSAFE TO MAKE A DECISION UNDER SECTION 267(1) OF THE MENTAL HEALTH ACT 2000 (QLD).
(C) I FIND THE DEFENDANT IS CURRENTLY UNFIT FOR TRIAL BUT THAT UNFITNESS IS NOT OF A PERMANENT NATURE.
CATCHWORDS:
MENTAL HEALTH – DECLARATION OR FINDING OF MENTAL ILLNESS OR INCAPACITY – where the defendant is currently serving a term of life imprisonment with a non parole period of 30 years – where the defendant is presently charged with assault occasioning bodily harm, grievous bodily harm, and attempted murder in relation to an assault on a fellow prisoner - where the current proceeding relates to the defendant’s state of mind at the time of the alleged prison offences – where evidence the defendant has a history of psychotic symptoms, alcohol and substance abuse from an early age, domestic violence and periods of homelessness during childhood, educational limitations and diagnoses of ADHD and conduct disorder during childhood – where no consensus between the reporting psychiatrists at to the defendant’s state of mind at the time of the alleged prison offences – whether defendant was of unsound mind at the time of the alleged offences as described in Schedule 2 of the Mental Health Act 2000 (Qld) – whether a dispute of fact arises – whether the defendant is unfit for trial.
COUNSEL:
J Briggs for the Defendant
J Tate for the Director of Mental Health
D Holliday for the Director of Public Prosecutions
G Handran for the Department of Community Safety (10, 11 June 2010)SOLICITORS:
Legal Aid Queensland for the Defendant
Crown Law for the Director of Mental Health
The Director of Public Prosecutions (Qld)
The Department of Community SafetyANN LYONS J:
Background
Scott Geoffrey Maygar is currently serving a sentence of life imprisonment with a non parole period of 30 years. That sentence was imposed by the Court of Appeal in 2007 for the murder of two people on 30 May 2005. He was also sentenced for other serious violent offences, including the manslaughter of a third person and four counts of rape involving a fourth person.
The Court of Appeal had set aside the sentence which had been imposed by the Supreme Court in Toowoomba and increased the maximum period of imprisonment from 20 years to 30 years due to the horrific nature of the crimes. Justice Keane described the offences as “the worst category of murders”.
Current offences
Maygar is now charged with assault occasioning bodily harm, grievous bodily harm, and attempted murder in relation to the assault on a fellow prisoner at the Maryborough Correctional Centre on 6 July 2008.
The legal representatives for Maygar have referred to this court a reference in relation to Maygar’s state of mind at the time he committed the alleged offences.
On 6 July 2008 staff at the Maryborough Correctional Centre called a code blue after being notified by other prisoners that the victim, Rodney Cherry, had been assaulted. He was observed to be bleeding from a 15 cm laceration to the right side of his neck. Cherry stated he felt a punch to the right side of his face before falling to the ground and felt a pain and cutting sensation to the right side of his neck. Closed circuit television (CCTV) footage and witness interviews indicate that Maygar had punched the victim Cherry once to the right side of the face causing Cherry to fall to the ground. That is count 1 of assault occasioning bodily harm.
In relation to count 2 of unlawful grievous bodily harm, the CCTV shows the defendant standing over Cherry and he is seen to remove something from his tracksuit pants before attempting to cut his throat with an unknown instrument. It is alleged that the defendant has placed his left hand on the victim’s head, exposing the right side of his neck, and then using his right hand to hold the weapon he has moved his hand in a cutting motion against the right side of his neck.
In relation to count 3, which is attempted murder, the closed circuit television shows the defendant desisting from his initial cutting action and standing up; then, after a short period of time returning towards the victim and continuing to cut the right side of his neck with the weapon in his right hand. It is alleged that Maygar only stopped the assault after being pushed off the victim by another prisoner.
A medical examination revealed a 15 cm long laceration and a 4 cm deep cut to the victim’s neck which required suturing; X-rays of the right side of his face confirmed maxillofacial injuries and a possible eye socket fracture. Maygar was interviewed after the assault and was asked about the use of a makeshift “shiv” to cut the neck of the victim. He stated he had made it from a razor blade taken from a pencil sharpener and melted it into a plastic Bic biro. He indicated he had disposed of the weapon in his toilet after the incident. During his record of interview the defendant is alleged to have stated that he recalled cutting the victim once to the facial area and had intended to scar him for life.
Mr Maygar has been in detention for the last five years and he will continue to be detained for many decades. His assessment and treatment whilst in prison has been problematic and complicated. Comprehensive psychiatric evaluations were not done until several years after his admission to custody. For the purposes of this reference numerous reports have been obtained and a number of psychiatrists have given evidence to this Court. In order to understand the issues in this reference I consider that it is necessary to fully set out the relevant medical evidence in relation to Maygar’s mental condition at the time of the commission of the 2008 offences. The psychiatric evidence reveals not only the complexity of the issues but also the divergence of opinions in relation to those difficult issues.
The assessing psychiatrists’ evidence
Dr Schramm’s evidence
Dr Schramm prepared a report dated 24 December 2009, as well as two addendum reports dated 13 and 23 September 2010. He gave oral evidence at the 10 June and 30 September 2010 hearings.
Dr Schramm indicated that Maygar suffers from a psychotic illness at times and, in particular, at the time Dr Schramm assessed him in 2009. Dr Schramm, however, questions whether schizophrenia was the correct diagnosis. In going through all of Maygar’s past notes, Dr Schramm found that most psychiatrists expressed some doubt that Maygar presented with schizophrenia. He considered some of Maygar’s psychotic-like symptoms could be explained by non-mental disease phenomena.
Dr Schramm found that three factors complicated Maygar’s diagnosis, the environment Maygar developed within as a child; the role of substance abuse; and the experiences he encountered in custody. Dr Schramm stated that Maygar’s violent childhood would create a disorganised sense of self and a tendency to dissociate. He noted Maygar’s report that he spent most waking hours since the age of eight intoxicated on a variety of psychoactive substances, which he considered would impact on Maygar’s perception and possibly his brain development. Dr Schramm further indicated that Maygar’s time spent in custody, which can be a threatening environment and in particular the maximum secure unit which is isolating and sensory deprived, could exacerbate paranoia and psychotic-like thinking. Dr Schramm considered that Dr Kovacevic’s report, written some six months after Maygar had been transferred to the maximum secure unit, supported this notion.
Overall, Dr Schramm thought Maygar’s condition was one that fluctuated, depending on his environment. Dr Schramm noted that he and other doctors, who had interviewed Maygar in prison, thought that some of his delusional thinking seemed to occur with insight and could be explained by his environment, as pseudo-hallucinations or dissociative type symptoms.
Dr Schramm recounted Dr Kovacevic’s report of Maygar wanting to die or ‘cross over’ as he termed it and lead a second life as Stephen Kitt. In Dr Schramm’s opinion these thoughts emerged when Maygar spent time in the Medium Secure Unit. Dr Schramm also thought the increase in his sentence from 20 years to 30 years, along with the changes in environment, further explained the fluctuation in Maygar’s agitation. He indicated that Maygar’s hallucinations involving the walls closing in on him were truly experienced by him. Irrespective of whether the hallucinations are psychotic or dissociative he was most vulnerable to them in stressful situations.
In respect of Maygar’s visions of assaulting the complainant in the nights preceding the offence Dr Schramm felt these could be explained as fantasizing rather than psychotic symptoms. Dr Schramm noted Maygar’s tendency to dissociate, drift off and day dream of fantasies which then becomes very real to him.
Dr Schramm considered there was evidence of non-paranoid motives for the offences, including pay back to the complainant and as a means of Maygar getting into the Detention Unit (DU). He conceded that these motivations could sit with some paranoia as well. Dr Schramm noted that Maygar was able to give a history of the relationship between himself and the complainant leading up to the offence and stated that “he gave I thought quite reasoned explanations as to why he should be in fear for his safety from Mr Cherry and from other people at the time”[1]. Dr Schramm felt Maygar had enough intelligence to work out that if he committed the offence it could mean he was transferred to the DU or prevented from returning to mainstream prison.
[1]Transcript, 10 June 2010, p 29 l 41.
Dr Schramm thought that when he examined Maygar on 6 July 2008 he was suffering from a psychotic illness, no matter what it was called. However, Dr Schramm stated that, even accepting that he had a mental illness and was some way impaired at the time, he was not satisfied that it deprived Maygar of the relevant capacities. He noted the fact Maygar hid the knife which indicated a capacity to know the wrongfulness of the offence. He also indicated there appeared to be some planning on Maygar’s part and that there was no evidence Maygar was deprived of the capacity to control. He did not accept as genuine Maygar’s report to others that he cannot remember certain parts of the offence and talking to police.
Dr Schramm also considered Maygar’s report to police that he sought medication and to see a psychiatrist on the morning of the offence, indicating that he felt agitated and might “lose it”, as further evidence that he knew that to assault someone was wrong and that he tried to prevent himself from doing it.
Dr Schramm, however, considered that there was no dispute of fact arising from Maygar’s and the police officers’ versions of events, despite them being slightly different.
Dr Schramm’s view was that Maygar was very dangerous and a high risk of violence, independent of a psychotic illness.
Dr Schramm also provided an addendum report dated 13 September 2010 which indicated that, despite having been provided with further material in relation to the matter, he would not alter the opinion expressed in his original report and in oral evidence.
Dr Schramm considered Maygar’s psychotic symptoms were increasing with time, and it may be that he has developed Post Traumatic Stress Disorder as a result of the Toowoomba offences, which could explain his increase in agitation.
Dr Kovacevic
Dr Kovacevic prepared a primary report dated 23 June 2009 and gave evidence at the hearing on 10 June 2010.
Dr Kovacevic stated that, at the time he wrote his primary report and his report of 26 April 2010, he was concerned about the extent of the evidence upon which he was asked to categorically diagnose Maygar. At the hearing he indicated that, subsequent to writing those reports, he was able to review further material and had made a shift in his opinion to consider that it was possible Maygar was deprived of the capacity to know the wrongfulness of his actions. When pressed in oral evidence, he stated that he was satisfied on the balance of probabilities that Maygar was deprived of the capacity to know he ought not do the act.
He indicated upon reviewing further material that he may have underplayed the role a psychotic illness played in Maygar committing the offences in his original assessment. That further material included Dr Beech’s report, Professor Grant’s report, as well as Maygar’s file from Child and Youth Services and the Prison Mental Health file notes from the time when Maygar was seen by Dr Fama.
In respect of a diagnosis, Dr Kovacevic opined that “Maygar has a major psychotic illness, most probably schizophrenia, paranoid type, both of which would, I believe, satisfy the legal test for mental disease”. He acknowledged that most psychiatrists who have seen Maygar were not certain of a diagnosis of schizophrenia. Dr Kovacevic however considered that after reviewing the history, it was his opinion that Maygar progressed from having a prodrome of schizophrenia to having a major psychotic illness somewhere around 2000. Dr Kovacevic also considered that Maygar never had the opportunity to develop a normal personality and that he possibly has elements of both an anti-social personality and a borderline personality.
Dr Kovacevic stated that, although he was reluctant to draw conclusions from a patient’s response to medication, he felt that Maygar’s response to Clozapine indicated that a psychotic process of some sort was present. He also opined that traumatic experiences, abuse and the use of drugs and alcohol cause permanent damage to brain structures. He stated that, in his opinion, there is a strong and proven link between childhood trauma and abuse and the subsequent vulnerability to schizophrenia. He noted this vulnerability is exacerbated by the use of drugs and alcohol, and that Maygar has a family history on his mother’s side of schizophrenia.
In respect of Maygar’s mental state at the time of the offences, Dr Kovacevic noted the difficulty in the fact that Maygar had not seen a psychiatrist for four months and, therefore, his compliance with medication and the adequacy of his treatment was unknown. He also noted the difficulties arising from the many inconsistencies in the reports of Maygar’s visions leading up to the offence, the interaction between Maygar and the complainant, where the weapon ended up, the reports to police and subsequent reports of amnesia. Dr Kovacevic thought that the lack of collateral evidence to Maygar’s reports could amount to a dispute of fact but in his opinion the dispute could be explained by reason of mental illness.
Dr Kovacevic considered that there was a distinction between understanding the legal wrongfulness of an act and not appreciating the moral wrongfulness of an act. He also indicated that the non paranoid motives outlined by Dr Schramm, could be explained by Maygar’s paranoid persecutory delusional belief system which involved the complainant. As Maygar believed the complainant was out to get him and felt extremely threatened, Dr Kovacevic thought this paranoia drove his intention to be transferred to a different unit. Dr Kovacevic recounted Maygar’s reports to him that Maygar had visions of Mr Cherry assaulting and perhaps killing him and, therefore, he acted pre-emptively to ensure self-preservation.
Dr Kovacevic felt that the planning on Maygar’s part in relation to the offence did not pose difficulty. He stated:
“Individuals with paranoid schizophrenia are very well able to plan, to organise, to prepare, to collect weapons, to manufacture weapons, to sometimes plan their attack in great details. It doesn’t mean that it’s still not based on mental illness.”
Dr Kovacevic noted that the offence was also done in a public place with CCTV cameras, which displayed no intention on Maygar’s part to conceal his actions.
In terms of fitness for trial, Dr Kovacevic felt that when he saw Maygar some time ago he was not fit for trial. However, he noted that fitness was time specific. Based on the other reports, and in particular the report of Dr Nellie, Dr Kovacevic thought Maygar was most likely still unfit for trial.
In terms of the risk Maygar presents, Dr Kovacevic stated that “I have little doubts that Maygar is - continued to present very significant, very real risk of serious, even more serious, acts of violence. His suicide risk is also significant”.
Dr van de Hoef
Dr van de Hoef prepared a report dated 9 November 2009, an addendum report dated 21 April 2010 and gave evidence on 10 June and 30 September 2010.
Report dated 9 November 2009
Dr van de Hoef outlined the circumstances in relation to the offences at the Correctional Centre and also indicated that the witnesses indicated that Maygar was seen walking around with a smile on his face, and that he had been heard to say something like, “I hope you die”. It is also noted that when he was interviewed by police on 7 July 2008, he indicated he had missed doses of anti-psychotic medication in the preceding days and had not slept for three days and was hearing voices. He also indicated he had stabbed Cherry to show him he was not afraid of him and to get a transfer out of the unit they shared. Dr van de Hoef noted that Maygar had spent a considerable time in solitary confinement between May 2007 and May 2008, and that he had been under constant closed circuit television observation, as well as 15 minute visual observations. In August 2008 there was prison intelligence that he was planning to suicide.
Dr van de Hoef indicated intoxication was not an issue. Dr van de Hoef referred to the fact that Maygar considered he was more paranoid at the time of the alleged offences. He also indicated that he “hears voices, and sees things, but that was more to do with the fact that he had already passed on (that is, died) and couldn’t find a way to pass over”. He reported that Cherry had been threatening him previously and he felt uneasy on the day of the offences. He had been carrying a knife to protect himself. He spoke to a nurse allegedly about saying he needed Valium or he would end up in a detention unit. It would appear that Maygar and Cherry had been in the same cell block for three months and Cherry had some days earlier told Maygar to “pull his head in” to avoid making life more difficult for all the inmates.
Dr van de Hoef outlined Maygar’s previous psychiatric history, which included past diagnosis of attention deficit hyperactivity disorder, domestic violence within his family and head trauma. He had also had long periods of homelessness as a child. He first began experiencing voices at the age of 15 in the context of cannabis abuse and then subsequently without substances. He had a history of depressive symptoms, including self-harm, as well auditory hallucinations and persecutory delusions. He was diagnosed with clear antisocial and borderline personality traits. He had a brief admission to the Rockhampton Mental Health Unit in July 2004 with a diagnosis of schizophrenia. Dr van de Hoef noted Maygar had been assessed several times in prison. She noted that the 2005 offences were not referred to the Mental Health Court because those charges were committed in the company of two others and intoxication was an issue. He had been treated in prison with antidepressants in 2005 and 2006 and then with Olanzapine.
In her report, Dr van de Hoef indicates that there was no psychosis suspected until October 2007. On 2 October 2007, Dr Aboud assessed him via video conference and noted “odd urges, mild paranoia and a possible paranoid psychosis”. He prescribed an anti-psychotic Risperidone. He also saw Dr Farma who diagnosed chronic schizophrenia and he prescribed Quetiapine between 16 July 2008 (10 days after the offence) and January 2009.
Dr van de Hoef indicated that the prison files indicated a diagnostic dilemma in relation to Maygar, because he displayed no evidence of psychosis on many occasions but often had symptoms of depression, anxiety, adjustment difficulties and disassociative experiences. However, there was also the possibility of intermittent psychotic symptoms, which included persecutory, grandiose, bizarre and nihilistic delusions as well as auditory and visual hallucinations. There were indications he had thoughts of hurting others and had violent pre-occupations which were noted in November 2007 and early 2008. He reported hearing voices, seeing visions and having de-personalised feelings. Dr van de Hoef notes that several times between June 2007 and early 2008 Maygar ceased taking medications. Dr van de Hoef states that Maygar has been on a waiting list for an in-patient assessment at the Park High Secure since February 2009 when he reported command hallucinations to hurt himself.
Dr van de Hoef referred to Professor Grant’s report which was based on a series of assessments between February and June 2009. She reported that Professor Grant concluded that Maygar suffered from chronic paranoid schizophrenia, anti-social personality disorder against a background of polysubstance abuse. Dr Grant made treatment suggestions which included a trial of Clozapine and a consideration of typical anti-psychotic medication including Indepoform. Dr Grant also considered that an ECT might be an option to gain control of depressive symptoms and the suicidal thoughts.
Dr van de Hoef stated that Professor Grant also considered that the effects of differing doses and types of medication may account for his differing presentations but he considered that the psychotic symptoms which were apparent in early 2009 had all been noted previously in the same form. He noted that Maygar’s mental state appeared to improve on depot Flupenthixol but, by April 2009, he was noted to have thought-blocking, thought-broadcasting together with tactile, olfactory, visual and auditory hallucinations. Maygar also expressed bizarre nihilistic delusions about already being dead. He attempted electrocution in June 2009, cut his head and hand and ingested a razor blade in 2009.
Dr van de Hoef noted that Corrective Services based on their experience of him in jail and intelligence information considered him too great a security risk to transfer to hospital. Clozepine was commenced in jail and she noted that his mental state has improved significantly since that time.
Dr van de Hoef considered that Maygar suffers from chronic, severe, partially treatment-resistant paranoid schizophrenia. She states there is a strong family history of psychotic illness. She considers his illness commenced with substance abuse in his early teens and evolved to a pervasive severe psychotic illness independent of substances. She considers that in the last 24 months and until the present day he has experienced many symptoms of schizophrenia, including persecutory and nihilistic delusions including a belief that he is dead, thought-blocking and broadcasting hallucinatory experiences. She also considers he has significant depressive symptoms. In her view, his illness was active at the time of the offences though he has developed more symptoms since then. She considers he remains at extremely high risk of suicide, self harm and of harming others.
In Dr van de Hoef’s view Maygar was suffering from a state of mental disease as defined in s.27 of the Code namely severe paranoid schizophrenia. She considered the disease caused him to have persecutory delusions and to delusionally misinterpret events and the actions of other people. She also considers it was highly likely he was experiencing numerous hallucinatory phenomena at the time, including command hallucinations.
Initially Dr van de Hoef’s view was that Maygar’s illness deprived him of the capacity to know he ought not do the act and may also have deprived him of the capacity of control. She did not think he was deprived of the capacity to know the nature of the act. In her addendum report, however, Dr van de Hoef’s view changed and she no longer considers he has a defence of unsoundness of mind.
Significantly, in her addendum report dated 21 April, Dr van de Hoef noted the inconsistencies between the details Maygar supplied to Dr Schramm and to her. She considers that those details indicate that Maygar committed the offences because of a motivation to hurt the complainant whom he considered had repeatedly threatened him as part of a two month long series of interactions. She also stated that Dr Schramm obtained evidence of planning of the offences with the fashioning of the shive for at least a week earlier. He also elicited information about visions or ideas of cutting the victim beforehand. He also deliberately lied to police about flushing the shive down the toilet to make the investigation more difficult.
Dr van de Hoef concluded that whilst her diagnosis would not alter in relation to the question of unsoundness of mind, she thought that, although Maygar’s evolving psychotic illness was present at the time of the offences in Maryborough, she considered that that illness impaired him but did not deprive him of any of the relevant capacities.
Dr van de Hoef considered that Dr Schramm was able to obtain a much better history from Maygar than she was able to, and that that made a difference to her opinion about unsoundness of mind. Dr van de Hoef, in her evidence to the Court, indicated that there were a number of issues showed an amount of pre-planning. In particular she considered that the difference in the factual accounts and the hiding of the shive were significant factors. Dr van de Hoef considered it was significant that the attack was a payback and that the detail about wanting Cherry to be scarred so that when he looked in the mirror he would remember him. She considered it sounded like retribution and that he was establishing his place in the hierarchy in the unit.
She stated:
“when he described disposing of the shive and how he deliberately did it in such a way as to make the police’s life more difficult in their investigation, I couldn’t read anything psychotic into that. I do agree with Dr Kovacevic that the very fact that he was carrying a knife around for a week, two weeks beforehand, doesn’t really mean much one way or the other to me in terms of whether it was driven by cold-blooded planning, if you will, or by a psychotic belief that he was about to be killed and had to defend himself. It could go either way.”
Dr van de Hoef also stated:
“But when Dr Schramm got that history of other really non-psychotic readings which seemed coherent, which seemed to hang together, and, more importantly, which seemed to agree with at least some of what was in the record of interview, that’s what lead me to change my opinion…
But I still think there are some parts of that transcript that are thought-disordered and paranoid when he talks about guns and being robbed. I can’t make any sense of that at all. So I think it is a real mixed bag.”
Submissions of Counsel
Counsel for Maygar
Counsel for Maygar, Mr Briggs, addressed the possibility of a s 268 dispute and conceded that Maygar indicated to police he had only intended to scare Mr Cherry, not to kill him. Counsel argued however that s 268 (3) and s 268 (4) allow the Court to find Maygar guilty of an alternative offence and a finding of unsoundness could be made. In response to the Crown’s argument that a dispute arises in respect of Maygar’s various reports as to motive, Mr Briggs argued that the reporting doctors did not perceive a dispute.
Mr Briggs conceded that the evidence on balance is against a finding of unsoundness of mind and that Dr Schramm’s evidence could reasonably be accepted. However, he emphasized the fact that Maygar attempted suicide at age eight, he subsequently committed homicide and has more recently developed an entrenched delusion involving a desire to be killed by others. Mr Briggs argued that if those events are connected they could only be by a profoundly disturbing internal process which is more than personality and which could have been operating during all three events. Mr Briggs submitted that Maygar has a psychotic illness and the intensity of his condition is supported by his lack of insight. He argued that all these factors may explain why Maygar is guarded and why he failed to reveal the true motive behind his actions.
Counsel also reiterated that Maygar was agitated at the time of the offences and had sought medication on the morning of the offences.
Mr Briggs submitted that the evidence in relation to Maygar’s unfitness for trial is unequivocal. He submitted that it is clear Maygar is temporarily unfit for trial with the possibility that this may settle.
Counsel for the Crown
Counsel for the Crown, Ms Holliday, argued that there was insufficient evidence in Maygar’s case to determine that he was driven by psychosis when he committed the offences or that he was deprived of any of the relevant capacities.
Counsel argued that a dispute of fact arose in this case and the Court is therefore precluded from making a decision in respect of unsoundness of mind. Ms Holliday submitted that Maygar may have been acting in self defence as he stated his life was threatened by the complainant and he was carrying around a make-shift weapon and therefore s 268(1) arises. Counsel further argued that the relationship between the complainant and Maygar leading up to the offence and immediately prior to the offence is so in dispute that it would be unsafe to make a determination. She submitted that because the nature of the relationship is unknown, it is difficult to determine how much of a role either mental illness played or how much non-psychotically motivated reasons played in the offences.
Counsel argued that if no dispute of fact was found then the evidence of Drs van de Hoef and Schramm should be preferred and a finding of unsoundness should not be made.
Counsel also conceded that there was consensus of opinion that Maygar was temporarily unfit for trial.
Counsel for the Director of Mental Health
Counsel for the Director, Mr Tate, submitted that the advice of the assisting psychiatrists should be followed when determining Maygar’s unsoundness. Mr Tate acknowledged that the question of a dispute of fact existed in this case. He also submitted that the evidence points to a finding of temporary unfitness for trial and therefore a forensic order would be required.
The views of the Assisting Psychiatrists
Dr Lawrence
Dr Lawrence considered that despite the differences in opinion amongst the reporting psychiatrists as to diagnosis, classification and criminal responsibility, she determined four areas of unanimity. Firstly that an ongoing and severe psychosis was present at the time of the offences; secondly Maygar failed to respond adequately to a number of different antipsychotic medications; thirdly the need for Clozapine, a best practice antipsychotic drug for treatment-resistant schizophrenia and psychoses and finally the fact that Maygar presents a high level of danger to the community and himself.
Dr Lawrence however considered a dispute of facts arose in relation to Maygar’s unsoundness of mind under both ss 268 and 269 of the Act. She considered this was due to the issues surrounding Maygar’s diagnosis and Maygar’s varying reports as to his state of mind at the relevant time.
Dr Lawrence indicated that the differences as to Maygar’s diagnosis are explained by a range of factors, in particular, Maygar’s prejudicial childhood; the genetic risk in his family history; the abuse he suffered during childhood; the implications of ADHD and conduct disorder diagnoses during childhood; and his significant educational limitations as well as the early onset of drug abuse. Further Dr Lawrence noted Maygar’s intermittent and limited exposure to adequate psychiatric assessments and treatment and the varying presentations of his mental state recorded and observed over the years. She felt these factors along with psychiatry's inability as yet to unravel them, particularly the underlying biological factors which contribute to the development of clinical psychosis, meant that “the issue of precise diagnosis and subsequently the issue of criminal responsibility at the time of these offences is a matter of dispute”.
In respect of Maygar’s own reports, Dr Lawrence considered that the ability to reach a conclusion as to unsoundness centred on the assessment of his state of mind and its functioning at the time of the event, and it was her opinion there was no detailed accurate contemporaneous evidence. She recounted that Maygar himself had given three different accounts to three different psychiatrists, Dr Kovacevcic, Dr van de Hoef and Dr Schramm, at relatively close times.
Overall, Dr Lawrence felt a dispute over the facts arose in terms of the statements made in evidence and to psychiatrists as well as in terms of Maygar’s account of his state of mind at the time.
Dr Lawrence advised that if unsoundness was to be considered, she would recommend the opinions of Dr van de Hoef and Dr Schramm that even if Maygar’s psychosis was present it was not sufficient to deprive him of capacity but merely impair the capacity to know what he was doing.
Dr McVie
In Dr McVie’s opinion, it was more likely than not that Maygar was so psychotic at the time of the offences to be deprived of the capacity to know he ought not do the act and that any dispute would have arisen from the severity of his psychotic mental state at the time. She advised that the longitudinal history suggests that Maygar has a very clear diagnosis of schizophrenic illness.
Dr McVie considered there was evidence that Maygar was under-medicated if not un-medicated at the time of the offence. She also felt that the clinical evidence overall suggests Maygar was, in fact, acting on a persecutory delusional system. He believed Mr Cherry was out to get him and he acted first as supported by his reports of auditory and visual hallucinations to Dr Schramm. She considered some of the symptoms evident at the time of the assault are consistent with his current symptoms.
Dr McVie’s advice was to accept the written opinion of Dr Van de Hoef and the oral evidence of Dr Kovacevic, she felt the longitudinal history of a schizophrenic illness which had been diagnosed for some seven years and the recent evidence of Dr Neillie supported that Maygar has been severely psychotic for at least the last 18 months.
Is a Defence of Unsoundness of Mind available?
Section 268 (1) provides the Mental Health Court must not make a decision in relation to unsoundness if the court is satisfied there is a reasonable doubt the person committed the alleged offence.
“268 Reasonable doubt person committed offence
(1)The Mental Health Court must not make a decision under section 267(1)(a) or (b) if the court is satisfied there is reasonable doubt the person committed the alleged offence (the disputed offence).”
Pursuant to s 268(2), however, the court may make a decision if that doubt exists only as a consequence of the person’s mental condition.
In my view, there is a dispute of facts which does not arise as a consequence of Maygar’s mental condition.
One issue surrounds the nature of the relationship between Maygar and the complainant. The victim Cherry states that there was only a brief dealing between himself and Maygar prior to the offence. There was nothing immediately prior to the offence, only days prior. Cherry states:
“I hadn’t had any run ins with Scott Maygar as such except for a couple of days before around Thursday I had a conversation with him on the steps after he caused a bit of trouble in the unit with one of the prison guards. I said ‘What did you do that for Scotty. You know you just cause trouble for all of us. You need to pull your head in if you’re going to be here for a long time.’”
Maygar however has provided differing accounts as to the relationship between himself and the complainant. At its highest Maygar recounts to Dr Schramm[2] incidents between himself and the complainant in the weeks leading up to the offence and immediately prior. In particular, Maygar recounts incidents where the complainant threatened to “smash him”. Maygar took these threats seriously and carried a makeshift weapon around for protection. Immediately prior to the offence, the complainant said something threatening to Maygar which, as best as Maygar could recall, was a threat to his life.
[2]Dr Schramm Report p 22-25.
Dr Schramm stated when talking about the background relationship between Maygar and the complainant that “there was a depth to the detail that Maygar gave that did not have me doubt that he was describing things that had actually happened”.[3]
[3]Transcript 11 June 2010, p 9, ll 50-55
The reporting psychiatrists have not said that any dispute of facts exists. However, they noted the difficulties arising from the many inconsistencies in the reports of Maygar’s visions leading up to the offence, the interaction between Maygar and the complainant, where the weapon ended up, the reports to police and subsequent reports of amnesia. In my view one of the greatest difficulties relates to the varying accounts Maygar has given as to his state of mind at the time of the stabbing.
In the additional material provided by the Department of Community Safety there was an Officers Report (Hussey) regarding the circumstances of the stabbing. It details that following the assault Maygar glanced at the officer’s station and appeared “flushed and smiling”. Dr Schramm stated in his addendum report dated 13 September 2010 that this could be said to provide further support for the proposition that a dispute of facts exists in this matter. Dr van de Hoef also considered that the difference in the factual accounts and the hiding of the shiv were significant factors. Dr van de Hoef considered it was significant that the attack was a payback as was the detail about wanting Cherry to be scarred so that when he looked in the mirror he would remember him. If Cherry’s account is accepted, then it may be argued that Maygar’s response is psychotically motivated. However, if Maygar’s own account is believed, then his response is equally consistent with the possible motivations of payback, retribution or to get into detention.
Maygar states that his life was threatened by the complainant prior to the offence. Accordingly, it may be that he was acting in self defence and s 268 (1) applies. There is some evidence that the victim may have done more in the lead up to the offence than has been revealed, which may explain why Maygar was carrying out a makeshift weapon.
Section 269 also needs to be considered. That section provides:
“269 Dispute relating to substantially material fact
(1)The Mental Health Court must not make a decision under section 267(1)(a) or (b) if the court is satisfied a fact that is substantially material to the opinion of an expert witness is so in dispute it would be unsafe to make the decision.”
In my view, it is also arguable that s 269 applies. That is, that the nature of the relationship between Maygar and the complainant in the weeks before the incident, and also immediately before the offence, is so in dispute that it would be unsafe to make a decision.
In my view, because the nature of the relationship between the complainant and Maygar is unknown, it is difficult to, in fact, determine how much of a role Maygar’s mental illness actually played in the offence, rather than the other non-psychotically motivated reasons for committing the offence, which included self-defence and payback. Because of the varying accounts as to the factual circumstances of the stabbing as well as Maygar’s varying accounts as to his state of mind I consider that a dispute of facts would also exists in relation to any alternative offence.
Accordingly, in my view, because of the provisions of ss 268 and 269 of the Act, this Court should not make a decision in respect of unsoundness of mind and the matter should proceed to trial.
I am satisfied that there is a reasonable doubt the defendant committed the offences and that the doubt the defendant committed the disputed offences does not exist as a consequence of the defendant’s medical condition.
I am satisfied that a fact that is substantially material to the opinion of an expert witness is so in dispute it would make it unsafe to make a decision under section 267 (1) of the Mental Health Act 2000.
Fitness for Trial
Dr Neillie’s evidence
Dr Darren Neillie, consultant psychiatrist with the Prison Mental Health Service, gave evidence in relation to Maygar’s current mental state. Dr Neillie indicated that he has continued as Maygar’s treating psychiatrist at the Arthur Gorrie Correctional Centre (AGCC) and in this capacity he has been able to interview Maygar on a regular basis and to monitor his condition.
Dr Neillie gave evidence that Maygar told him in June 2010 that he had difficulty in following what was being said at the Mental Health Court hearing, which had been conducted on 10 and 11 June. He indicated he had an increasing experience of hearing voices and an increase in the frequency of ‘déjà vu’ experiences, which indicated to him that “none of this is real”. Dr Neillie indicated that at that point Maygar agreed to commence Ariprazole to augment Clozapine. Dr Neillie indicated that this dose was increased on 25 June 2010. Due to Maygar’s anxiety related to persecutory beliefs about others on the unit, Diazepam 5 mg twice a day was then added as a short term anxiolytic.
Dr Neillie stated Maygar was then reviewed on 2 July 2010, and he continued to describe paranoid and persecutory beliefs. In view of his ongoing anxiety, the dose of Diazepam was increased by a further 5 mg. On 19 July 2010, Dr Neillie stated Maygar continued to describe experiencing voices and he was given greater access to his cell during the day in order to reduce his level of paranoia and anxiety.
When Maygar was reviewed on 23 July, Dr Neillie stated he appeared more relaxed as he had been moved temporarily to the medical centre because of concern about his mental state. When he was reviewed on 6 August, Maygar had been moved back to Unit B1, where he was feeling better and was having a good sleep pattern and appetite. Maygar recommenced his job as a cleaner in the unit. When Maygar was assessed on 20 August 2010, concerns were raised by health care staff about possible non-compliance issues with medication and Maygar had refused to have Clozapine on one occasion, but had subsequently accepted it.
On discussion with Maygar, Dr Neillie stated that Maygar indicated he was considering refusing his medication because of the side effects, which included sedation and reduced energy. Furthermore, Dr Neillie said that Maygar stated he did not need medication, as the symptoms he was experiencing were not due to a mental illness, but he considered were all “part of a prophecy”. Dr Neillie considered Maygar was describing an increased ability to walk away from conflict on the unit.
Due to his side effects, the dose of Clozapine was reduced by 50 mg to 450 mg and his dose of Aripiprazole was increased to 45 mg. Maygar was interviewed by Dr Neillie again on 30 August in the detention unit at AGCC where he had been moved after describing increased difficulty in coping in Unit B1. He expressed the view he needed to be by himself and had described aggressive thoughts towards others. When reviewed in early September, Dr Neillie indicated Maygar described some days when he thought his mental state was good, with other days where it fluctuated and he had bad days. When he has bad days he has a feeling of déjà vu and a feeling that things are not real. He also described intermittent auditory hallucinations.
Maygar was then seen again by Dr Neillie on 27 September just days before the hearing and, whilst Dr Neillie considered he engaged reasonably well, he considered he was distractible towards the end of the interview. Whilst he had also begun a transition plan back to the Unit B1 from the detention unit, he was still describing visions and his auditory hallucinations persisted.
In relation to fitness for trial, Dr Neillie considered that Maygar understands the nature of the charge he is facing. He understands the difference between a plea of guilty and not guilty and he shows a basic understanding of the nature of court proceedings. Dr Neillie indicated that Maygar had stated that he was aware of the evidence in relation to the current charge and that if he were to enter a plea of guilty, that that would mean more gaol time for him.
Dr Neillie stated, however, that Maygar thought an outcome from the court should be “the death penalty … it would be better for everyone, better for my mother … better for the families of the victims”. Maygar had stated to him that he believed the death penalty would be a way he would achieve “cross over”, which is a consistent view he has expressed to him.
In relation to the question of Maygar’s views about ‘crossover’ Dr Neillie gave the following responses to questioning;[4]
“So, ultimately, the belief about crossover - Maygar holds the belief that some years ago he died. Yes?-- And his body is currently lying in the bush and he has since moved over to an alternative world. So, in the comments that I have made about Maygar not believing what is happening is real, that's linked into his belief about being in an alternative world. Crossover is a way that he believes would allow him to cross back to rejoin his body and leave this world which at times he doesn't believe is real and I think - so there is crossover, there's the belief about the death penalty, which is linked to crossover, but is also, I think, to what I would see as some development of remorse about the offences from Toowoomba and, largely, Maygar sees that to die will achieve both those ends.”
[4]Transcript 30 September 2010, p 10 ll 53-60
Dr Neillie stated that he believed Maygar would at present have difficulty in adequately instructing counsel due to his ongoing psychotic symptoms and the deterioration in his mental state in the context of brief interviews. He considered that Maygar was not currently fit for trial. He would assess Maygar’s unfitness to be of a temporary nature. In his view, there has been some improvement in the degree to which Maygar’s delusional belief system would interfere with his ability to instruct his solicitor. Dr Neillie considered that there is the possibility of further improvement of Maygar’s symptoms of his mental illness with ongoing treatment.
Dr Kovacevic’s evidence
Dr Kovacevic’s view, in his report of 23 June 2009, was that he did not consider that Maygar was then fit to stand trial. In particular, he considered Maygar would find it difficult to focus and concentrate on relevant legal matters without being distracted by psychotic thoughts and stimuli. He also considered that his pathological beliefs about passing over to a different world, or having to figure out the answer to some ultimate test, or of being the subject of a study or experiment, would be expected to interfere with his ability to give meaningful instructions in court proceedings. At that time, Dr Kovacevic considered that Maygar’s unfitness to stand trial was temporary and that his capacities could be expected to improve with further psychiatric treatment. In his evidence at the June hearing, Dr Kovacevic indicated he considered that Maygar was still currently unfit for trial.
Dr Schraam’s evidence
In his initial report, Dr Schramm indicated he did not consider that Maygar was fit for trial. He believes that Maygar was suffering from a delusion regarding his need to “cross over”, which he considered was “infecting” his planned instructions to receive the death penalty and he considered that, in the circumstances, he did not see how Maygar could be considered fit. Dr Schramm considered that Maygar was still currently unfit.
Dr van de Hoef’s evidence
Dr Pamela van de Hoef, in her report dated 9 November 2009, considered that whilst Maygar appears to understand the charges against him and understands the nature and functions of the agents of the court, she considered that his persistent severe psychotic symptoms prevent him from properly instructing counsel and entering a plea. In particular, Dr van de Hoef considered that his bizarre delusions that he was dead and his propensity to have delusional memories prevent him from properly instructing counsel and entering a plea.
She also considered that Maygar could not withstand the rigours of a trial without detriment to his mental health. In particular, Dr van de Hoef noted Maygar’s view that he hoped that the Mental Health Court would pass the death penalty on him to facilitate him passing over. She considered that he was unfit for trial. However, with further treatment of his severe psychotic illness, she considered that the unfitness might be of a temporary nature.
The views of the assisting psychiatrists
Dr Lawrence
Dr Lawrence considered that Maygar was unfit for trial and that this unfitness was temporary. She considered that his delusional belief systems in relation to having another life, wanting to plead guilty, and wanting the death penalty, indicate that he has consistent delusional beliefs, which would make him currently unfit for trial.
Dr McVie
In terms of fitness for trial, Dr McVie similarly considered that Maygar was currently unfit for trial. However, she considered that he has been temporarily unfit for trial for the last 18 months and, in her view, it has probably reached the stage where this is a permanent unfitness.
Conclusion
In my view, I consider that the overwhelming evidence is that currently Maygar is unfit for trial. His delusional belief system is such that it would interfere with his ability to give instructions to his counsel. Furthermore, I consider that his intrusive thoughts and psychotic beliefs, as well as his auditory hallucinations, would make it difficult for him to participate in a trial. I also agree with Dr van de Hoef that, given his current mental health, he would not withstand the rigours of a trial.
In my view, therefore, Maygar is currently unfit for trial and this unfitness is not currently permanent.
In a separate set of reasons, I shall consider the issue of Maygar’s placement whilst he remains temporarily unfit.
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