Re Neumann
[2005] QMHC 4
•11 May 2005
MENTAL HEALTH COURT
CITATION:
Re Neumann [2005] QMHC 004
PARTIES:
REFERENCE BY THE DEFENDANT’S LEGAL REPRESENTATIVE IN RESPECT OF MARK ANTHONY NEUMANN
PROCEEDING NO:
0096 of 2004
DELIVERED ON:
11 May 2005
DELIVERED AT:
Brisbane
HEARING DATE:
3-4 May 2005
JUDGE:
ASSISTING PSYCHIATRISTS:
Holmes J
Dr J F Wood
Dr J M Lawrence
FINDINGS AND ORDER:
1. The defendant was not of unsound mind as defined in the Mental Health Act 2000 (Qld), Schedule 2 at the time of any of the alleged offences.
2. The defendant is fit for trial.
3. The proceedings for all of the alleged offences are to be continued according to law.
CATCHWORDS:
MENTAL HEALTH – DECLARATION OR FINDING OF MENTAL ILLNESS OR INCAPACITY – where defendant charged with burglary and stealing, attempted armed robbery and attempted murder, with grievous bodily harm with intent as an alternative- where examining psychiatrists agreed that the defendant was presently suffering from schizophrenia- where psychiatric opinion differed as to whether the defendant was of unsound mind at the time of the alleged offences - whether the defendant had psychotic symptoms at the time of the alleged offences so as to deprive him of the capacity of control, or the capacity to know that he ought not do the act.
Criminal Code Act 1899 (Qld), s 27
Mental Health Act 2000 (Qld), s 257, Schedule 2R v Schafferius (1987) 1 Qd R 381
COUNSEL:
Ms C Morgan for the defendant
Mr W Isdale for the Director of Mental Health
Mr D Mackenzie for the CrownSOLICITORS:
Legal Aid Queensland for the defendant
The Crown Solicitor for the Director of Mental Health
The Director of Public Prosecutions
The defendant has been referred to the Mental Health Court under s 257 of the Mental Health Act 2000 by both his legal representatives and the Director of Mental Health. At issue is whether the defendant was of unsound mind when certain offences were allegedly committed by him on 19 and 20 October 2002. “Unsound mind” is defined in Schedule 2 to the Act as meaning:
“the state of mental disease or natural mental infirmity described in the Criminal Code, section 27, but [it] 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(1) of the Criminal Code provides:
“27. Insanity
(1) A person is not criminally responsible for an act 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 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.”
The alleged offending
The defendant was born on 19 May 1973. He is charged with one count of burglary and stealing, one count of attempted armed robbery with a circumstance of aggravation and a summary charge of unlicensed possession of a weapon, all of those alleged offences occurring on 19 October 2002; and one count of attempted murder with an alternative count of grievous bodily harm with intent and a summary offence of possessing a knife in a public place on 20 October 2002.
The allegations underlying the charges are as follows. In the morning of 19 October 2002, the defendant went from Cairns, where he was living, to the house of an acquaintance, Mr Berry, at Edmonton. He smashed a window to get into the house and took from it a .22 rifle. He drove away and near a shopping centre accosted another driver, who was in a Monaro, and, pointing the rifle at him, demanded his car. When the other driver refused and another vehicle pulled up, the defendant left in his own car. On the defendant’s account to police, given the next day, he then drove south to Gordonvale and turned west up to the Atherton Tableland. He hid the rifle somewhere in the vicinity of Millaa Millaa. He slept overnight in that area and returned to Cairns the following day.
On the afternoon of 20 October, the defendant again drove south to Gordonvale and took the highway west. This time he stopped at a picnic spot and swimming area on the Little Mulgrave River. On accounts given subsequently, he appears to have had an idea of abandoning his car and taking another. A two year old who had been at the swimming area came upon him suddenly; she had got ahead of her grandmother and brother who were with her. The defendant, it is alleged, used a bayonet knife to stab the child, inflicting three wounds. The child’s grandmother, Mrs Christensen, came upon the scene to see the defendant drawing the knife from the child’s back. He repeated the words “I’ve just got to do this” in a calm, controlled voice; when she looked into his eyes “they just didn’t register”. Another witness, who was, it should be said, on the other side of the river, described him as speaking with very little expression: “it sounded like he had just run over a dog or something.”
Mrs Christensen was able to get between the defendant and the little girl, and, picking her up, ran for help with her and her grandson. For a short period the defendant seems to have remained at the scene, watching events from his car, before driving away. Not long afterward he was pulled over on the Bruce Highway by a traffic policeman and arrested.
The issue as to unsoundness
There is a consensus among the psychiatrists who have examined the defendant that he currently suffers from schizophrenia. The real question on this reference are whether in October 2002 he was suffering from psychotic symptoms as a result of that condition depriving him of the capacity of control, or the capacity to know that he ought not to do the act. That issue lends particular significance to what can be gleaned of the defendant’s behaviour in the time leading up to the events of 19 and 20 October 2002.
The defendant’s background
The defendant had lived in Brisbane until May 2002, when he moved to Cairns. It seems that there were two events particularly distressing to him in the preceding years. The first was the death in 1999 of his mother, to whom he was close. The second was the break-up, in 2001, of a relationship of some five years standing. On his move to Cairns the defendant stayed for a short period with Mr Berry whose home, it is alleged, he subsequently burgled. He obtained some casual work as a concreter. Mr O’Brien, from the agency which contracted his labour, says that he worked on and off for the agency about three times (although he does not say how long he actually worked in those periods) and was a reliable worker. However, on 2 October 2002 he was expected to start work on a particular project and did not attend. Mr O’Brien telephoned him on his mobile phone to be told that he was in Melbourne. The trip to Melbourne, which seems to have been of five days duration, assumed some importance, because it is said that the defendant exhibited some odd behaviours during it.
In December 2004, Dr Byrnes, a psychiatric registrar at the Townsville Hospital, endeavoured to obtain some collateral information from family members. She contacted the defendant’s sister, brother and grandfather by telephone. The defendant’s sister said that her brother had suffered a “huge breakdown” after the death of his mother. In a telephone conversation on his birthday he said he wanted nothing to do with her and said “I don’t believe you are my sister”. It is not clear which birthday that was; it seems unlikely to have been close in time to the events in question here. She made these assertions about her brother’s behaviour shortly before the alleged offences: that he went to Melbourne, having taken his photo album with him and gave his photos away; that he made a sudden decision to return to Cairns and drove from Melbourne to Cairns in a day; that he had threatened his brother with a gun, accusing him of putting water in his oil. It is to be noted however that she had not seen the defendant since, at the latest, Christmas 2001. She did not have any contact with him apart from a short telephone conversation just prior to his move to Cairns in which he said “Have a good life, I’ll catch you in the after-life”. Some of her history seems to have been a recounting of information from other sources; that part is not, I think, to be given much weight.
The defendant’s brother said that the defendant had become more distant from his family after his mother’s death. However, the brother denied that any incident involving him, the defendant and a gun had ever occurred. He related only two specific and unusual incidents: one around Christmas 2000 when he was driving the defendant home and the latter began swearing at someone out of the car window, although there was no one there; and another at an unspecified time, when the defendant went to his house and threatened his housemate, accusing both the housemate and him (the brother) of emptying the oil out of his car engine.
The move to Cairns had, the brother said, been sudden, after a “blow up” at a family gathering. On the day before “the event” (although it is not clear whether this is 18 or 19 October) the defendant had left a message on his phone asking him to call him. He sounded distressed, but there was nothing bizarre.
Probably the most significant of the collateral histories taken by Dr Byrnes was that from the defendant’s grandfather, whom the defendant visited in Melbourne in the weeks before the alleged offences. He said that when he saw the defendant, he had “pinpoint pupils” and was driving, uncharacteristically, very slowly and cautiously. He asked him if he had been taking drugs or alcohol; the defendant denied having done so. At one point when they were in a car park, the defendant had touched a woman’s shoulder although he did not appear to know her. He recalled his grandson making what Dr Byrnes has recorded as “odd religious themed statements”, but these are not detailed. His grandson left Melbourne and drove to Cairns in about 24 hours.
On 14 October 2002 the defendant, now back in Cairns, went to see Mr O’Brien. Nothing unusual seems to have occurred then. On 18 October, Mr O’Brien contacted him to ask him to work on 21 October. Meanwhile, of course, the offences are alleged to have occurred, and the defendant had been taken into custody.
The police interview
After his arrest, the defendant was taken back to the Cairns Police Station for an interview. In the course of that interview he gave his personal particulars without apparent difficulty. He described smashing the window of Mr Berry’s house with the bayonet knife purchased from a second hand disposal store. He said he had bought the knife as “a self defence thing”. He agreed that he had taken the rifle. Initially he said that he had been looking for money and found the rifle. Later, he said that he wanted it for self defence; he explained that where he lived there were some people who caused him concern and he had also had thoughts of using it to take someone’s life. The defendant described the incident involving the driver of the Monaro. When he was asked about the stabbing of the child, he said that he had been in a state of depression and asked whether he had to answer questions on the subject. He was told that he did not have to, and responded “I’d possibly like to have a bit of legal advice first before I go into any matter and find out how the child is”. He went on to explain to the police officers where he had left the rifle. When asked towards the close of the interview about his mental state, he repeated his earlier statement that he was suffering from depression.
Examinations and assessments in custody
At 8:40 pm on 20 October 2002 the defendant was examined by the Government medical officer, Dr Bennett, whose report records this:
“During the examination Mr Neumann had normal affect, in that he was not delusional, that he was not distant or difficult to communicate [with] and not withdrawn. His speech and behaviour was entirely normal. There was no evidence on examination both physically or psychologically that he was currently taking or using drugs or alcohol either recently or in the past. There was nothing in my examination that would have suggested any evidence of psychiatric disease at the time of my examination.”
That night Dr Bennett took a blood sample from the defendant. It was analysed some nine months later, at which time no drugs, volatiles or alcohol were detected. However the analyst’s declaration notes that, given the lapse of time and the failure to preserve the specimen suitably, the alcohol and volatile results are to be interpreted with caution.
On 22 October 2002 the defendant took police officers to the site where he had concealed the rifle. On 24 October 2002 he was admitted to Lotus Glen prison. A psychologist assessed him there and noted that he showed “nil signs thought disorder”. On 25 October 2002 he was assaulted by another prisoner, although not seriously. He observed to a psychologist who spoke to him after that event that it was to be expected, given the nature of the offence. That psychologist found no evidence of active psychosis.
The defendant was then transferred to the Townsville Correctional Centre. On 4 November 2002 he was seen by Dr Stones, a psychiatrist who regularly attended patients at the correctional centre, and who continued to see him there from time to time. The defendant told Dr Stones that he had been feeling depressed. Before the assault he had had a couple of beers but was not intoxicated, nor was he using any other drugs. Of the defendant’s account of the stabbing, Dr Stones records this “An incident of anger. I’ve always been a safe person – I’ve always loved children. Remembers doing it. I knew it was the wrong thing to do. The power of self destruction took over.” In relation to the other offences, he said, “I was possessed by my anger. It was like someone else was driving the car. Stealing the gun was like a release”.
There are case notes dated 20 November 2002 by an unidentified individual, presumably a psychologist at the correctional centre, which record an interview with the defendant and a telephone interview with his sister. The defendant explained that over the last two and a half years he had experienced a deterioration in his social life and relationships related to the death of his mother. Among other observations in the interview, he said this: “I am selective with any speech so I don’t upset people, and don’t let stuff out”. His sister when contacted stated that the defendant had not dealt with his mother’s death and had rejected her (his sister) for the past two and a half years. He had become more withdrawn, aggressive, unreasonable and intolerant since an accident in 2001, when he had suffered a near drowning.
On 11 January 2003, the defendant was interviewed for the first time in connection with a possible Mental Health Act defence, by a forensic psychiatrist, Dr Fama. He repeated his account of depression prior to the alleged offences, but Dr Fama elicited no history of psychotic symptoms. The break-in and theft of the rifle, the defendant said, were a distraction from his unhappiness and he thought that seizing the Monaro might further alleviate his depression. The defendant gave Dr Fama an account of having drunk three or four stubbies on 18 October. He told him that he knew that breaking into Mr Berry’s house and trying to take the other man’s car were criminal acts. On 20 October he went to the picnic site hoping to take a car which, as it proved, belonged to the grandmother of the child assaulted, but when the child appeared he wanted to get her out of the way. He described himself as having had no sense of compulsion, other than panic. Dr Fama saw no symptoms of schizophrenia or any kind of psychosis. He diagnosed a neurasthenic personality (which he explains as encompassing, among other things, an inadequacy in response to stress and an inability to communicate distress) and a mild depressive episode.
On 17 January 2003, case notes from an unnamed psychologist at the prison record that the defendant said he had started drinking at the age of eight because his parents had not properly supervised him and his brother, and that from that age things were going wrong with him. Another case note of 24 February 2003 refers to statements by other prisoners that the defendant “bashes things in his cell at night”.
On 1 September 2003, the defendant was seen again in the prison by Dr Stones. He gave him an account of having been to Melbourne the week before the events and on his return having spent time in nightclubs in Cairns drinking. He told him that one night he had drunk beer and turpentine, which had left him in a coma for 12 hours. Dr Stones noted that he did not describe any psychotic symptoms prior to the alleged offending.
On 4 March 2004 the defendant was examined by Dr Richards, a psychiatrist, for the purposes of a medico-legal report. He gave an account of the weeks prior to the offences. He had sold his Rodeo utility vehicle for $10,000 and bought another car for $2,000. With the proceeds he had hired a sports car for a week at a cost of $2,000, and had spent a good deal of money on alcohol. He had also resorted for the first time ever to a male prostitute. Violence and noise in the units where he lived had made him fear for his life; to protect himself he had barricaded himself in his flat, blocking the doors and windows.
The defendant told Dr Richards that on 18 October 2002 he had been drinking Guinness and thought he heard someone say “you get on the turps”, so he drank half a stubby of turpentine before falling asleep. (Dr Richards said he did not himself give this claim of drinking turpentine much credence). He had gone to a car dealer the next day and asked to test drive a Monaro but was refused. He had a memory lapse so far as going to Mr Berry’s house the next day was concerned. He was not thinking clearly and was not in control of himself, and was uncertain what he could recall of the alleged attempt at taking the car. On 20 October he had wanted to change cars but the child had startled him; he described himself as “totally possessed, as if his soul had left his body”. He also claimed that he was intoxicated with the turpentine. Dr Richards diagnosed an alcohol induced psychotic disorder which, he said, was characterised by delusional ideas, loss of personal identity and bizarre and uncontrolled behaviour.
As a result of the defendant’s statements about ingesting turpentine two reports have been obtained from a pharmacologist, Dr Olaf Drummer. Dr Drummer says that turpentine acts as a central nervous system depressant and can cause disinhibition, out of character behaviour and possible hallucinations. Its use is likely to lead to obvious physical effects: nausea, vomiting, diarrhoea, breathing difficulty, chest pain, double vision, loss of consciousness and coma. It was theoretically possible that a person might still suffer the adverse effects of ingestion of turpentine 40 hours after ingesting it (in this case, in the afternoon of 20 October, if the defendant had drunk the turpentine on the night of 18 October) but it was most unlikely, if that were so, that he would have appeared normal when he was seen by the Government medical officer, Dr Bennet, 46 hours later.
Mr Isdale, for the Director of Mental Health, pointed out that there might be some concern as to Dr Drummer’s having confused mineral turpentine with wood turpentine; in the second of his reports he refers to a paper dealing with the toxicity of turpentine which, as it turns out, deals with wood turpentine. However, both Ms Morgan for the defendant and Mr Mackenzie for the Director of Public Prosecutions indicated that they did not rely on any actual occurrence of the defendant’s drinking turpentine; rather the significance of the references to turpentine was as part of a history of delusion, or possibly (in Mr Mackenzie’s view) fabrication. On all the evidence I think that approach is correct: Dr Bennett’s report of his examination of the defendant after the alleged offending does not support his having been under the influence of any substance such as turpentine; and one would, quite apart from Dr Drummer’s opinion, expect some significant ill-effects from ingestion of turpentine beyond the loss of consciousness with the feeling of unwellness the next day described by the defendant.
Dr Fama, asked to comment on the turpentine reference in a further report in June 2004, noted that there had been no account of drinking turpentine to him. He did not accept Dr Richards’ diagnosis of alcohol induced psychosis; he said that if there was protracted drinking sufficient to cause psychosis, the defendant would have shown withdrawal effects. He suspected, he said, that the defendant had suffered a schizophreniform psychosis, but it remained a matter of conjecture, and he could not support an unsoundness defence.
Dr Stones saw the defendant again in June 2004. The defendant advised him that he was awaiting a Mental Health Court hearing on the grounds of temporary psychosis; however Dr Stones noted no psychotic features. On 23 June 2004, the Legal Aid office referred the matter to the Court. On 16 August 2004, the defendant was seen by Dr Byrnes, who noted that he exhibited disordered thought content, and made a provisional diagnosis of a psychotic disorder. That diagnosis was confirmed a week later by Dr Reilly, then clinical director of the Secure Mental Health Unit at the hospital; he became for a period the defendant's treating psychiatrist. In early September the defendant was transferred to the hospital; the referral form says that he had reported hearing voices and having experienced psychotic phenomena since October 2001. In hospital, he described at various times having seen apparitions, having felt guided by “an energy force”, being “God’s immune system”, and other bizarre phenomena. He was treated with Risperidone, an anti-psychotic drug.
On 15 November 2004 the defendant was examined by Dr Kingswell. He denied any hallucinations to Dr Kingswell but told him he believed in auras. (Dr Kingswell thought that that view might be regarded as eccentric rather than delusional.) To Dr Kingswell the defendant gave an account of feeling as if he had been under the control of another at the time of the offences. Dr Kingswell did not find evidence of any thought disorder at the time of the interview. He did not think it was possible to conclude that there was any mental disease at the time. The contemporary records provided no evidence of any loss of capacity; they pointed instead to “a number of odd offences committed by an odd young man who is depressed, lonely and prone to alcohol abuse.” The defendant was fit for trial.
Dr Reilly, who has already been mentioned, gave a report dated 23 December 2004. He relied on the family history, in particular that given by the defendant’s sister, including her apparently inaccurate account of the defendant’s threatening his brother with a gun. Dr Reilly noted that the defendant asserted that he had become aware in his mid-twenties of assaults upon him at the age of eight years by family members. The defendant had described to him the incident in which the child was stabbed in these terms: “it zoomed in, I was listening to something, it was just like an energy force, you’ve got to do this, to free yourself from the burden of who you are”. At the time, he said, he had believed that the force was from God, but now thought it might have been the devil. Dr Reilly considered, on the balance of probabilities, that the defendant had the capacity to understand what he was doing at the time of the alleged defences but was deprived of the capacity to control his actions or to know that he ought not do the acts because of his disorganised thought processes and delusions. He was presently fit for trial.
Dr Stones saw the defendant again in February and March 2005 for the purpose of giving a report to the Court, and also contacted the defendant’s grandfather by telephone. His report is dated 22 March 2005. The defendant in these later examinations gave him an account of seeing apparitions and having ideas put in his head about what he should be doing. Originally he had experienced these manifestations after drinking bouts, but they had continued to occur although he had reduced his drinking. He explained to Dr Stones that he did not tell him of the apparitions and thought insertions in November 2002 because he had learned to accept them. He had also doubted their relevance at the time he was speaking to Dr Stones. Dr Stones said that he did not believe the defendant had the sophistication or knowledge to feign the necessary symptoms to support an unsoundness defence.
The defendant told Dr Stones that when he was in Melbourne he had felt his relatives disliked him, he was not finishing his sentences and thoughts kept coming into his mind. (Dr Stones noted that the defendant’s grandfather had not identified any psychotic features.) He informed Dr Stones that he had sold his Rodeo and bought a cheaper car because he wanted to become part of God, and God did not need money. He reiterated his account to Dr Stones of drinking turpentine. He gave confused reasons for stealing the rifle: he said on the one hand that he was going to hand it in to the police, and on another that he wanted to do some target practice. He told Dr Stones that he had planned to steal the car at the picnic spot, using the knife to hold its owner up, but the child had startled him.
Dr Stones was confident of the diagnosis of schizophrenia, although its features had been documented only over the preceding nine months. He said that with hindsight the defendant’s behaviour at the time of the alleged offending had been “suspicious” of mental illness. He gave five reasons in his report for considering that the defendant was of unsound mind at the relevant time. The first was the defendant’s account of experiencing thought blocking when he was in Melbourne. The second was his explanation that he had drunk turpentine after hearing someone refer to “going on the turps”, which Dr Stones said, was a connection typical of schizophrenic reasoning. The third was the defendant’s description of experiencing scattered thoughts. The fourth was the defendant’s account of being driven by thought insertions, and the fifth was the phrase that he was heard by the child’s grandmother to say, “I’ve just got to do this”. Dr Stones thought it likely that the defendant had experienced a delusional mood and was deprived of the capacity to control his actions.
Dr Neillie, who is now Clinical Director of the Townsville Secure Mental Health Unit, and has more recently been the defendant’s treating psychiatrist, has given two reports in January and April 2005. He similarly diagnoses the defendant’s illness as schizophrenia and notes that he is much improved on medication, but continues to demonstrate some negative features of the disease. He considers, however, that he is fit for trial.
The evidence at the hearing
In this court, Dr Fama, Dr Kingswell, Dr Richards, Dr Reilly and Dr Stones gave evidence. Dr Fama said that he accepted the defendant had schizophrenia at the present time. The question was whether at the time of the offences he was experiencing psychotic symptoms, or whether he was now attributing symptoms to that time as part of his illness: a delusional memory of events. It was possible that the defendant had been suffering from active schizophrenia at the relevant time or that he was in a pre-psychotic phase which had caused him some somewhat disordered thinking, emotional turmoil and uncertainty, but stopped short of mental disease. The offences were sufficiently bizarre to suggest a psychotic process, but did not prove it had occurred. The rational responses given to police and when first in jail on the other hand were not necessarily inconsistent with schizophrenia; it was possible to have marked delusions but react reasonably to actual circumstances. The different accounts of the offence given to different psychiatrists might simply be the product of schizophrenic thinking. On the whole, however, Dr Fama thought it more likely that the defendant was experiencing a pre-psychotic condition, because if he were actively psychotic it could be expected that that would be obvious. If the defendant were in a pre-psychotic condition, Dr Fama was unable to say whether he was deprived of his capacities; he had found no evidence that he was.
Dr Kingswell also accepted that the defendant’s symptoms as from 2004 justified a diagnosis of schizophrenia. There were these possibilities as to the defendant’s condition at the relevant time: that he had suffered from mental disease; that he was experiencing a depressed mood combined with drug and alcohol use; or that he was intoxicated. There was, Dr Kingswell considered, no evidence that the defendant had in October 2002 suffered from schizophrenia, as opposed to being a disorganised young man with a number of problems. The proposition that the defendant suffered from schizophrenia of such severity to rob him of any of the necessary capacities was not supported by his conduct at the time of the events, during his interview by police, or when he was first in prison, although it did not exclude the possibility. There was no clear link between any psychotic thinking and the behaviour, other than the defendant’s rather vague reference to being controlled. It was questionable whether one could rely on the defendant’s account now of his symptoms in 2002; it might be untrue or it might simply be the product of delusion.
The defendant’s behaviour in October 2002 might, Dr Kingswell said, have represented the prodrome to schizophrenia or it might have been unconnected. The family accounts of his behaviour was not compelling evidence of a deteriorating condition due to schizophrenic illness, as opposed to depression combined with drug and alcohol use. And there remained an unanswered question as to whether intoxication had played a part. But there was simply not, in any case, a strong enough contemporaneous record to lead to a conclusion of mental disease or a deprivation of the necessary capacities at the relevant time.
Dr Richards, having seen information about the later diagnosis of the defendant as schizophrenic, revised his diagnosis, coming to the view that the psychosis he considered the defendant to have suffered at the time of the alleged offences was the result of schizophrenia. He explained that the features which had led him to a conclusion of psychosis were, essentially, the bizarre nature of the defendant’s conduct as he had described it to him in the days preceding the offences; the stabbing of the child; the repetition of the words “I just had to do this”; and the defendant’s conduct in sitting for a period in his car, rather than leaving the scene at once. Although his responses to police questioning appeared rational, it was not necessarily inconsistent with his having been in a psychotic state some hours earlier; the realisation of what he had done might have brought him out of the episode. He considered that, although the defendant might have known what he was doing, he was deprived of the capacity to control his immediate actions.
Dr Reilly said that he had obtained differing stories from the defendant about his supposed ingestion of alcohol. He did not think that the truth or otherwise of that claim was important in terms of the defendant’s clinical management. Dr Reilly’s view was that the psychologists who had seen the defendant at the prison were not sufficiently trained to identify psychosis, and that less experienced psychiatrists might also overlook it. It was possible that the defendant had hidden some of the symptoms of schizophrenia when he spoke, for example, to Dr Stones and Dr Fama. Given that the defendant was suffering from schizophrenia with disorganisation it was likely that he would give inconsistent accounts of the event over time.
It was important, Dr Reilly said, to look for instances of bizarre behaviour suggestive of psychosis at an earlier point. The defendant had described beliefs as to his childhood, starting in his early to mid-twenties, which Dr Reilly regarded as delusional. Dr Reilly identified, as independent pointers to psychotic illness, the defendant’s sister’s account in November 2002 of his becoming withdrawn and isolated from his family; the notes of 17 January 2003 as to things going wrong from the age of eight, which, Dr Reilly said, was consistent with later delusions that something had happened to him at that age; and the reference in the notes of 24 February 2003 to his smashing things in his cell at night. Dr Reilly also relied on the comments by the defendant’s grandfather as to his behaviour when he was in Melbourne. It was possible, he thought, but unlikely, that the incidents described by the defendant’s brother and grandfather could have been related to alcohol or drug use. The defendant’s ability to answer police questioning rationally could not rule out the possibility of his having psychosis. The diagnosis of schizophrenia and psychotic behaviour at the time of the offending was the best explanation for the defendant’s conduct at that time.
Dr Stones in evidence noted that the defendant’s behaviour around the period of the alleged offending seemed to have been very driven, but he could point to no evidence of any thought insertion other than that identified by the defendant as causing him to stab the child. The information available to him when he had examined the defendant in the prison was more limited than that now available and his role as a psychiatrist there had been a therapeutic one not a forensic one. He considered that the defendant was at the relevant time experiencing “a delusional mood” as part of the early stages of schizophrenia, an experience which might have been relatively transient. Dr Stones explained that there was evidence that the defendant had been schizophrenic since August 2004; the events of October 2002 were bizarre; and on the balance of probabilities he thought that there was a connection between the illness and the events. But it was not entirely clear what that connection was or what was the nature of any delusion driving the defendant to stab the child.
The assisting psychiatrists’ views
Dr Wood and Dr Lawrence, the assisting psychiatrists, both added some comments at the end of the hearing. Dr Wood noted that, broadly speaking, there was a difference in views between the treating psychiatrists on the one hand, and the forensic psychiatrists on the other, as to the likelihood of the defendant having been psychotic in October 2002. The treating psychiatrists, approaching the matter from a clinical point of view, made the diagnosis of schizophrenia and assessed the conduct of that period in that light. The forensic psychiatrists, on the other hand, could not link the behaviour to any delusional thinking disorder, and while conceding the possibility of psychosis at the relevant time, did not find a link established. Dr Richards fell more within the camp of the clinicians, and had of course changed his diagnostic position. One could say that the view of the treating psychiatrists was the best explanation of the defendant’s behaviour, if that were sufficient for the purposes of the Act. It was possible, Dr Wood suggested, that this was a case in which the facts on which the expert opinions were based were so in dispute as to make it impossible to reach a decision.
Dr Lawrence agreed generally with Dr Wood’s observations. She added that it was appropriate for a clinician to put together what information was available to arrive at the best possible explanation; one could understand why the treating psychiatrist did arrive at the conclusion of psychosis. However, the evidence for the presence of psychosis in October 2002 was in doubt.
Conclusions
I do not think this is a case where facts substantially material to the opinions of the expert witnesses are in dispute so as to make it unsafe to make a decision. The area of debate concerns not so much what the evidence is, as how it should be regarded. There is, I think, a need to approach some of the anecdotal evidence with considerable caution having regard to, in some instances, its distance in time from the offending behaviour, its vagueness and its second-hand nature. The history requires, in short, vigorous scrutiny.
The clearly identified episodes in the defendant’s earlier history which require consideration are these: his sister’s account of his apparent isolation and withdrawal (in a time frame apparently around two and a half years prior to November 2002); and his brother’s account of the defendant behaving oddly, talking to a non-existent person out of the car window around Christmas 2000, and at some unidentified time, making accusations against him and his housemate. Independent evidence of any bizarre behaviour around the time of offending is scant; there is the grandfather’s account of the defendant, in the weeks prior to the alleged offences, looking as if he were affected by alcohol or drugs and touching the woman he did not know on the shoulder. All of the information taken from family members seems, as Dr Kingswell suggested, at least as consistent with depression and drug and alcohol use as with psychotic illness.
There is, of course, the defendant’s account of his conduct to Dr Richards in March 2004, of selling his vehicle and spending the money on alcohol and hiring the sports car, using for the first time a male prostitute and barricading himself in his flat. Putting aside the difficulty that this is a later recounting of events which may or may not be reliable, these are behaviours which might reflect the onset of psychosis. But they might, on the other hand, again be the product of depression and drug or alcohol abuse.
One can understand the description of the offending behaviour as bizarre. But while exhibiting some disorganisation and impulsivity it is not, I think, so entirely inexplicable as to be accounted for only on the basis that it must have been psychotic. If one assumes for present purposes that the defendant did hold up the owner of the Monaro with the view of stealing it, his desistence may be explained by the driver’s refusal to comply and the arrival of another vehicle on the scene. He has since explained that on the following day he thought the police would be on the lookout for his vehicle, so that he should take another and for that purpose he was at the picnic spot and had the knife with him. Assuming, again, that to be so, it does not seem out of the question that the child did startle him, producing an impulsive response, and that his reactions thereafter were consistent with shock at what he had done.
The other explanation is, of course, that he was acting under the compulsion of a thought insertion or command hallucination. The latter view is not supported by anything in his behaviour in the police interview, his examination by the government medical officer, or the assessments of the psychologist who saw him at Lotus Glen or the Townsville Correctional Centre. I accept that a person suffering from schizophrenia may nevertheless be able to act rationally in some circumstances, so that his behaviour in those instances does not exclude the possibility of psychosis; but it certainly does not point to it. Nor indeed did anything consistent with psychosis emerge on the examinations of Dr Stones or Dr Fama notwithstanding questions specifically directed to that possibility. Again, of course, the possibility of concealment exists.
It is only on the defendant’s accounts of events as given from August 2004 that the thought insertion or command hallucination feature comes to the fore; and it may well be the product of delusional memory. To find unsoundness at the relevant time, one has, then, to accept a view of events in which the existence of schizophrenia producing at least one episode of psychosis was not detected for almost two years after the events in question, but nonetheless the defendant suffered from that illness for the entire period, unrecognised by psychologists or psychiatrists.
I note the observation of Thomas J in R v Schafferius (1987) 1 Qd R 381 at 383 that a finding of unsoundness of mind “should be made only in reliance on clear and convincing evidence, and upon a firm satisfaction consistent with the gravity of the proceeding ... a proceeding at the ‘grave’ end of the Briginshaw principle”. The reasoning of the psychiatrists who argue for the existence of the condition as early as October 2002 does, I think, smack somewhat of post hoc ergo propter hoc. The explanation that the defendant acted as he did because of mental illness depriving him of the capacity of control or the capacity to know he ought not do the acts, might well be the most satisfying of the available explanations, but I do not think it is supported by any convincing evidence. I prefer the views of Dr Kingswell and Dr Fama which are, essentially, that while psychosis is a distinct possibility, it remains a matter of conjecture. I cannot achieve a state of “firm satisfaction” on the very limited evidence available.
Findings
Accordingly, I am not satisfied that the defendant was suffering from unsoundness of mind so as to deprive him of any of the relevant capacities. I find that the defendant is fit for trial and I order that proceedings continue against him according to law.
0
0
2