Re Murray
[2014] QMHC 7
•28 August 2014
MENTAL HEALTH COURT
CITATION:
Re Murray [2014] QMHC 7
PARTIES:
REFERENCE BY THE DEFENDANT’S LEGAL REPRESENTATIVE IN RESPECT OF ADAM JOHN MURRAY
FILE NO/S:
54 of 2013
DELIVERED ON:
28 August 2014
DELIVERED AT:
Brisbane
HEARING DATE:
15 July 2014, 16 July 2014
JUDGE:
Boddice J
ASSISTING PSYCHIATRISTS:
Dr F T Varghese
Dr S HardenORDER:
At the time of the alleged offence, the subject of the amended reference, the defendant was not suffering from unsoundness of mind as defined in the Schedule to the Mental Health Act 2000;1.
At the time of the alleged offence, the subject of the amended reference, the defendant was suffering from diminished responsibility;2.
The defendant is temporarily unfit for trial;3.
The defendant be detained, pursuant to a forensic order, in The Park High Security Authorised Mental Health Service;4.
There be no approved limited community treatment at this time;5.
Copies of the reports, and of the transcript, be provided to the parties, the treating team, the Mental Health Review Tribunal, and the Attorney-General.6.
CATCHWORDS:
MENTAL HEALTH – DECLARATION OR FINDING OF
MENTAL ILLNESS OR INCAPACITY – where the defendant is charged with murder – where the defendant had consumed amphetamines the evening before the alleged offence was committed – where the defendant was floridly psychotic and was deprived, a least, of the capacity to know he ought not do the act – where the reporting psychiatrists have differing opinions – where counsel for the defendant submits the defendant was of unsound mind at the time of the alleged offense, or alternatively, the defendant is entitled to a defence of diminished responsibility – where the Director of Public Prosecutions submits the defendant is not entitled to a defence of unsound mind or diminished responsibility –whether the defendant’s deprivation resulted from intentional intoxication – whether the defendant was suffering from diminished responsibility – whether the defendant is fit for trial
Criminal Code 1899, s 27, s 304A
R v Davis (1881) 14 Cox CC 563, cited
Re LIH [2002] QMHC 14, citedR v Stapleton (1952) 86 CLR 358, cited
COUNSEL:
J Briggs for the defendant
J Tate for the Director of Mental HealthS Vasta for the Director of Public Prosecutions
SOLICITORS:
Legal Aid Queensland for the defendant
Crown Law for the Director of Mental HealthDirector of Public Prosecutions
BODDICE J: By amended reference filed 8 April 2013, Legal Aid Queensland referred to this Court the mental condition of Adam John Murray at the time of an alleged offence of murder on 2 May 2012. It is not in dispute that at the time of the alleged offence, the Defendant was floridly psychotic and deprived, at least, of the capacity to know he ought not do the act. At issue is whether deprivation resulted, to some extent, from intentional intoxication. Diminished responsibility and fitness for trial are also in issue.
Background
The Defendant is a 30 year old single unemployed man. He was born on 14 August 1984. He has one child with his partner who also has a child from a previous relationship. He has a past history of chronic substance abuse, especially amphetamines. He also has an extensive criminal history, from the age of 17 years.
Alleged offence
On 2 May 2012, police and emergency services were called to an incident at a suburban park in Strathpine. They found a woman in a critically injured state with head injuries and stab wounds. The Defendant was located nearby, covered in blood with two cuts to his head and an injury to his left big toe. He was holding a piece of the victim in his hand, which he threw away as police approached him. Police later located a blood covered metal bar and a machete.
Police had been called to the scene after a witness heard the Defendant say he had to kill the victim as she was “crazy” and it was “the only way”. He had asked the witness for a knife to “finish it or she will come back”. The Defendant was detained by police. He was noted as exhibiting delusional thoughts. The Defendant was assessed in the Watch House by the Court Liaison Service. He was subsequently transferred to the High Security Inpatient Service where he was prescribed anti-psychotic medication. He remained an inpatient until July 2012 when he was returned to custody.
Whilst being treated at High Secure, the Defendant gave a history of regularly using intravenous amphetamines as well as multiple cones of cannabis on a daily basis from February 2012. He reported having become chronically paranoid and hyper-vigilant such that he would arm himself with weapons. He developed paranoid concerns about the safety of his family. He also reported other delusional ideas.
The Defendant said he met the victim the night before the alleged offence. They shared some amphetamines. The Defendant said he had used amphetamines on 28 April 2012, and again on the night before the alleged offence. He reported the injected drug he received was much stronger than he was used to, and he had only a patchy recollection thereafter. He recalled remaining in the company of the victim.
Whilst in the company of the victim, the Defendant became increasingly mistrustful of her, ultimately believing she was planning to kill him and his friend. He began to have thoughts there were tracking devices being used to monitor his movements. He was also receiving “messages” from his deceased grandfather and another deceased person. At some point, whilst he was walking with the victim, he reported the victim lunged at him. He responded by hitting her with the metal bar before stabbing her in the neck.
Police brief
The first police on the scene found the Defendant dripping wet and covered in blood over his chest, face, arm, hands and legs. When told to lay on the ground, the Defendant began pointing to his face yelling in an agitated state “look at what she did to me”. He was recorded as saying “she’s got a hard head”, “look at what she did to me”, “I had to take her out cold”. He also said “she’s one of the stolen generation”, “she stole the papers from the Vietnam War”, and “she wouldn’t stop coming at me so I used an army technique and took out the main artery of her neck”. The Defendant spoke rapidly, ranting and making statements throughout his detention at the scene. Other officers described the Defendant as speaking very fast and talking about Aboriginal people and the stolen generation.
A number of people were interviewed by police following the incident. Dayna Wells lived adjacent to the scene. She reported hearing sharp sudden thumps coming from the rear of her house. She then heard a female screaming for help. She also heard a male shouting something similar to “help, someone help”. She left her house and ran down the footpath. She observed a caucasian female with tanned skin lying on the ground. The back of her head was covered in blood.
Ms Wells heard a male say something like “she’s crazy, she’s insane” and “I had to do it”. Both his hands were covered in blood almost to his elbows. He had hold of a length of steel pipe. He pointed to the woman and said “don’t you see I had to do it”. He kept repeating this, in a frantic and insistent tone. He also said “I have to kill her, it’s the only way”. He was becoming more distressed at this time. He said “I know I will go to jail for this but I had to do it, she knew things”.
Ms Wells described the male as “crazy”. He was becoming increasingly agitated and moved closer. He said “she was Aboriginal and had to die” and “she knew stuff about Vietnam”. He pointed to the woman and said “see she’s still alive, I have to finish it or she will come back”. He said he needed a knife. When Ms Wells started to leave the scene he said “look you can’t go, we have to finish this”, “don’t go, don’t call the police”. He also said “I know where to cut, I have to cut her artery” and “I have to kill her”. Ms Wells then returned to her house.
Margaret Wells is the mother of Dayna Wells. She recalled hearing a male and a female’s voice walking down the walkway. They stopped on the walkway behind the houses. The male’s voice become louder. She heard him say “you’ve got to trust me”. This was yelled several times. She then heard thumping or whacking and the female call out in a way that made her think she was in distress.
Ms Wells called out “what’s going on?” A young man carrying something in his hand that was about 14 inches long jumped onto the fence and said “help me, help me, she’s gone mad, don’t go inside, help me”. Ms Wells went inside and locked the doors. The male called out “don’t lock the door”. She then telephoned triple zero. The male continued screaming “help me, help me”. She subsequently heard her daughter frantically yelling “let me in, let me in” from the front door area. As she did so she could hear a male voice behind her. He was yelling “don’t go in, help me, she is crazy, she knows where you live and she is going to kill you”.
Ross Edwards lived adjacent to the Wells’ home. He heard loud talking and a female yell out “help” two or three times. He observed the young female from next door and a male. The female was trying to get into the front door of her home. The male was in front of her. He looked very agitated, waving his arms and stepping backwards and forwards. He then observed the female go inside the house. The male said something, picked up what looked like a piece of timber beside the fence, and ran down the laneway.
Patricia Lecarre lives adjacent to the scene. She recalled hearing shouting or a strong tone of voice. It was a male voice. She went outside. At that stage it was very quiet. She then heard a big heavy splash in the creek. She saw a male come out of the creek. The male was shouting, “ranting and raving and it sounded to me like he was high”.
Karen Taylor was driving in the area on the day of the alleged offence. She observed a female and male standing on the footpath area. Another male was standing nearby. Her attention was drawn to them as the male was appearing aggressive towards the female. He was “right up in the female’s face”. He appeared extremely agitated. His hands were gesturing towards her. The female was quite passive. She appeared to be “just taking the abuse”.
Kositino Naitoko knows the Defendant. He was aware the Defendant was a drug user. He knew he injected speed. On the day of the alleged offence the Defendant arrived at Mr Naitoko’s home asking him to go back to his house. The Defendant was rambling about an army guy coming to get him. The Defendant was with a female. Both the Defendant and the female seemed to be heavily drug affected.
Mr Naitoko, the Defendant and the female went to the Defendant’s mother’s house. He remained outside whilst the Defendant went inside. He could hear the Defendant “going off” at his mum. The Defendant was telling his mother she was in danger because an army bloke was coming to get them. The Defendant’s mother told the Defendant he needed some sleep but the Defendant kept going on with his story. Eventually his mother left the room.
Mr Naitoko went inside the house. The Defendant picked up a metal dumbbell bar. The female said something to the Defendant about blackfellows. The Defendant changed, and started to yell “if you want to see some blackfellows I’ll take you down the road and I’ll show you some real blackfellows”. Mr Naitoko thought the female said she didn’t trust blackfellows. The Defendant kept rambling on and the female said “do you hit women”. The Defendant then took the bar and hit himself in the head. He didn’t seem to do any damage, although he hit himself very hard.
Mr Naitoko said the Defendant and the female then went outside. The Defendant was waving the metal bar around, and was trying to get the female to go to another house. Mr Naitoko asked the Defendant to talk to him. The Defendant looked around, and said “wait”, and turned and walked away with the female. He had his arm around her as they walked down the street. Mr Naitoko went back inside the house and told the Defendant’s brother “I think your brother is fucked in the head”. He said to the brother “I think he is going to knock that girl”. The brother said “I wouldn’t be surprised if he does”. Mr Naitoko had never seen the Defendant behaving in that way.
Ian Doyle, knew the defendant for about two years prior to the alleged offence. The Defendant was using “a little bit of subetex and heroin” when they first met but the Defendant then went through stages of being totally clean. Until shortly prior to the offence, the Defendant was “pretty well balanced and lived for his kids”. On Anzac Day 2012, the Defendant sent a text saying he was coming around. At about 3.00 am the next morning the Defendant turned up at his house. He was on some sort of drug. He was talking at a million miles an hour and in riddles, saying things like “I’m living on borrowed time” and “I’ve seen the future”.
Mr Doyle said after that visit, he saw the Defendant about three further times. On these occasions the Defendant was different. He was really scared saying an army person was going to come and hurt the people he cared about. The Defendant was rambling, jumping around taking his clothes off and talking about his car keys being bugged. He thought everyone was trying to hurt him.
On the night of 1 May 2012, the Defendant came to Mr Doyle’s house with a female. When the Defendant arrived he was “jumping around rambling weird things”. Mr Doyle thought he had got to the stage where “he was really sick in the head”. The female was also rambling, validating what the Defendant was saying which Mr Doyle thought was rubbish. He ended up locking the Defendant out of the house. The Defendant remained outside with the female talking and dancing around, rambling “psycho babble, just acting crazy”.
In the morning, Mr Doyle let the Defendant and the female into the his house. The Defendant had with him an old machete which he had had in his possession since the previous week. It had “never left his side”. Mr Doyle believed he had it for protection as he thought people were after him. He had asked Mr Doyle the night before to “cut his head off with the machete”. After showering, the Defendant was adamant if they all did not leave the house they were going to die. It was not that the Defendant was going to kill them. It was that “this person from the army or the stolen generation” was going to come and kill them.
Mr Doyle and his family drove to the house of the Defendant’s mother. A short time later, the Defendant arrived with the female and another male. The Defendant started “to go right off” at his mother. He became angry with Mr Doyle for bringing his car keys inside the house. The Defendant believed they were bugged, and threw them in the pool. Mr Doyle then left. When he arrived home he received a telephone call from the Defendant’s ex-partner. She told him the Defendant had telephoned and accused her of cheating on him. The Defendant also said the stolen generation were on their way to kill her and the children and to chop them up and feed them to some pigs. Mr Doyle told the ex-partner the Defendant had “gone off the deep end”.
Sacha Deuchars is the partner of Mr Doyle. She has known the Defendant for approximately 18 months. She was unaware the Defendant had a problem with or was a regular user of hard drugs, other than some cannabis. On Anzac Day 2012, she let the Defendant into the house in the middle of the night. He seemed very different and completely out of character. He was crying, appeared “really freaked”, and was physically shaking. The Defendant told her he had been at an Anzac Day service at the army barracks with an army guy and had “stuffed up”. He had been asked to leave the barracks. The Defendant was convinced that because he had done the wrong thing the army guy was now after him and going to kill him and his family. He tried to show her some text messages from the man.
Ms Deuchars said after that night the Defendant regularly came over to their house. His behaviour was becoming more and more erratic and psychotic. He was convinced the army guys were going to kill him. He mentioned he had tried to kill himself once. He was also raving about the stolen generation and some Aboriginals in the area who were white. They were taking female family members, raping them, bashing them and then cutting them up and feeding them to some pigs. He showed her a photo on his phone of a pig in a barn. No matter what she and Mr Doyle told him, the Defendant could not be convinced it was not true.
On the night before the alleged offence, the Defendant came to their house. Mr Doyle told her to stay in the room. He was going to get rid of the Defendant as he had had enough of his ranting and raving and rocking up at the house at all hours. She later saw the Defendant pacing around the house carrying “his big machete”. She had seen the machete in the days before when he had come to the house. The Defendant kept saying he needed to arm himself because the army people that were after him had high powered weapons they were going to use against him. She noticed a female in the house who she had not seen before. She went back to bed but was awoken during the evening by their talking.
When Ms Deuchars arose in the morning the Defendant was inside the house. He was crying, pacing, yelling and screaming loudly that they had to get out of the house because the army people were coming to get them. She told him to leave and then they wouldn’t come to get them but the Defendant was adamant they all had to leave the house and go to his mother’s house where they would be safe. The female did not seem perturbed by the Defendant’s actions.
Eventually Mr Doyle, Ms Deuchars and the children travelled to the Defendant’s mother’s house. About ten minutes after their arrival the Defendant and the female arrived at the house. The Defendant started yelling and swearing at his mother, which Ms Deuchars said was totally out of character. At one point the Defendant threw the car keys into the pool because he thought they were bugged. Mr Doyle, Ms Deuchars and the children then left for home.
Barbara Murray is the Defendant’s mother. On Anzac Day 2012, the Defendant came to her house talking about something to do with Anzac Day and armies. It did not make any sense. The Defendant also came to her home on the morning of 2 May 2012. Prior to his arrival, the Defendant’s ex-partner had telephoned her and said the Defendant had told her to get out of the house as people were coming to get her. Ms Murray said the Defendant had told her the same thing a week or so ago but she just ignored him as he was off his tree.
Ms Murray said later that morning Mr Doyle and his family arrived at her house. Mr Doyle told her the Defendant had forced him out of his home because people were coming to get them. She told him the Defendant was “off his tree”. Within a few minutes the Defendant arrived at her home. The Defendant was accompanied by a female and another male. The Defendant told her he had been “getting all these signs”. He said his grandfather (who is deceased) had been talking to him and was warning and protecting him. Another deceased person had also been talking to him and protecting him.
Ms Murray said the Defendant also said people were coming to get them. He referred to black men having been stolen and made white, and that they were going to come and get us and make us all white. They were going to take all the white women and impregnate them. They had pig farms that will take care of everybody else. The Defendant also said the SAS and army were coming to get them and had keys to the house. He again said he was seeing signs. He spoke about the female, saying he had met her last night. He said she had a tattoo and it’s all a sign. The Defendant’s mother told the other male to go home as her son was “off his tree and he needs a sleep”. The Defendant replied he needed the male as he had the Defendant’s “back”.
The Defendant’s brother said he saw the Defendant on the morning of 29 April 2012. He looked like he had been awake all night. The Defendant said something about going to the beach for a swim and about wanting to see his daughters as he missed them. The Defendant then left. He did not see the Defendant again until after the alleged offence.
Raymond Chrystal had known the Defendant for around seven or eight years. He last saw him about two weeks before the alleged offence. He described him as appearing “pretty normal and in good spirits”. He thought the Defendant was sad about the breakup with his partner but did not think he was suffering from any mental illnesses. He did not know if he was using drugs or drinking heavily.
Rhiannon Meldrum is the former partner of the Defendant. She first met him in September 2009. She fell pregnant and they commenced living together. During the pregnancy they began to fight because the Defendant was using heroin. He was “always off his head and angry”. He would yell, swear and abuse her. The Defendant subsequently went to jail in 2010. On his release their relationship resumed and the Defendant was not using drugs.
However, in early 2011 she noticed a change in the Defendant. He was back to being angry again. She believed he was using drugs. Ms Meldrum said in December 2011 she had a conversation with the Defendant about his drug use. At that time he was withdrawing from heroin. In January 2012, he told her he was using ice. He seemed to use it a lot. He would stand over her and abuse and threaten her.
On 14 April 2012, the Defendant contacted Ms Meldrum and asked to see the children. When she arrived at his mother’s house the Defendant was in a bad mood. A physical altercation occurred and the Defendant threatened her. Police were called and a domestic violence order application was made on her behalf. In the week prior to 2 May 2012, the Defendant rang her and left text messages saying she was an evil person trying to get him killed.
On 2 May 2012, the Defendant rang Ms Meldrum and told her she needed to leave the house for about five hours. He sounded so angry and worried he was almost crying. She could hear distress in his voice. He told her someone was after him. He said he was walking to his mother’s house to get her out of the house. A woman then spoke on the telephone. She sounded like she was on drugs. The Defendant asked her to tell Ms Meldrum to get out of the house. The woman did so. The Defendant then put another male on the telephone but he did not want to speak to her. She then hung up the telephone.
Ms Meldrum rang the Defendant’s mother and told her about the conversation. The Defendant’s mother told her not to worry about it. She talked about the Defendant being on drugs. Ms Meldrum said the Defendant said he had been speaking to Daniel Brown’s father. The Defendant’s mother said he was dead. Ms Meldrum telephoned the Defendant and told him Daniel Brown’s father was dead. The Defendant said he had spoken to him from underground. He also said something about Aboriginals and that he had done his Australian history. The Defendant was not making any sense.
Later that morning Ms Meldrum sent the Defendant’s mother a text message suggesting for everyone’s safety and for the Defendant’s own good he be admitted to a mental hospital as soon as possible. She said the Defendant “would be thankful in the long run, the stuff he has been on the last few months has really sent him crazy, he needs help, have you seen him this morning”. She did not receive a message in reply.
Celestine Gow was an ambulance officer despatched to the scene of the alleged offence. Upon arrival, she noted the Defendant’s behaviour was bizarre and agitated, consistent with a drug affected person. She subsequently undertook a full assessment at the Pine Rivers Watch House. The Defendant was speaking in unnatural thought patterns. The Defendant was agitated and had bizarre and irrational thoughts. She recommended the Defendant receive hospital attention. The Defendant was then transported to the Prince Charles Hospital.
The Defendant was spoken to by police for an extended period. He said the victim was going to kill his whole family and she tried to kill him. He told police he could show them a farm that would show what he was saying was true. He made reference to a name around the victim’s neck having been erased. He reiterated he had killed the victim because she was part of the stolen generation. He referred to a pig farm in Australia and said the victim had killed a Vietnam soldier.
Reporting psychiatrists
Dr Scott
Dr Scott cared for the Defendant at High Secure, and supervised his ongoing treatment when back in custody. In a Section 238 report, Dr Scott opined the Defendant was intoxicated as a consequence of the ingestion of amphetamines at the time of the alleged offence. He noted the Defendant had a positive urine drug screen 48 hours after the alleged offence. It was positive for metabolites of amphetamine-like substances and cannabis.
Dr Scott opined the Defendant was suffering from a mental disease at the time of the alleged offence. That mental disease, methamphetamine induced psychosis, deprived the Defendant of the capacity to know he ought not do the act in question. However, in Dr Scott’s opinion, the Defendant would not have been deprived of that capacity but for the continuing effects on his mental state of the methamphetamine he had voluntarily consumed prior to the alleged offence. The Defendant would not have even had a substantial impairment of that capacity but for the continuing effects of that amphetamine.
Dr Mann
The Defendant was interviewed by Dr Mann on 30 November 2012, almost seven months after the alleged offence. At that time the Defendant reported having ceased his prescribed anti-psychotic medication because of its sedative effects. Dr Mann noted he was frightened, depressed and considering suicide which was being encouraged by voices. Dr Mann elicited other psychotic symptoms, including delusions of reference and a suspicion other people could read his mind.
In respect of the alleged offence, the Defendant reported hearing God’s voice in the weeks before the alleged offence. He described delusions and beliefs the victim had plans to kill him. When he was walking with the victim she had lunged at him and said she would rape him. “God” told him to kill her. She was the leader of the “stolen generation”. He believed the victim was going to attack his family. He perceived the victim as being a “white-black one”.
Dr Mann opined the Defendant was suffering from an amphetamine induced psychotic disorder at the time of the alleged offence. The fact the Defendant was continuing to exhibit psychotic symptoms about seven months after last abusing amphetamines may suggest he had an underlying psychotic disorder, although those symptoms may be explained by residual symptoms of his amphetamine induced psychotic disorder.
In Dr Mann’s opinion, the Defendant was suffering psychotic symptoms at the time of the alleged offence. These symptoms included paranoid delusions and auditory hallucinations which were likely to have been precipitated or worsened by the amphetamines. Whilst these symptoms were not sufficient to completely deprive the defendant of the capacities to know the nature of what he was doing, and to control his actions, the Defendant’s delusional beliefs about the victim wanting to kill him, and being part of an Aboriginal conspiracy, and his other psychotic experiences did completely deprive him of the ability to understand from a moral perspective that he ought not do the act. However, intoxication from amphetamines was an important factor contributing to this deprivation.
Dr Mann further opined that as a consequence of his amphetamine induced psychosis, the Defendant was suffering from an abnormality of mind which caused a substantial impairment of his capacity to know he ought not do the act. His psychosis alone was sufficient to cause the abnormality of mind and substantial impairment. This abnormality of mind and substantial impairment was independent of any intoxication. Accordingly, Dr Mann supported a finding of diminished responsibility. Dr Mann further opined the Defendant was temporarily unfit for trial, having regard to his ongoing psychotic symptoms.
Dr Schramm
The Defendant was interviewed by Dr Schramm in late June 2013, almost 14 months after the alleged offence. The Defendant gave a generally similar account of the day of the alleged offence. However, he gave a history of psychotic symptoms being present long before the weeks leading up to the alleged offence. He also reported he had exaggerated his use of amphetamines in the months prior to the alleged offence. He did so believing it would assist his ability to be released back into the community.
Dr Schramm opined the Defendant, on balance, had an underlying mental illness, which he diagnosed as schizophrenia. His ongoing psychosis was not dependent on being in a state of intoxication. However, there was little doubt the use of amphetamines and, to a lesser extent, cannabis would have “greatly fanned the flames” of the Defendant’s psychosis. He doubts the Defendant would have become so unwell if he had not returned to the use of amphetamines.
Whilst Dr Schramm opined the Defendant’s mental disease, even without acute intoxication, would have been sufficient to substantially impair his ability to know that what he was doing was wrong, the Defendant’s underlying mental disease alone, in the absence of the effects of intoxication, would not have been enough to completely deprive the Defendant of his capacity to know he ought not do the act. Dr Schramm opined the Defendant was temporarily unfit for trial.
Dr van de Hoef
The Defendant was interviewed by Dr van de Hoef on 21 August 2013, some 15 months after the alleged offence. In that interview, the Defendant reported having had an intravenous dose of an illicit drug at about 7.00 pm the night before the alleged offence (about 14 and a half hours earlier). He did not know what the drug was but “it felt different” from the previous methamphetamine he had been injecting himself with for many months prior to the alleged offence.
The Defendant further reported that in the period prior to his arrest he had been “too scared to sleep” and had lost weight. Dr van de Hoef noted his account of the events leading up to his arrest “was remarkable for its paranoid delusional content” and for the accompanying emotional distress. He reported a series of adverse events which had led to his “losing the plot” in April and May 2012. The Defendant reported being evicted from the Anzac Day ceremony in the week before the alleged offence for breaching security by carrying weapons on his person. During the trip home from that event the Defendant reported seeing items which were consistent with his delusions.
The Defendant said he thought he had been receiving personal messages from the television for some time. He described becoming increasingly fearful and pre-occupied with ideas and anxieties over perhaps the preceding two years. He feared and believed he had found proof that he and his family were at risk of capture by the “stolen generation” (meaning indigenous people with lighter skin colour) and of being fed to pigs at a farm run by them.
The Defendant reported that on the morning of the alleged offence he telephoned his former partner and accused her of being a witch. He advised her to leave the house to avoid capture by the stolen generation. He subsequently went with the victim to a park, a fast food outlet, and his mother’s residence. He then went to a park near the scene of the alleged offence. He reported hearing voices from deceased persons telling him to attack the victim. He could “feel God in control”. He believed he had to kill the victim. Otherwise he was “fucked” and would be killed.
Dr van de Hoef opined that having regard to the Defendant’s ongoing significant psychotic symptoms many, months after the Defendant had ceased using amphetamines, the Defendant suffered from schizophrenia. This mental disease was severe with chronic persistent symptoms characterised by thought disorder and bizarre systematised delusions of persecution and very dangerous command hallucinations from multiple voices. He remained very psychotic.
In Dr van de Hoef’s opinion, at the time of the alleged offence the Defendant was under the influence of, and intoxicated by, drugs. However, there was abundant information he was already floridly psychotic, and had been for at least three months prior to his arrest. This previously undiagnosed and untreated, persistent psychotic illness is independent of any illicit drug use, and caused him to be deprived of the capacity to know he ought not do the act and, possibly, of the capacity to control his actions.
Dr van de Hoef also opined that the Defendant was suffering from a severe untreated psychotic illness which constituted an abnormality of mind, and which substantially impaired his capacity to know he ought not do the act. In her opinion, the Defendant was unfit for trial. Such unfitness was of a temporary nature.
Evidence
Dr Scott, Dr van de Hoef and Dr Schramm each gave evidence at the hearing. Each maintained the opinions expressed in their reports.
Dr Scott explained the relevance of intoxication:
“The examination findings were consistent with a psychosis. The history that he provided, [indistinct] information and the results of a drug screen confirmed that at the time of the events that he was intoxicated with methamphetamines … He was grossly intoxicated with amphetamines and that was confirmed on dural urine screens and it was also consistent with his self-report.”
Dr van de Hoef said, of the extent intoxication by drug influenced his mind:
“All I can fairly firmly say is that I was so struck by how psychotic this man was 17 months later, in custody, presumably without any influence from illicit or other substances of abuse, that I thought that many of the symptoms, when I interviewed him, were very much like the ones that he had, and the signs he had when I interviewed him were very much like the signs he exhibited at the time of his arrest. I therefore concluded that he had and has a very serious psychotic illness and that he had it at the time he was arrested too. So I have drawn the inference that regardless of intoxication, he was a very, very mentally disturbed man at the time of his arrest and he was still that way when I interviewed him months and months and months later after treatment, after forced abstinence. So that led me to conclude that even if he hadn’t been intoxicated with whatever he was intoxicated with that night, he was still deprived of relevant capacities.”
Dr van de Hoef agreed the Defendant had a long history of amphetamine use, and this history suggests his psychosis manifests with amphetamines. She also agreed amphetamine use would make any underlying psychosis worse.
Dr Schramm explained the difference between his opinion and that of Dr van de Hoef’s in respect of the significance of intoxication:
“Where I do disagree possibly with Dr van de Hoef’s opinion … is when it comes to the role of the intoxicant in completely depriving Mr Murray of the capacity to know that what he was doing was wrong. I’d suggest that that’s a reasonable hypothesis, it’s just that I couldn’t convince myself that it was more likely than not that he would have been deprived if it were not for having consumed those amphetamines … the night before and the ongoing acute effects of the amphetamines.”
Dr Schramm later explained the difference between his opinion in respect of the Defendant’s underlying psychosis alone substantially impairing his capacity to know that he ought not to do the act but not being sufficient alone to deprive the Defendant of that capacity:
“I am satisfied that if you take the acute effects of the intoxication out of the equation that his illness at the time would have been enough to substantially impair his ability to reason. I think that it’s a reasonable hypothesis to say that if you take intoxication out of the mix that his extant delusional thinking may have completely deprived him. It’s just that I couldn’t bring myself to be so confident as to say that it was more likely than not that he was completely deprived. … He, by his account to me, considered things delusionally even when he wasn’t acutely intoxicated, on amphetamines in those weeks leading up to that. So I thought that that was enough to suggest very strongly that he would have been substantially impaired in his ability to reason about the wrongness. But he – he did not act in a dangerous way until he had that extra effect of – of having amphetamines in his system … the night before.”
Submissions
The Defendant submits the Court would accept the evidence of Dr Schramm and Dr van de Hoef that the Defendant suffers schizophrenia, and that his persistent delusional system about the stolen generation is a function of this illness. Whilst these delusions developed in a setting of heavy amphetamine use, the Defendant has an enduring and bizarre delusional belief which has continued to this day. This enduring delusional system is consistent with an underlying schizophrenia of sufficient magnitude that that illness alone would have deprived him of one of the requisite capacities, or substantially impaired that capacity in the absence of intoxication. The Defendant relies on R v Clough,[1] and Re LIH[2] and Re Hatch.[3]
[1][2010] QCA 120; (2010) 200 A Crim R 140.
[2][2002] QMHC 14 at [21].
[3](2001) QMHT at [14].
The Defendant submits any deprivation of capacity was not as a consequence of a transient delusional system informed by intoxication. The Defendant’s core delusional belief, which was operative at the time of the alleged offence, was due to his underlying mental illness. Further, the objective evidence supports a conclusion that a remark by the alleged victim about Aborigines on the morning of the alleged offence triggered the Defendant to act on his persistent delusional system. Any ongoing intoxication made no contribution to his lethal response.
The Defendant further submits that if the Court is not satisfied the Defendant was suffering from unsoundness of mind, the evidence of Dr Mann, Dr Schramm and Dr van de Hoef supports a conclusion the Defendant’s underlying schizophrenia alone was of itself sufficient to impair one of the Defendant’s relevant capacities such as to constitute diminished responsibility.
The Director submits the relevant issue in respect of intoxication is whether the Defendant’s state of mind at the time of the alleged offence resulted, to any extent, from intoxication.[4] That conclusion is not affected by the decision in R v Clough. On the evidence, the state of mind of the Defendant was, to some extent, the result of intentional intoxication. Defences of unsoundness of mind, or diminished responsibility, are not open.
[4]Reid v DPP & Ors [2008] QCA 123 at [30]-[32].
The Director of Public Prosecutions submits the objective evidence does not support a conclusion any deprivation, or even impairment, of the relevant capacity was as a consequence of the Defendant’s underlying illness alone. Any remark by the alleged victim about “blackfellows” was not sufficiently temporally connected to the alleged actions of the Defendant such as to support a causal connection between the remark and the response. The reporting psychiatrists cautioned against finding such a causal link. Further, Mr Naitoko states that after that remark, the Defendant and the victim walked away together in a non-aggressive manner.
Assisting psychiatrists
Dr Varghese advised I ought to accept the Defendant was floridly psychotic at the time of the alleged offence. I also should accept this psychosis deprived the Defendant of the capacity to know the wrongness of the act, at least, and possibly of the capacity to control his actions.
As to diagnosis, Dr Varghese advised the Defendant’s psychosis was not an acute amphetamine psychosis and is not even an amphetamine induced psychosis. Such a psychosis is unlikely to persist beyond a few months after the cessation of the drug use. Accordingly, Dr Varghese advised I ought to accept the evidence of Dr van de Hoef and Dr Schramm that the Defendant suffered from an underlying mental illness, namely schizophrenia.
As to the genesis of that underlying mental illness, Dr Varghese advised that on the clinical evidence, the Defendant had an amphetamine induced schizophrenia. There was scant and only equivocal evidence of any psychotic symptoms being present before the Defendant commenced using amphetamines on a regular basis. That being so, it was “difficult to advise that intoxication was not a factor, particularly as amphetamine was present in the urine and blood tests”. The effects of amphetamine must have been present at the material time.
Dr Varghese advised a delusion of itself does not necessarily affect behaviour. It is acting on delusions which brings about crime. Whilst the Defendant was delusional at the time of the alleged offence, the amphetamines would have intensified the belief leading to that behaviour, and also contributed to the acting on that belief. Dr Varghese concluded:
“In my mind it is difficult to dismiss the effect of amphetamine, a drug known to exacerbate schizophrenia and, moreover, to induce schizophrenia-like symptoms even on its own. To use Dr Schramm’s analogy, its like throwing petrol on a fire. It also seems to me that this would apply - this advice would apply even if the schizophrenia was in evidence prior to the period of amphetamine use.”
With respect to diminished responsibility, Dr Varghese advised that while there was impairment of the requisite capacity, it was again difficult to escape the effects of amphetamine impacting on the conversion of a general delusional system into a specific delusion involving the victim.
As to fitness for trial, Dr Varghese advised there was clinical evidence the Defendant’s schizophrenia was currently being under-treated, and he required hospitalisation. Against that background, Dr Varghese advised the Defendant is currently temporarily unfit for trial. Any question of unfitness should be considered after further treatment.
Dr Harden also advised the Defendant has schizophrenia. That psychosis appears to have been present from at least Easter 2012, about one month before the alleged offence. Whilst it is unclear whether there were symptoms present earlier than this time, and there is conflicting information as to his use of amphetamines, there is clear evidence there was regular use of intravenous amphetamines in the period preceding the alleged offence. Further, the Defendant received a single dose of intravenous drug of some kind, most likely amphetamine, about 15 hours prior to the alleged offence.
Dr Harden advised it is clinically most likely that the Defendant, who had a predisposition to developing a psychotic illness, developed such an illness in the context of, and triggered by, the use of amphetamines. Although the Defendant’s psychotic illness was probably triggered by the amphetamine use, and possibly maintained by amphetamine use, the Defendant’s ongoing underlying psychotic illness was slightly more likely than not to have deprived him, at least, of one of the relevant capacities at the time of the alleged offence, even in the absence of the additional doses of methamphetamine.
As to fitness for trial, Dr Harden advised the Defendant remained very unwell, and very dangerous to himself and others. He requires aggressive psychiatric treatment. He is not currently fit for trial on the basis of his ongoing psychotic illness and delusional beliefs. His unfitness should properly be viewed as temporary, and be reviewed after treatment.
Applicable principles
Unsoundness of mind
The Mental Health Act 2000 (“the Act”) defines “unsoundness of mind” as meaning “the state of mental disease or natural mental infirmity described in the Criminal Code, s 27, but does not include a state of mind resulting, to any extent, from intentional intoxication or stupefaction alone or in combination with some other agent at or about the time of the alleged offence”.
Section 27 of the Criminal Code 1899 provides:
“(1)a person is not criminally responsible for an action or omission if at the time of doing the act or making the omission the person is in such a state of mental disease or natural mental infirmity as to deprive the person of capacity to understand what the person is doing, or of the capacity to control the person’s actions, or of capacity to know that the person ought not to do the act or make the omission;
(2)a person whose mind, at the time of the person’s doing or omitting to do an act is affected by delusions on some specific matter or matters, but who is not otherwise entitled to the benefit of subsection (1) is criminally responsible for the act or omission to the same extent as if the real state of things had been such as the person was induced by the delusions to believe to exist.”
A patient who has a mental disease which deprives him of one of the capacities in section 27 is not denied a defence of unsoundness of mind merely because the patient was intoxicated. The issue is whether the relevant state of mind resulted, to any extent, from intentional intoxication. Where possible, the effects of psychosis are to be separated from intoxication. If it is clear the psychosis alone is of sufficient severity to make s 27 applicable, the accompanying intoxication is irrelevant.[5]
[5]Re Hatch [2001] QMHT at [14], cited with approval in R v Clough [2009] QSC 231 at [55].
The state of mind referred to in the definition of “unsound mind” is a reference to the absence of capacity caused by mental disease. In Re LIH[6] Wilson J said:
“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. This part of the definition recognises that there may be more than one cause of a deprivation of capacity. The other cause (or causes) may be intentional intoxication or something else. 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 an extent, from …’.
Mental illness may deprive someone of one of the capacities. Another capacity may be adversely affected by mental illness or by intoxication or by a combination of mental illness and intoxication (whether or not the intoxication is combined with some third factor). The extent (whether deprivation or mere impairment) and the cause or causes of the adverse effect of the second capacity cannot derogate from a finding of unsoundness of mind based on the deprivation of the first capacity.”
[6][2002] QMHC 14 at [14]-[15].
The test for the capacity to know wrongness was enunciated in R v Stapleton:[7]
“A case of this description must turn very largely upon the jury’s appreciation of what amounts to knowledge of the nature and quality of the act and of its wrongness. For it is evident that a jury although satisfied that no capacity existed at all in the particular accused to reason at all may think that at the back of it all was an awareness of the nature of the act and of the fact that other people might regard it as wrong more especially if that means regarded by the law as wrong. That would not lead to a conviction if the jury understands that, given a disease disorder or defect of reason, then it is enough if it so governed the faculties at the time of the commission of the act that the accused was incapable of reasoning with some moderate degree of calmness as to the wrongness of the act or of comprehending the nature or significance of the act of killing. In R v Porter this was expressed by Dixon J as follows:
‘The question is whether he was able to appreciate the wrongness of the particular act he was doing at that particular time. Could this man be said to know in this sense whether his act was wrong if through a disease or defect or disorder of the mind he could not think rationally of the reasons which to ordinary people make that act right or wrong? If through the disordered condition of the mind he could not reason about the matter with a moderate degree of sense and composure it may be said that he could not know that what he was doing was wrong.’” (Citations omitted)
The ability to think rationally of the reasons includes all of the different reasons relevant to the rightness or wrongness of the action.[8]
[7](1952) 86 CLR 358 at 367.
[8]R v Davis (1881) 14 Cox CC 563 at 564.
Diminished responsibility
The Act defines diminished responsibility as the state of abnormality of the mind described in s 304A of the Criminal Code. Section 304A provides:
“When a person who unlawfully kills another under circumstances which, but for the provisions of this section, would constitute murder, is at the time of doing the act or making the omission which causes death in such a state of abnormality of mind (whether arising from a condition of arrested or retarded development of mind or inherent causes or induced by disease or injury) as substantially to impair the person’s capacity to understand what the person is doing, or the person’s capacity to control the person’s actions, or the person’s capacity to know that the person ought not to do the act or make the omission, the person is guilty of manslaughter only.”
Discussion
Each of the reporting psychiatrists opine that at the time of the alleged offence the Defendant was floridly psychotic. I accept the Defendant was floridly psychotic at the time of the alleged offence.
The symptoms of that psychosis included delusional beliefs about the stolen generation and persons wanting to kill him. The evidence of the Defendant’s mother, ex-partner and friends supports a conclusion the Defendant had been subject to that delusional system of beliefs from around Easter 2012. I accept that delusional belief system was present from Easter 2012.
Whilst the Defendant has provided, in the interviews with some of the reporting psychiatrists, a history consistent with such a delusional belief system existing well before Easter 2012, there is little objective evidence to support that history. The Defendant’s mother, his ex-partner and his friends all report observing changes in the Defendant around that time. These changes coincided with heavy intravenous use of amphetamines. I do not accept the defendant’s delusional belief system was present before Easter 2012.
There is clear evidence the Defendant received drugs intravenously on the evening before the alleged offence. Drug screen urine test results subsequent to his arrest confirm the presence of metabolites consistent with the injection of amphetamines. I am satisfied, on the balance of probabilities, the drug injected by the Defendant on the evening before the alleged offence was amphetamines. I accept the Defendant was still suffering the effects of intoxication at the time of the alleged offence.
That finding is important when considering the opinions expressed by the reporting psychiatrists. Its significance was explained by Dr Schramm in evidence:
“The way that I see Mr Murray and a lot of people who use substances and who developed psychotic illnesses along these lines … I use the analogy of a bush fire or a scrub fire – that there are some people that have got a predisposition to being psychotic. If you like, there’s a lot of dry leaves on the paddock and I think we have some evidence of that, in that Mr Murray’s brother has – apparently has schizophrenia and his maternal uncle and aunt have got psychotic illnesses as well. Another predisposing fact is the fact he was using psychotogenic substances in his teenage years, mostly cannabis but also amphetamines. That’s going to affect how his brain develops and make – makes him predisposed to becoming psychotic. You then come along and you have petrol – a can of petrol – in the form of methamphetamine or cannabis and, if there are little embers around and there, as he told me there were – and there – they did seem to be embers because they weren’t so – so florid – the flames went so high – that he was drawing attention to himself that he was getting admitted to hospital. He did say that there were things like, you know, every now and then he would tell some of the other Brown boys – sons of Norman Brown – that he was having conversations with their father who passed away and that they were saying he was crazy, so – that’s – at least that’s what he told me – that you – you come along with the petrol of amphetamine and you’re throwing that on and their throwing that onto the embers and then huge flames erupt and that lasts for a while. Sometimes, that may – that lasts only for a few hours; sometimes that could last for weeks but it also predisposes the paddock – and this is where the analogy falls down a bit – it, kind of, creates more fuel, if you like and people who – who have become psychotic for whatever reason including psychotic – the exposure amphetamines, they are more likely to become psychotic again upon less stimulation.”
Whilst the analogy adopted by Dr Schramm may not be totally apt, I found his evidence highly persuasive. It placed into context the significance of the ingestion of intravenous amphetamines in the weeks leading up to the alleged offence, and the use of amphetamines on the night prior to the alleged offence.
Dr Schramm elaborated on the importance of the presence of the intoxicating substance when discussing whether the Defendant had suffered a substantial impairment of the capacity to know wrong. Dr Schramm said:
“I am satisfied that if you take the acute effects of the intoxication out of the equation that his illness at the time would have been enough to substantially impair his ability to reason. I think that it’s a reasonable hypothesis to say that if you take intoxication out of the mix that his extant delusional thinking may have completely deprived him. It’s just that I couldn’t bring myself to be so confident as to say that it was more likely than not that he was completely deprived.”
When asked if there was a fact or matter that made him delineate between the contribution of his illness in that way to the state of deprivation of capacity, Dr Schramm said:
“He, by his account to me, considered things delusionally even when he wasn’t acutely intoxicated, on amphetamines in those weeks leading up to that. So I thought that that was enough to suggest very strongly that he would have been substantially impaired in his ability to reason about the wrongness. But he did not act in a dangerous way until he had that extra effect of – of having amphetamines in his system … the night before.”
This analysis by Dr Schramm carefully considered the Defendant’s conduct in the lead up to the alleged offence, including evidence of delusional thinking in the weeks before, but recognised the significance of the presence of intravenous amphetamines taken the night before the alleged offence.
By contrast, I did not find Dr van de Hoef’s evidence on this aspect persuasive. Her evidence, whilst emphasising the importance of the ongoing psychotic state some 17 months after the alleged offence, failed to give sufficient weight to the presence of the intravenous drug consumed the night before. Whilst she opined that, on balance, the severity and intensity of the psychotic illness present on the day of the alleged offence was sufficient alone to deprive him of those capacities even in the absence of intoxication, Dr van de Hoef accepted in evidence it was difficult to divorce the role of the intoxicant in the deprivation of the relevant capacities.
I also did not find Dr Scott’s evidence persuasive. Dr Scott was unable to explain the basis for the Defendant’s ongoing symptomatology and the reasons for his continuing medications. Further, it was apparent there has been a complete breakdown in the therapeutic relationship between Dr Scott and the Defendant.
Having carefully considered the evidence of the reporting psychiatrists, I accept and prefer the opinion of Dr Schramm. I am satisfied, on the balance of probabilities, the Defendant’s deprivation of the relevant capacity at the time of the alleged offence resulted, to some extent, from the ingestion of intoxicating substances. The Defendant’s underlying psychosis alone was not sufficient to result in that state of mind.
Whilst the Defendant submitted a finding of unsoundness of mind was supported by a conclusion there was a temporal connection between the Defendant’s delusional belief about the stolen generation and a reference by the victim to Aborigines, a consideration of the objective evidence does not support that temporal connection. The statement of Mr Naitoko clearly indicates that whilst the Defendant responded to the victim’s reference to Aborigines, they left thereafter in a state which was consistent with a lack of aggression. A not inconsiderable period of time up to 30 minutes then elapsed before the alleged offence.
Further, Dr Scott and Dr Schramm both opined that care needed to be taken in drawing a link between the victim’s comment and the Defendant’s actions. It was, they opined, very difficult to know what goes on in the mind of someone who is floridly psychotic. I do not accept the evidence establishes a temporal connection between any comment by the victim and the delusional beliefs of the Defendant such as to support a conclusion, even on the balance of probabilities, that the Defendant’s underlying psychosis alone was sufficient to deprive him of the capacity to know he ought not to do the act.
That finding renders unavailable a finding the Defendant was suffering from unsoundness of mind at the time of the alleged offence. However, there remains for consideration the issue of diminished responsibility.
Both Dr van de Hoef and Dr Schramm opined the Defendant’s underlying schizophrenia, of itself, was sufficient to impair the Defendant’s capacity to know the wrongness of his act. I accept those opinions. I do not accept Dr Scott’s opinion to the contrary.
I am satisfied at the time of the alleged offence the Defendant was in such a state of mind as a consequence of his underlying schizophrenia alone as substantially to impair his capacity to know he ought not do the act. That conclusion means that notwithstanding the presence of an intoxicating substance, the Defendant satisfies the requirements for a finding of diminished responsibility.
The remaining question is fitness for trial. Both Dr van de Hoef and Dr Schramm opine the Defendant is presently temporarily unfit for trial. The Defendant is currently unwell and dangerous, and requires assessment in a hospital setting. The assisting psychiatrists advise I ought to accept those opinions.
Having regard to the matters raised by Dr van de Hoef and Dr Schramm, the validity of which is supported by both Dr Varghese and Dr Harden, I am satisfied the Defendant is temporarily unfit for trial. I accept there is a need for the Defendant to be assessed in a hospital setting.
Having regard to the concerns raised by Dr van de Hoef and Dr Schramm, urgent consideration should be given to a transfer of the Defendant’s psychiatric care. I do not intend, by that comment, any criticism of Dr Scott. Dr Scott accepts there is a complete breakdown in any therapeutic relationship. The nature of the Defendant’s illness, and the consequences of any inadequate treatment mean there is a strong need for a proper therapeutic relationship if his illness is to be properly and adequately treated in the future.
Orders
I order:
1. At the time of the alleged offence, the subject of the amended reference, the Defendant was not suffering from unsoundness of mind as defined in the Schedule to the Mental Health Act 2000;
2. At the time of the alleged offence, the subject of the amended reference, the Defendant was suffering from diminished responsibility;
3. The Defendant is temporarily unfit for trial;
4. The Defendant be detained, pursuant to a forensic order, in The Park High Security Authorised Mental Health Service;
5. There be no approved limited community treatment at this time;
6. Copies of the reports, and of the transcript, be provided to the parties, the treating team, the Mental Health Review Tribunal, and the Attorney-General.
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