Re Muller

[2007] QMHC 14

MENTAL HEALTH COURT

CITATION:

Re Muller [2007] QMHC 014

PARTIES:

REFERENCE BY THE DIRECTOR OF MENTAL HEALTH IN RESPECT OF MICHAEL KEVIN MULLER

PROCEEDING:

Proceeding No 0167 of 2006

DELIVERED ON:

20 July 2007

DELIVERED AT:

Brisbane

HEARING DATE:

20 July 2007

JUDGE:

Philippides J

ASSISTING
 PSYCHIATRISTS:

Dr Wood
Dr Lawrence

FINDINGS AND ORDER:

1. The defendant was of unsound mind as described in Schedule 2 of the Mental Health Act 2000 (Qld) at the time of the alleged offence

CATCHWORDS:

MENTAL HEALTH – DECLARATION OR FINDING OF MENTAL ILLNESS OR INCAPACITY – where defendant charged with dangerous operation of a motor vehicle causing death – where defendant suffers from epilepsy – where defendant suffers from an intellectual disability – whether as a result of the defendant’s intellectual disability the defendant was deprived of the capacity to know that he ought not to drive on the day of the alleged offence – whether forensic order should be made

Jiminez v R (1992) 173 CLR 572, cited
R v Batt [2005] QCA 444, cited
R v Foy [1960] Qd R 225, cited

R v Mursic [1980] Qd R 482, cited

COUNSEL:

Mr J Farmer for the Defendant
Mr W Isdale for the Director of Mental Health

Mr M R Byrne 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:  Michael Kevin Muller is charged with dangerous operation of a motor vehicle causing death on 11 July 2004.  The circumstances surrounding the alleged offence are that on the morning of the day in question he was driving to a shopping centre with his fiancée.  They did some shopping there and had some lunch.  They returned to the vehicle and the defendant drove.  The intention was to drive to the defendant's father's home.  In the course of driving there the defendant had an epileptic fit with the result that he lost control of his vehicle which collided with a telephone pole.  The defendant's fiancée died as a result of injuries she sustained in the accident.  The defendant is able to recall events up to a certain point but has no memory of losing control of the vehicle.

1. It appears that in addition to his epilepsy the defendant also suffers from an intellectual disability.  The testing conducted by Dr Keane, a neuropsychologist, indicates that the defendant had a full-scale IQ of 66, a verbal IQ of 61, and performance of 78.  The defendant falls into the mild range of intellectual disability.

1. The particulars of dangerous operation of a motor vehicle which are the subject of the charge do not centre on the defendant actually losing control of the vehicle as a result of the epileptic seizure.  As regards involuntary acts due to an epileptic seizure and consequent epileptic automatism, there are authorities in the Appellate division of this Court that such a condition is one of disease of the mind: see R v Mursic [1980] Qd R 482, R v Foy [1960] Qd R 225, R v Batt [2005] QCA 444.

1. Rather, in the present case, the particulars of the charge of dangerous operation of a motor vehicle concern the driving of the vehicle while suffering from a condition of long standing epilepsy.  In this context reliance was placed on the decision of the High Court in Jiminez v R [1992] 173 CLR 572 as the authority for the proposition that dangerous operation beyond the actual act that causes an accident, may form the basis of the charge. In particular, reference was made to dicta that, if a driver is in a condition while driving which makes the mere fact of his driving a real danger to the public, then the driving in that condition may constitute the dangerous driving offence.

1. In respect of the defendant's epilepsy, it appears that the defendant has had that condition for some time, probably from birth.  It has been treated with medication.  The defendant apparently suffers primarily from nocturnal seizures.  However, there is evidence that the defendant also suffered from seizures at other times and some evidence that he may have suffered from a seizure on the morning of the day in question.

1. In submissions the Prosecutor raised a possible dispute of fact.  The dispute was said to arise from a discrepancy between the evidence of Dr Porter, who stated at the committal hearing that he had never discussed the question of the defendant's driving a motor vehicle, and the defendant's evidence that Dr Porter had discussed his medication with him and that he had indicated that it was all right to drive, provided that the defendant took it easy on the roads.  There is no dispute on the evidence, however, that the defendant was at no time instructed not to drive a vehicle by his doctor or anyone else for that matter.  And in my view there is no relevant dispute of facts.  The facts upon which the expert evidence is based is not substantially in dispute.

1. The expert evidence from Dr Fama is that the defendant, by reason of his intellectual disability, was incapable of properly understanding his epilepsy as an active and unpredictable disorder that could strike at any time.  He considered that, as a result of the defendant's natural mental infirmity, the defendant was deprived of the capacity to know that he ought not to drive a motor vehicle while afflicted with ongoing epilepsy.  Dr Fama considered, however, that had there been an instruction not to drive that the defendant's intellectual disability would not have deprived him from knowing that he ought not to do so.  But as I indicated, there is no evidence of the defendant ever having been so instructed, and accordingly no dispute as to that matter.

1. Dr Varghese also gave evidence and stated in his report to the Court as follows:

"As to whether the defendant ought to have known as a matter of his own judgment that he ought not to be driving, this would have required some knowledge of the nature of his epilepsy and its consequences and in particular that the fits would come on unexpectedly such as to make driving dangerous.  He would not have been able to acquire this knowledge himself but if he had been told by his doctor, he would have known that it would be wrong to drive".

1. His oral evidence accorded with Dr Fama's, that in the circumstances of the present case in the absence of an instruction not to drive, the defendant's natural mental infirmity was such that there was a deprivation of the capacity to know that he ought not to drive on the day in question.  That opinion also accords with the views offered by the assisting psychiatrists.

1. In the circumstances, I find that the defendant was of unsound mind at the relevant time.

1. I do not consider that a forensic order is appropriate in the present case given that the defendant's condition appears to be adequately controlled and the defendant is now fully aware of the dangers which arise should he drive a vehicle during a period where he has ongoing epilepsy.