Re Me
[2009] QMHC 1
•26 February 2009
MENTAL HEALTH COURT
CITATION:
Re ME [2009] QMHC 001
PARTIES:
REFERENCE BY THE DIRECTOR OF MENTAL HEALTH AND BY THE PATIENT'S LEGAL REPRESENTATIVE IN RESPECT OF ME
PROCEEDING NO:
No 0158/2008
DELIVERED ON:
26 February 2009
DELIVERED AT:
Brisbane
HEARING DATES:
19, 20 February 2009
JUDGE:
Philippides J
ASSISTING PSYCHIATRISTS:
Dr E N McVie
Dr G ByrneFINDINGS AND ORDERS
1. That at the time of the alleged offences between 8 December 2007 and 2 January 2008 the subject of the references the defendant was suffering from unsoundness of mind as described in Schedule 2 of the Mental Health Act 2000 (Qld);
2. That defendant be detained as a forensic patient at The Park High Security Program Authorised Mental Health Service;
3. Approval of limited community treatment confined to the grounds of The Park Centre for Mental Health for up to 2 hours once per week, at the discretion of the authorised psychiatrist, on the following conditions:
a. That the defendant remain under the escort of two health service staff members nominated by the authorised psychiatrist for the duration of the limited community treatment; and
b. That for the purposes of the limited community treatment he comply with the directions of the nominated staff members 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 police, wilful damage, obstruct police, murder, rape, indecent treatment of a child under 16 – whether defendant was of unsound mind as defined in Schedule 2 of the Mental Health Act 2000 (Qld) at the time of those offences – where late onset mental illness – where atypical features present in diagnosis – whether defendant intoxicated by cannabis at the time of the offences – whether intoxication contributed to the defendant’s state of mind at the relevant times
Mental Health Act 2000 (Qld), Schedule 2
Re LIH [2002] QMHC 014COUNSEL:
Mr C Heaton for the Defendant
Mr W Isdale for the Director of Mental Health
Mr B Campbell for the Director of Public ProsecutionsSOLICITORS:
Legal Aid Queensland for the Defendant
Crown Law for the Director of Mental Health
The Director of Public Prosecutions (Qld)PHILIPPIDES J:
Background
The defendant is charged with serious assault police, wilful damage, and obstruct police on 8 December 2007, and with the murder, rape, and indecent treatment of his daughter, R, who was 10 years old between 30 December 2007 and 2 January 2008. These charges are the subject of two references before this Court.
The Court has had the benefit of expert reports from Drs Schramm, Reddan, Sundin and Tie, all of whom gave oral evidence.
At the time of the offences the defendant was a 40 year old single man. He was twice divorced. From his first marriage, he had two daughters, who at the times of the events in question were 18 and 15. From his second marriage, he had four children, aged between six and ten. From 2003 the defendant had custody of all six of his children. From January 2007, the defendant was in a relationship with a woman called Ms A, who he met at his work. The defendant had been employed as a funeral director for about 4 years with a local company, but his employment was terminated at the time of the first set of offences, at which time his relationship with Ms A also ended.
The events up to 8 December 2007
In mid 2007 the defendant attended his general practitioner Dr Norris presenting with anxiety and depressive symptoms and complaining of increasing difficulties and stress at his work. He was prescribed Sertraline (an anti-depressant) and Diazepam, and referred to a psychologist who he saw during the latter part of 2007. Prior to the period leading up to 8 December 2007, there was no preceding history of any psychotic episode or major mood disturbance. And while the defendant reported experiencing intermittent and fleeting psychotic-like symptoms since childhood, the reporting doctors distinguished between these symptoms and those the defendant experienced in the weeks leading up to the events of December 2007.
In the period leading up to 8 December 2007, the defendant became “completely preoccupied” with getting material together regarding issues at his workplace and taking industrial relation type issues to his union. He developed grandiose beliefs that he was going to take over the company he worked for and concurrent with his developing these beliefs he was sacked by his employer.
He reported receiving “a message” that he need to “seal the area” around an Army Barracks to “make it sacred” which he did. The defendant also undertook a bizarre visit to a mountain, feeling that he was “led” there by some spirit or force and also reporting a voice that he believed at the time was God’s voice. His car became bogged and he abandoned it.
A passer by who saw the defendant on 8 December 2007, and gave the defendant a lift, reported that the defendant told him that he was “fighting with his employer”, that “his father died the previous night”, that he had six children and that “his boy had been murdered, but that’s OK”, and talked about judgment day coming. He also talked about flying to France with his brother and children the next day.
On 8 December 2007, the defendant went to a Shopping Centre where he attempted to purchase $17,000 worth of jewellery by credit card. When police attempted to speak to him about his credit card, he became aggressive and they resorted to capsicum spray to restrain him. The defendant wished to buy the jewellery to give to Ms A as he hoped to marry her and was going to pay for the purchases with “God’s credit card”. (These events constitute the first set of offences the subject of the reference to this Court).
This conduct precipitated the defendant’s admission to the Royal Brisbane Hospital (RBH) on 8 December 2007 as a psychiatric patient under an Involuntary Treatment Order. On admission he was found to be elevated in mood with grandiose delusions and reporting decreased need for sleep. He expressed bizarre ideas such as that he was “the head union person for Kevin Rudd, that he knows Jesus, he told his children that he was flying them to France tomorrow”. He was assessed as suffering from a manic episode as part of bipolar affective disorder. He was treated with Risperidone (an antipsychotic) and Valproate (a mood stabiliser) and discharged from hospital on 21 December 2007. Although the defendant appeared to settle rapidly, to the subsequent reporters he admitted that he had failed to divulge to the RBH staff various delusional beliefs, including that he was hearing “constant voices”, having visions, believed that he was “one of God’s leading men” and that God was communicating to him via the ward whiteboard.
The evidence indicates that after his discharge on 21 December 2007, his psychotically-driven behaviour worsened in the context of his discontinuing his Risperidone medication. He took his mood stabilising medication in a variable manner and increased his intake of cannabinoids. The defendant also indicated to one reporter that he had re-commenced Sertraline upon hospital discharge despite the fact that that medication had been ceased during admission.
The defendant’s psychotic symptoms became more prominent and featured a complex delusional belief involving a religious mission. There is evidence that they were fuelled by almost constant auditory hallucinations and ‘impulses’ to act. He described to Dr Schramm “extremely bizarre behaviour in response to these beliefs citing numerous incidents of psychotic driven behaviour” in the 10 days post discharge from the RBH. There is a large amount of collateral information confirming bizarre behaviour during this period.
Between 30 December 2007 and 2 January 2008
The defendant’s reports of the days proceeding 1 January 2008 are of being directed by various voices; he was told to “mark the areas – to consecrate them”. He reported that street names “matched up with everything else, even the number plates on cars” and that people “knew he was someone special”.
On 29 December 2007, the defendant took his children for a planned holiday. Dr Schramm noted that on 30 December 2007 the defendant reported that he felt “impulsed” and lead by some “spiritual thing”. Dr Sundin noted that the defendant:
“became increasingly psychomotor agitated and reports that he had a dramatically reduced need for sleep, became convinced that he was hearing the voice of God, was undertaking a special mission for God and preparing his Ark of the Covenant, would be rewarded in this special mission by being granted the hand of his girlfriend now in marriage despite her having discontinued their relationship and increasingly became aware of special knowledge and special powers granted to him by God.”
The defendant reported not sleeping for four days, he thought he was the King of Scotland and bought a kilt to wear for his wedding to Ms A, although she had terminated their relationship.
On the night of 30 December 2007, the defendant visited his parents and was making wild accusations and stated, “Someone close to me is going to die tonight”. He also talked of various odd themes of rape and murder and made statements such as "This is your third and last chance to accept me as the Messiah". His parents became very concerned and contacted Dr Norris.
On 31 December 2007, the defendant left two bags containing a bizarre assortment of items on Ms A’s doorstep. Her response also was to contact the RBH to report her concerns about his mental state. Also on that day, police were contacted by a person in whose pool the defendant went to “re-baptise” himself, being instructed by voices to do so. The defendant reported experiencing strong impulses, he told his mother that God had instructed him to tell her she was doing “wrong things”, he visited his daughter, S, and confronted her with distressing “facts” he had been told by the voices. He reported driving around and repeatedly stopping on the drive, having been directed by voices to “step on the ground and bless it”, as well as “marking and blessing” with the car’s headlights.
At around 10.00 pm he put the children except his son, J, to bed. The defendant reported that then the voices “got very strong”. He remembered a “strong impulse” to shave J and his own heads, and that a voice told him J was “the golden child”. A voice told him that R was the “unclean part of the bloodline” and that she “had to be sacrificed to cleanse the bloodline to kill the schizophrenic gene”. He reported to Dr Schramm that the concept of “bloodline” had come up a few days earlier when talking to his mother on the phone, and was informed by his belief that his ex wife, R’s mother, had schizophrenia along with her mother and grandfather. He came to the understanding that R had the “unclean bloodline”; this understanding was not the result of being told by any clear voice, rather it was “an impulse, a sense”. He said that he was hearing noises around the house which were imploring him to “do something”. He had a strong sense that he had to eat the hair of each of the children and vomit it up because the hair was somehow a curse.
He said he was then told by the voices to wake R up and was also told to shave her head. He told Dr Reddan that the voices felt “real heavy and threatening, I knew I had to do what I was told, I would be killed I didn’t.” To other reporters he referred to a “force driving me”. He reported being instructed to apply a cream Finalgon, the name of which he related to “final gone” on himself and on R as part of a cleansing ritual, and to put it on his penis to “cleanse her inside”. He admitted that he attempted to rape her. The cream created a burning sensation and he washed it off. The voices then told him to get a particular shirt tie. The voices said: ‘it’s time, do it’. He admitted that he tightened the tie until she stopped breathing. He stated he was instructed by the voices “to get a knife to make sure it was finished” and stab her in the chest. He said that he obeyed but could not look. He reported to Dr Sundin that as this was happening the voices were saying to him “You’re doing a good job, you’re almost finished, your reward will be here soon.”The expected reward was a limousine which was going to collect him, and take him to the airport where he was going to be meeting Ms A to fly overseas to get married.
He said that he waited for approximately 90 minutes, but when the limousine did not turn up he drove off with J. He drove from Brisbane to a nearby suburb with J. He said that he searched a number of houses, knocking on doors, “searching for [Ms A] my bride”. At this time to him he said “everything was muddled up”.On one occasion, he said that he climbed up a ladder to an empty house looking for things “trying to work out what to do”.
The following morning B and C located R’s body. They fled to a neighbouring house, and reported that R had been killed. Police officers discovered R deceased. She had been stabbed in the chest with a knife, which was still in her chest. She had been strangled and her hands bound with rope. Her head had been roughly shaved and she had been wrapped in a blanket which was also tied around her ankles. She had been raped. The defendant admitted to indecently dealing with and raping his daughter and then killing her.
History following the events
On 2 January 2008 the defendant was examined at the Brisbane Watch House by Dr Grant who considered that the defendant was describing passivity phenomena, with visual and auditory hallucinations. He concluded that the defendant was suffering from a psychotic disorder of uncertain type. He postulated that given the previous diagnosis of bipolar disorder, he may have been suffering from atypical affective disorder with psychotic features, alternatively schizoaffective psychosis, and that drug induced psychosis needed to be excluded.
The defendant was seen by Dr Heffernan on 3 January 2008 at the Arthur Gorrie Correctional Centre. Dr Heffernan documented self-reports over “recent weeks” of auditory hallucinations, episodic visual hallucinations, passivity experiences, referential delusions and religious delusions. The defendant also recollected “trying to ‘baptise’ himself in someone’s swimming pool” ( “voices made me”, “for new life”) and “being compelled to go to [a mountain]”, “just directed to find something”, “was hearing [Ms A’s] voice”, “was knocking on people’s doors to find her”. When seen by Dr Heffernan the following day, the defendant reported:
●“4 voices – soft female voice, gentle male voice, 2 overpowering angry voices:
●“command hallucinations”
○“to eat the bases of foam cups” (seen by nursing staff eating foam cups)
○“to clean the corners of the room and eat the dirt”
○“to masturbate, place semen in various areas and eat it”
○“smash his head into door (illegible word) place blood on head and genitals” (sustained two minor lacerations to his head)
●“feels controlled”
Dr Heffernan remained concerned because the defendant was continuing to experience command hallucinations and acting on these, and considered that he remained a very high risk of harming himself. Dr Heffernan increased Olanzapine, with the addition of Diazepam and cessation of Sodium Valproate, whilst awaiting psychiatric admission for the defendant.
On 4 January 2008, the defendant was admitted to the Daintree Ward of the High Secure Inpatient Service, The Park - Centre for Mental Health (“The Park”). Dr Neillie concluded, “Presents with features of a paranoid psychotic illness”. He continued the defendant on psychotropic medications and placed him on constant observations. In mid January 2008, Dr Nellie increased antipsychotic medication in response to the presence of ongoing psychotic symptoms. The defendant still reported hearing voices when reviewed in May 2008. In a report by Dr Scott dated 18 February 2009, it was noted that the defendant reported that auditory hallucinations, which the defendant described as “whisper” had resolved some two months previously.
Diagnosis
Dr Schramm in his report of 26 August 2008 diagnosed schizophreniform psychosis with manic features, although observing that it was “unusual that he has developed such a florid psychotic illness relatively late in life”. He noted that:
“In addition to those religiose and grandiose themes within his delusions typically seen in manic psychosis, his disturbance featured schizophreniform symptoms, including the development of a complex system of bizarre delusional ideas encouraged by frequent hallucinations and passivity experiences.
There can be little doubt that for at least several weeks leading to the offences [the defendant] was in such a florid psychotic state. Not only do we have [the defendant’s] internally consistent story of such symptomatology, but the behaviour reported by those who knew him, strangers who came across him and his presentation after arrest (see interviews with police and examinations by psychiatrists early on) is entirely consistent with the story he recounts.”
When giving oral evidence Dr Schramm indicated that he had moved to a diagnosis of schizoaffective disorder as the appropriate classification. Dr Tie also favoured this diagnosis. Dr Tie noted in his report of 2 January 2009 that the presence of a psychotic illness at the time of the events in question was overwhelming, especially having regard to the circumstances surrounding his psychiatric admission, but also the numerous witness statements from lay people in respect of the defendant’s state of mind around the time of the offences and the reviews by clinical staff after his detention and transfer to the High Secure Inpatient Service. In reaching a diagnosis of schizoaffective disorder (bipolar type), Dr Tie stated he was influenced by the following clinical features:
“●manic episode concurrent with Criterion A for Schizophrenia (in this instance, religious delusions, hallucinations and disorganised behaviour)
●there have been delusions or hallucinations for two weeks in the absence of prominent mood symptoms ([The defendant] continued to experience this even after resolution of his manic episode and discharge from the Royal Brisbane Hospital on 21/12/07)
●symptoms that meet criteria for a mood episode are present for a substantial duration of the active and residual periods of the illness ([The defendant] described manic symptoms with auditory hallucinations in the two to three weeks preceding his psychiatric admission).”
Dr Tie noted that a plausible differential diagnosis was that of a Drug-Induced Psychotic Disorder (as defined in DSM-IV-TR), but discounted it because the disturbance was significantly in excess of what would be expected given his pattern of cannabis use.
Dr Reddan took a different view from that of Drs Schramm and Tie preferring a diagnosis of bipolar disorder characterised by a manic major depressive episode.
On the issue of diagnosis, Dr Sundin did not see the defendant as neatly fitting into any DSM-IV-TR classification. Dr Sundin interpreted the accounts of the defendant’s family, former girlfriend, medical and nursing staff, as describing the defendant having developed a hypomanic episode over one to two weeks prior to the admission to the Royal Brisbane Hospital. She observed in her report of 27 December 2008 that the defendant reported elements that fitted both under the umbrella of schizophreniform psychosis and those of a manic episode of a bipolar disorder with both mood congruent and mood incongruent elements. She was clearly troubled by aspects of the defendant’s clinical presentation, particularly the late onset of the psychosis, but in her report, Dr Sundin concluded that:
“Whatever the true underlying causation of his psychotic illness turns out to be, it would appear that the persistent nature of his psychotic symptoms over the period of December 2007 and their persistence while hospitalised at The Park Centre for Mental Health into 2008 in the absence of an exogenous substance such as amphetamines capable of causing such a psychosis, is sufficient to meet the definitional criteria for such a state of mental disease or natural mental deformity as to define unsoundness of mind.”
In oral evidence Dr Sundin indicated that, in terms of the DSM classification, she rejected the diagnosis of bipolar disorder and tended towards a diagnosis of schizo-affective disorder.
Deprivation of capacities
Dr Sundin
Dr Sundin considered that there was a deprivation of capacity of control in respect of both sets of offences, stating the defendant:
“… appears to have been in such a state of florid psychosis as to have been deprived of the capacity to control his actions, acting as he appeared to be under the direct impact of command hallucinations. … I consider that the deprivation applied to the issue of control and that [the defendant] was completely deprived of the capacity to control himself.”
She also considered that there was a deprivation of the capacity to know not to do the acts the subject of the first set of offences.
In respect of the second set of offences, she was unable to find a deprivation of that capacity, but considered there was a substantial impairment of the capacity, stating:
“With regard to the second set of offences, it would appear that he was certainly trying to make some sense of what he was being commanded to do and was rendered uncomfortable by the commands given to him by the voices but still felt driven to attend to their commands.”
Dr Schramm
Dr Schramm’s opinion was that there was a deprivation of the capacities to control and to know in respect of all offences. In his report he stated in relation to the capacity to control:
“I would also argue that his capacity to control his actions was completely deprived given that he was acting under those passivity phenomena (“urges” or “impulses”) and command hallucinations which he did not have the capacity to adequately question or resist.”
Dr Schramm did not share the reservation expressed by Dr Sundin in respect of the second set of offences in relation to the issue of deprivation of the capacity to know, stating:
“I am in no doubt that he was so disturbed in those moments of the offences that he was completely deprived of the capacity to know what that what he was doing with regards both offences was wrong. I appreciate that there was some small part of him which caused him to pause in the face of those intense command hallucinations and passivity phenomena, but do not believe that this should be taken to mean that he had anywhere near a degree of reasonable composure to consider the wrongness. In short, he believed he needed to commit those offences in line with his delusional beliefs and was of such a disturbed mental state that he was completely overwhelmed in his ability to reason about them.’
Dr Tie
Dr Tie also concluded that in relation to all the alleged offences, on the balance of probabilities, the defendant was deprived of the capacity to control his actions given the presence of these command auditory hallucinations and passivity phenomena (“an urge, an impulse”). Like Dr Schramm, Dr Tie also opined that the defendant was completely deprived of the capacity to know he ought not to do the acts. He opined that the defendant was deprived of the capacity to consider with any degree of composure, the wrongness of his acts, given his delusional beliefs that he needed to “cleanse her” and remove “the schizophrenic link” and given the presence of auditory hallucinations which he attributed to both God and the Devil. In his oral evidence, Dr Tie expanded on this view, stating:
“… he felt that he had a higher moral imperative which deprived him of the capacity that he ought not do the act and furthermore, that higher moral imperative associated with command auditory hallucinations and passivity phenomena deprived him of the capacity to reason with any degree of sense and composure about his subsequent actions.”
Dr Reddan
Dr Reddan considered that, in relation to all offences, the defendant “was suffering from mania of psychotic intensity which deprived him of the capacity to control his actions and of the capacity to know that he ought not do the acts with which he is charged”.
Intoxication
According to his own account, the defendant commenced using cannabis at age 14, and did so on a regular basis from the age of 18. He stopped smoking cannabis for a period in his twenties. The history he gave to Dr Schramm was of smoking on average 10 cones a day. He gave inconsistent accounts of previous amphetamine use. In relation to the events in question, he denied use of alcohol or amphetamines, but admitted to cannabis use.
The defendant told Dr Schramm that he smoked three strong joints of cannabis every day during November 2007, reporting that this was the equivalent of 15 cones per day, and that after discharge from the RBH he returned to smoking cannabis in similar quantities. He indicated to Dr Schramm that on 31 December 2007 he had consumed two strong joints of cannabis, one sometime during the day and one sometime around 8.00 to 8.30 pm, after which he consumed a cocktail of the medication in his possession. To Dr Sundin he said that he smoked on average three joints of cannabis throughout 2007 and that this increased substantially in November and December. The defendant told Dr Tie that he had increased cannabis intake to about 20 cones per day, but did not use cannabis on 31 December 2007.
The drug screen of the defendant’s urine on admission to the RBH was positive for amphetamines, cannabis, and prescribed medication. The urinary drug screen collected on 2 January 2008, when the defendant was admitted to The Park, was positive for cannabinoids, Sodium Valproate, and Sertraline. Further urinary drug screens demonstrated that the defendant had been compliant with his Valproate medication in the days leading up to admission, and were positive for cannabinoids.
Dr Schramm
In his report, Dr Schramm noted that there are some questions surrounding the defendant’s consumption of cannabis and prescription medication several hours prior to the offences of 31 December 2007. Dr Schramm observed in his report that when the defendant ceased his antipsychotic medication on discharge and returned to using cannabis, he experienced a return to an intense degree of psychosis. He opined that the defendant would have at the time of the second set of offences:
“been experiencing a degree of intoxication at the hands of that cannabis he had consumed (between three and four hours prior to the offence) and that cocktail of medication which his voices commanded him to take. However, I believe that the intoxication from these substances was not required to deprive him of that capacity and would have had little effect on his total mental state in any case.”
In giving oral evidence Dr Schramm clarified his opinion concerning intoxication from cannabis use. In his view, cannabis use was a possible factor producing the defendant’s mental illness in the first place, but as at the date of the offences, the mental illness existed independently of cannabis intoxication. He was asked on a number of occasions whether cannabis intoxication played any role in respect of the mental illness resulting in deprivation of any of the capacities at the time of the offences and was firm in his opinion that he did not believe that it played any role, stating:
“I'm saying that there may have been some intoxication but the state of mind that deprived him of the capacity did not include intoxication.”
When again pressed on the topic he explained:
“I don't believe that the mental state which deprived him of the capacities was affected by the acute intoxication which may or may not have been occurring.
To any extent you say?‑‑ To any extent. I'm not saying - I'm sorry - I'm not saying that he might not have had some effects which could be classed as intoxication, and therefore that is contributing to his total mental state at the time but looking at the total mental state which deprived him of the capacity, I don't think intoxication on cannabis contributed to that.”
He reiterated in the same vein:
“… the way that I'm seeing it is that that total mental state that deprived him of the capacities was not impacted upon to any extent by intoxication.”
Dr Sundin
Regarding the issue of intoxication, Dr Sundin stated in her report that “the only illicit substance relevant on this occasion was cannabis and intoxication with this substance alone would appear insufficient to account for his mental state throughout December 2007”. When giving oral evidence she indicated that she wished to add to that statement that “cannabis would have contributed by way of disinhibition to his mental state in December 2007”. In oral evidence she explained that she considered that the defendant’s mental illness was exacerbated by the presence of cannabis, in the sense that its intoxicating effect was “unmasking and exacerbating psychotic symptoms and would thus have been exacerbating the deprivation of capacity” of control, being the capacity she considered relevant. Dr Sundin however also accepted that the defendant’s psychosis was free-reigning and operating independently and did not require cannabis to maintain it. She also stated in oral evidence that:
“I think that more probably than not the capacity to control was already deprived and was then even further deprived by the presence of the intoxicant.”
Dr Tie
Dr Tie also offered the clinical opinion that substance intoxication was not a contributing factor at the time of the alleged offences, stating:
“[The defendant] denied the use of illicit substances or alcohol on the day of the alleged offences. Indeed, his account reveals a further deterioration in his psychotic illness despite a reduction in the amount of cannabis consumed (following his Royal Brisbane Hospital discharge on 21/12/07), in comparison to his past history and longstanding pattern of cannabis use. Such a clinical presentation provides further support for a diagnosis of Schizoaffective Disorder (Bipolar Type).
Even if the self-report provided by Dr Schramm was taken into consideration, where [the defendant] had apparently smoked two strong joints of cannabis on 31/12/07, this pattern of consumption remained approximately consistent with his previous pattern of cannabis use from 2006 onwards. The ongoing and significant deterioration in his mental state as a result of Schizoaffective Disorder (Bipolar Type) appears to be the cause for the deprivation of the relevant capacities. In my opinion, there were no features suggestive of cannabis intoxication at the material time.
He did take a mix of various medications in response to command auditory hallucinations (comprising Sertraline 50 mg, Sertraline 100 mg, Sodium Valproate 500 mg, Risperidone 2 mg, Diazepam 10 mg, Thyroxine 50 micrograms, Thyroxine 100 micrograms and Omeprazole 20 mg) on the night of the alleged offences. However, I do not believe that this would have led to a state of intoxication.”
In his oral evidence, Dr Tie opined that there was insufficient information to conclude that the defendant was in a state of cannabis intoxication, and noted that the defendant was an unreliable historian as to the actual quantity ingested. Dr Tie was referred to the varying reports of cannabis intake at the time of the second set of offences. While he considered that the cannabis use played a role as the initial trigger of the defendant’s psychosis, he considered that the defendant’s deprivation of capacities resulted from his schizoaffective disorder alone. He noted that the defendant had been a chronic user of cannabis for some 20 years without becoming psychotic before the events of December 2007. Dr Tie was steadfast in his opinion that intoxication did not play any role in the relevant deprivation of capacities as is apparent from the following exchanges:
“In that context of continuing chronic use right up to the commission of the offence it is simply impossible to exclude the cannabis use as a contributory cause to the state of mind?‑‑ I believe that state of mind is attributable to schizo-effective disorder which was triggered by cannabis use.
… I'm suggesting to you it's impossible to exclude that cannabis as a contributory factor. Perhaps I'll put it precisely in terms. Are you able to say that the state of mine - that is a deprivation of one of the capacities - did not result to any extent from intentional intoxication?‑‑ On the balance of probabilities, yes.
Dr Reddan
Dr Reddan stated in her report that “although it is likely that to some degree which cannot be easily determined, [the defendant] was intoxicated with cannabis, at the relevant time, this intoxication was not a factor in the commission of any of the offences”. Dr Reddan was asked about the following comment in her report:
“After his discharge, however, on 21 December 2007, [the defendant] ceased taking the prescribed risperidone, he began smoking cannabis again and for the reasons which remain obscure he began taking the sertraline again. It is likely that al three of these factors led to a very significant deterioration and exacerbation of his contrition.”
She indicated that on reflection it was more accurate to say that the factors mentioned “influenced the natural history” of the defendant’s condition. Her evidence was that at the time of the events in December 2007 the defendant’s mental illness was of such severity in itself that it deprived him of capacity, and that, whereas he may or may not have been concurrently intoxicated by cannabis, that did not contribute to any extent to the deprivation of capacity resulting from mental illness.
Unsoundness of mind
This court must determine whether the defendant was “of unsound mind” at the time of the alleged offences having regard to Schedule 2 to the Mental Health Act 2000 (Qld) (“the Act”) where the following definition appears:
“‘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.”
All reporting doctors agreed that the defendant suffered from a disease of the mind at the time of the acts in question, although there was some difference of opinion as to its aetiology. All the reporters agreed that at the time of the alleged offences there was a deprivation of the capacity of control and all bar Dr Sundin considered that the capacity to know was also deprived.
The central issue for consideration concerned the question of intoxication. In Re LIH [2002] QMHC 014 at [13], Wilson J stated the task of the court in respect of that issue as follows:
“The Court must determine whether he was deprived of one of the capacities by a mental disease, and if so, whether that state of mind resulted to any extent from intentional intoxication.
Her Honour considered that the words “state of mind” mentioned in the definition of “unsound mind” in schedule 2 of the Act ought to be understood in terms of a mental disease resulting in loss of any one of the three separate capacities, observing at [14]-[15]:
“The “state of mind” referred to in the second part of the definition of “unsound mind” (beginning “but does not include …”) is a description of absence of capacity caused by mental disease. … If intentional intoxication plays any role in bringing about the deprivation, the state of mind does not amount to “unsoundness of mind”: that is what is meant by the words “resulting, to any extent, from …”.
It is pertinent here to note, as one of the assisting psychiatrists observed of the expert evidence, that all experts were ultimately agreed that at the time of the offences the defendant’s mental illness was autonomous, that is, had a life of its own and operated independently of pre-existing or co-existing cannabis intoxication. That was also the clinical view of the evidence favoured by the assisting psychiatrists.
I note that Dr Sundin had some difficulty with the question of the role of cannabis intoxication, partly because she considered that the defendant had settled relatively quickly in the absence of cannabis use when in the RBH, as he was not noted to be experiencing ongoing psychosis. She also expressed some ambivalence as to the subsequent self report of command hallucinations during that period, although ultimately she accepted that, given the collateral accounts of others, there was consistent and reliable information to conclude that command hallucinations were a feature of the defendant’s mental illness. Dr Sundin did not advocate for a diagnosis of cannabis induced psychosis and accepted that at the relevant times the defendant was most probably suffering from a mental illness which could be categorised as schizoaffective disorder, and which had of itself deprived him of the capacity of control.
That the events in question occurred in the context of ongoing cannabis use such that intoxication may have been present at the relevant time is not sufficient to exclude a finding of unsoundness of mind. The critical question in terms of the definition of “unsound mind” is whether the absence of capacity caused by the mental illness resulted to any extent from intentional intoxication. On that issue the expert opinion on the whole, which I accept, was that while ongoing cannabis use may have played a part in the initial onset and history of the defendant’s mental illness, if cannabis intoxication was present at the material times, it did not contribute to any extent to the relevant deprivation of capacity (whether seen as the capacity of control or knowing not to do the acts). Rather the severity of the defendant’s mental illness was such that it alone accounted for that deprivation.
In the circumstances, I am satisfied that the defendant was of unsound mind at the material times, in that he was suffering from a disease of the mind and deprived of at least one of the relevant capacities.
Forensic order
Clearly a forensic order is required in this case. The defendant’s mental illness resulted in his engaging in horrific and shocking conduct with tragic consequences. Both Drs Sundin and Schramm noted the need for indefinite treatment with antipsychotic medication, and permanent abstinence from illicit substances. In their respective reports Drs Sundin, Schramm, and Tie highlighted concern over the defendant’s ability to obscure psychotic symptoms from those treating him. Dr Sundin reports that:
“he has demonstrated himself to be an unreliable historian and a man who cannot be relied upon to give an honest account of his symptomatology. Equally the seriousness of his offences is such that he must be entirely closely monitored in the future. I would concur with the comment made by Dr Scrhamm that any report that [the defendant] makes as to the absence of psychotic symptoms should be treated with a great degree of scepticism.”
In the circumstances, I order that the defendant be detained to The Park High Security Program Authorised Mental Health Service. I note Dr Schramm’s evidence that he considered that the defendant will need to be under a forensic order indefinitely.
The report from Dr Scott, the treating psychiatrist, indicates that the defendant’s condition has improved and that his risk of absconding, self harm or violence is “low to moderate”. The treating team seeks very restricted escorted ground leave. I note that there was no clinical evidence against the granting of the very limited escorted leave sought by the treating team and that the assisting psychiatrists supported that granting of such leave. Accordingly, I grant only escorted limited community treatment, at the discretion of the treating psychiatrist, for up to two hours once per week and confined to the grounds of the Park Centre for Mental Health and on the condition that the defendant be escorted at all times by two mental health staff members.
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