Re Olm
[2015] QMHC 14
•25 November 2015
MENTAL HEALTH COURT
CITATION:
Re OLM [2015] QMHC 14
PARTIES:
REFERENCE BY THE DEFENDANT’S LEGAL REPRESENTATIVES IN RESPECT OF OLM
FILE NO:
No 14 of 2015
DELIVERED ON:
25 November 2015
DELIVERED AT:
Mental Health Court at Brisbane
HEARING DATE:
6 November 2015
JUDGE:
Boddice J
ASSISTING PSYCHIATRISTS:
Dr Reddan
Dr Varghese
ORDER:
1. At the time of each of the alleged offences, the subject of the reference, the defendant was not of unsound mind as defined in the schedule to the Mental Health Act 2000 (Qld).
2. In respect of each of the alleged offences the defendant is fit for trial.
3. Each of the alleged offences is to continue according to law.
4. Copies of the reports and of the transcript are to be provided to the parties in the criminal proceedings.
CATCHWORDS:
MENTAL HEALTH - DECLARATION OR FINDING OF MENTAL ILLNESS OR INCAPACITY – where the defendant has an acquired brain injury – where the defendant was charged with assault occasioning bodily harm, acts intended to cause grievous bodily harm, two breaches of bail condition and contravening a direction of a Domestic Violence Order – where all of those charges were included on the reference to the Court, but the parties accepted that there was no issue as to the defendant’s soundness of mind in relation to the third index offence – whether the defendant was of unsound mind as at the date of the first, second, fourth and fifth index offences
Mental Health Act 2000 (Qld)
COUNSEL:
C M Kelly for the Director of Public Prosecutions (Queensland)
J Tate for the Director of Mental HealthJ P Benjamin for the Defendant
SOLICITORS:
Office of the Director of Public Prosecutions (Queensland)
Crown Law for the Director of Mental HealthLegal Aid Queensland for the Defendant
BODDICE J: By Amended Reference, filed 23 April 2015, the defendant’s legal representatives referred to this Court the mental condition of OLM at the time of five offences allegedly committed on three dates: assault occasioning bodily harm while armed and acts intended to cause grievous bodily harm, both on 21 May 2014; breach of bail condition, on 4 February 2015; and breach of breach of bail condition and contravene a direction of a Domestic Violence Order (DVO), both on 23 March 2015.
There is no dispute the defendant is fit for trial. There is also no dispute the defendant was not of unsound mind at the time of the alleged offences of breach of bail condition on 4 February 2015, and breach of bail condition and contravene a direction of a DVO on 25 March 2015. At issue is whether the defendant was of unsound mind at the time of the alleged offences on 21 May 2014.
Background
The defendant was born on 10 June 1981. His parents separated when he was young. Initially, the defendant lived with his mother on the Gold Coast; when he was aged about 10, he relocated to live with his father in Victoria. The defendant was his parents’ only child together, but he has a number of half-brothers and half-sisters. As a child, the defendant was diagnosed with Attention Deficit Hyperactivity Disorder (ADHD) and prescribed Ritalin.
The defendant finished school at the age of 16 after completing year 10. He obtained a multitude of certificates related to construction and transport, and worked “industriously from the age of 16 to the age of 30”[1], in industries including agriculture, transport and construction. The defendant has had three or four long-term relationships. He was not in a relationship at the time of the index offences and remains single. The defendant does not have any children.
[1] Exhibit 10: Report of Dr Morris Bersin dated 2 June 2015, page 5.
The defendant smoked cannabis occasionally between the ages of 16 and 18. He has not smoked it since. In his early 20s, the defendant took ecstasy when he was out partying, and “occasionally” abused amphetamine when he was aged about 23 or 24.[2] He has not attended any detoxification or rehabilitation programs in relation to illicit substances. The defendant consumes alcohol occasionally or socially.[3] The defendant smokes about 50 grams of tobacco each week (about 20 cigarettes a day, or 200 “rollies” a week).
[2] Exhibit 1: Report of Dr Jonathan Mann dated 15 September 2014, page 8; Exhibit 7: Report of Dr Donald Grant dated 14 May 2015, page 10.
[3] The defendant reported to Dr Bersin that he did not consume alcohol.
On 5 March 2013, the defendant was hit by a car while in Mildura driving to the funeral of his friend, who had committed suicide. The defendant suffered serious brain injuries.[4] The defendant was hospitalised for many months, and required at least twelve surgeries, including one involving the insertion of a titanium plate on the left side of his cranium. As a consequence of the accident and the surgeries, the defendant suffered severe head scarring and facial disfigurement.
[4] Those injuries included including pneumocephalus, a right skull fracture, a base skull fracture, a small subarachnoid haemorrhage, bilateral subdural haematomas, bilateral extra-axial haematomas, bi-temporal contusions, bi-frontal and bi-temporal intraparenchymal haemmorhagic contusions, and generalised oedema of the brain
After his discharge from hospital, and a prolonged period of rehabilitation, the defendant relocated to the Gold Coast to live with his mother and stepfather. The defendant has been socially isolated since his injury and relocation. He resumed using ice intravenously about once a week or once a month. The defendant used ice rather than alcohol, because he thought alcohol made him aggressive. Ice did not have that effect on him.
The defendant said he had not used ice around the time of the alleged offence on 25 March 2015, but “might have” used it around the time of the alleged offence on 21 May 2014.[5] When pressed on this point by one reporting psychiatrist, the defendant said he had syringes and drugs at that time in his bedroom and he might have used ice the night before, but could not be more definitive in his answers. The defendant otherwise denies consuming any alcohol or illicit substances on 21 May 2014.
[5] Exhibit 7: Report of Dr Donald Grant dated 14 May 2015, page 10.
Criminal history
The defendant has a criminal history, including repeated convictions for unlicensed driving, drug possession and drug trafficking.[6]
[6] Exhibit 2: Defendant’s Queensland criminal history, page 1.
In Queensland, the defendant has been convicted of possession of dangerous drugs and possession of utensils or pipes for use, both committed on 16 August 2013, for which he was sentenced to two months’ imprisonment, suspended for 18 months.[7]
[7] Exhibit 2: Defendant’s New South Wales criminal history, page 1.
In New South Wales, the defendant has been convicted of possession of a prohibited drug, committed on 4 May 2007, for which he was fined, and driving while disqualified from holding a driver’s licence, committed on 6 February 2013, for which he was disqualified from holding a driver’s licence for two years.
In Victoria, the defendant has a 12 page criminal history spanning over a decade. The defendant has been convicted of an array of offences, including driving-related offences, drug-related offences, dishonesty-related offences, and offences of violence. The penalties imposed for these offences have ranged from cancellation and disqualification of the defendant’s driver’s licence to imprisonment.
Index offences
There are two complainants in relation to the alleged offences on 21 May 2014. A 24 year old female acquaintance of the defendant, who was the victim of the alleged assault occasioning bodily harm whilst armed, and the defendant’s stepfather, who was the victim of the alleged acts intended to cause grievous bodily harm.
In the mid-afternoon of 21 May 2014, the defendant, who was residing at his mother and the stepfather’s apartment on the Gold Coast, was watching a film in his bedroom with the female complainant. At one point, the defendant touched her back and leg suggestively. The female complainant rejected what she considered sexual advances, saying she had a boyfriend. After this rejection, the female complainant said the defendant became quiet and may have been “sulking”.
The female complainant felt uncomfortable and decided to leave but wanted the defendant to “calm down” first. When it appeared the defendant was asleep, the female complainant, who had been sitting at the end of the bed, decided to leave and nudged the defendant. It is alleged the defendant immediately punched the female complainant in the nose with his right clenched fist. The female complainant fell off the edge of the bed onto the floor.
It is alleged the defendant then punched the female complainant a further four or five times in the head. The defendant allegedly screamed abuse at the female complainant, who called out for assistance. The female complainant tried to leave the bedroom, but it had been locked from the inside. As the female complainant turned to face the defendant, he allegedly picked up a hammer from the floor of the bedroom. He said to her: “you’re not going to look pretty after this.” The defendant then struck the female complainant in the forehead with the hammer. The defendant later repeated the earlier statement.
After the female complainant had been struck with the hammer, the defendant’s stepfather gained entry to the bedroom and sought to assist the female complainant. The defendant was highly agitated, and the female complainant tried to calm him down. The defendant’s mother administered first aid to the female complainant. The female complainant left the apartment. As the female complainant drove away, the defendant allegedly warned her: “don’t go to the cops” and kicked the driver’s door panel. The female complainant drove to a nearby street and called emergency services.
After the female complainant left, the defendant became even more agitated, and began abusing his mother and the stepfather. The stepfather called his daughter and nephew. The defendant thought the call was to police, which angered him further. The defendant’s mother and the stepfather sought to defuse the situation by sitting on the couch and ignoring him. The defendant became enraged, went to his bedroom, and then allegedly produced a knife, which he used to threaten the stepfather. The stepfather told the defendant to put the knife away. The defendant complied with that request.
Soon, after that incident, the defendant re-emerged from the bedroom with a container of highly flammable fuel. The defendant poured the fuel over his mother, stepfather, and the couch. An argument ensued about the return of $20,000 which the defendant had gifted to his mother. The stepfather responded that the defendant had not been paying rent for a year and a half, saying the defendant probably owed more than that amount. In response, the defendant said he would cause $20,000 damage. The defendant started to rip off the kitchen cupboard doors. The stepfather described the defendant as being “furious and out of control”.
When the stepfather attempted to intervene, the defendant picked up a coffee table and hit him over the head with it. The stepfather fell onto his stomach and was lying in the doorway. The defendant allegedly picked up a shovel and hit the stepfather over the head with it twice. The defendant’s mother believed he had killed the stepfather and ordered him to leave. The defendant apologised to his mother and left the premises.
As the female complainant was being transported by paramedics, she saw the defendant walking down the street. Police arrested the defendant. As he was arrested, the defendant is reported to have said: “you must hate me, Mum, for what I’ve just done”. The defendant was calm and apologetic.
The alleged breach of bail condition and contravening a DVO condition, on 25 March 2015, occurred when the defendant, in contravention of the conditions of his bail and DVO order issued after the alleged incident on 21 May 2014, went to his mother and the stepfather’s apartment. The defendant is alleged to have screamed at his mother and stepsister, and choked his stepsister. Fearing for their safety, the defendant’s mother and the stepfather left the apartment and called police. The defendant assured police he was happy for his mother and stepfather to return, and there would be no further altercations.
When the defendant’s mother and stepfather returned, the defendant allegedly abused them, threw medication around and destroyed property. As they left the property for a second time, the defendant followed them, pulled the keys out of the ignition and threw the keys away. The defendant later located the keys and gave them back to his mother. When she went to leave again, he pushed himself against the vehicle and continued to cause a disturbance. The defendant’s mother called police for a second time.
Treating psychiatrist
Dr Bersin is the defendant’s treating psychiatrist. The defendant first consulted Dr Bersin on 15 March 2015. He had consulted the doctor on at least 4 other occasions prior to the date of Dr Bersin’s report. Although the defendant’s mother accompanied him to Dr Bersin’s offices on the first occasion, she did not participate in any sessions.
Dr Bersin described the defendant as being “lean and strong”, “reasonably dressed” and “reasonably groomed”.[8] The defendant appeared to have difficulties with articulation, although his speech was clear and audible with a normal rate, rhythm and volume. Contrary to the defendant’s own reports about his concentration after the accident, Dr Bersin reported that the defendant’s attention span was normal, and he was able to focus and shift his attention appropriately during what was “a rather long consultation.”[9]
[8] Exhibit 10: Report of Dr Morris Bersin dated 2 June 2015, page 6.
[9] Exhibit 10: Report of Dr Morris Bersin dated 2 June 2015, page 6.
The defendant reported to Dr Bersin that he had poor motivation, a slightly dysphoric mood (about twice a month, but he “gets over it” quickly), and significant anxiety and tension (although he does not have panic episodes).[10] Dr Bersin opined that the defendant’s mood during the consultation was euthymic, and he was not irritable or impulsive.
[10] Exhibit 10: Report of Dr Morris Bersin dated 2 June 2015, page 3.
Dr Bersin opined the defendant developed post-traumatic amnesia and post-traumatic impulse dyscontrol as a consequence of his brain injury. Dr Bersin diagnosed him with “major neurocognitive disorder, due to traumatic brain injury – with behavioural disturbance (impulse dyscontrol)”.[11] The defendant did not, however, describe any symptoms suggestive of thought disorder, mania, hypomania or psychosis. In particular, the defendant did not have any hallucinations, delusions, possession of thoughts or suggestions of dissociation. Dr Bersin considered the defendant’s judgment was “obviously impaired and over-written by his episodes of impulse dyscontrol.”[12]
Reporting psychiatrists
[11] Exhibit 10: Report of Dr Morris Bersin dated 2 June 2015, pages 2 and 7.
[12] Exhibit 10: Report of Dr Morris Bersin dated 2 June 2015, page 7.
Dr Kovacevic
Dr Kovacevic initially interviewed the defendant on 23 May 2014. The interview, conducted at the Southport watch house, was of about 35 minutes duration, as the defendant was required in Court.
The defendant reported to Dr Kovacevic that since his brain injury, he has had issues with his cognition (especially short-term memory loss), mood, impulsivity and anger.[13] The defendant also reported sleep-related difficulties, including frightening dreams, and confusion and impaired reality testing if awoken suddenly.
[13] Exhibit 3: Progress note of Dr Velimir Kovacevic dated 2 June 2014, page 1.
In relation to the index offence, the defendant reported to Dr Kovacevic that he did not recognise the female complainant, thought she was about to harm him, and “lashed out in fear”.[14] It took him about a minute to realise what was going on, and his memory of the incident is “extremely fragmented”.[15] The defendant denied having any other motive for assaulting the complainant.
[14] Exhibit 3: Progress note of Dr Velimir Kovacevic dated 2 June 2014, page 1.
[15] Exhibit 3: Progress note of Dr Velimir Kovacevic dated 2 June 2014, page 1.
Dr Mann
Dr Mann interviewed the defendant on 11 September 2014 at the Arthur Gorrie Correctional Centre, where the defendant was being held on remand.[16] The defendant reported falling asleep easily and sleeping heavily. The defendant typically slept for nine to 10 hours per night, waking a few times to go to the bathroom. The defendant did not recall any dreams or nightmares he may have had when he wakes the following morning. In prison, the defendant was often startled by loudspeaker announcements in the morning. If he is startled, the defendant feels “shocked and scared”, and it only “slowly sinks in where I am.”[17]
[16] As at the date of Dr Mann’s interview, only the first two index offences had been referred to the Court.
[17] Exhibit 1: Report of Dr Jonathan Mann, dated 15 September 2014, page 7.
Dr Mann opined the defendant was well-engaged with the assessment process, and was polite and cooperative throughout. The defendant’s mood was euthymic, although the defendant’s affect was somewhat restricted. The defendant continued to have difficulties with his concentration and short-term memory. Dr Mann could not elicit any evidence of psychosis, disorganised behaviour or formal thought disorder.
The defendant gave Dr Mann an account of the index offences on 21 May 2014 which was consistent with that provided by the other witnesses, although his memory was vague and incomplete. The defendant said he had not ruled out having a sexual or romantic relationship with the female complainant, but denied he had sought to initiate such a relationship with her on that day. The defendant hit the female complainant “out of fright”, adding “it was a blur, shock, I don’t know why [sic].”[18] The defendant could recall very little of the incident with his stepfather. The defendant could not offer an explanation for attacking his stepfather, other than saying “when I get on a topic, I won’t let go”.[19]
[18] Exhibit 1: Report of Dr Jonathan Mann, dated 15 September 2014, page 6.
[19] Exhibit 1: Report of Dr Jonathan Mann, dated 15 September 2014, page 6.
Dr Mann opined the defendant assaulted the female complainant: “after he woke up in an acute confusional state and acted impulsively out of fear and shock … he assaulted the first [complainant] without thinking about what he was doing and his actions were automatic and impulsive rather than the product of any formed intent.”[20] Dr Mann considered that when the defendant allegedly assaulted the female complainant, he was completely deprived of all three capacities. Accordingly, Dr Mann supported a finding of unsound mind in relation to this offence.
[20] Exhibit 1: Report of Dr Jonathan Mann, dated 15 September 2014, page 9.
Dr Mann observed the alleged offence involving the stepfather was different. By then, the defendant had been awake for several minutes, and this incident lasted much longer. Dr Mann also added that the offences were different in that the alleged offence involving the stepfather appears to have a clearer motive (as the defendant was arguing with him about money), and the defendant seems to have been capable of controlling his behaviour somewhat (because he let go of a knife when instructed to do so).
However, Dr Mann opined that the defendant “continued to be in a state of acute confusion which was directly related to his acquired brain injury and neurocognitive disorder … [he] was completely deprived of the capacity to know that he ought not do what he did … he was not reasoning with a moderate degree of sense and composure.”[21] Dr Mann also supported a finding of unsound mind in relation to this offence.
[21] Exhibit 1: Report of Dr Jonathan Mann, dated 15 September 2014, pages 9-10.
In evidence, Dr Mann maintained the opinions he had expressed in his report. Dr Mann was unable to say what exactly had triggered the defendant’s apparent deprivation of control and capacity. Dr Mann could not “explain fully why it happened on this occasion, why he acted with such extreme violence on this particular occasion”, especially as he was not this violent by nature until the head injury. It was not was fully explained by a confusional state. Such a state would only have lasted for seconds.
Dr Grant
Dr Grant interviewed the defendant on 28 April 2015 at Dr Grant’s rooms. The defendant was on time and unaccompanied, having made his way to Brisbane from the Gold Coast. The defendant was pleasant and cooperated throughout the interview with Dr Grant, although he had some impairment of concentration and recollection, and had impaired verbal fluency.
Overall, Dr Grant’s mental examination of the defendant indicated mild to moderate problems with concentration, mild to moderate issues with retention of new memories, and some evidence of frontal lobe dysfunction. These deficits were consistent with the defendant having had a significant traumatic brain injury. The defendant’s affect was reasonably normal, with no gross incongruity of any kind. The defendant showed no evidence of any formal thought disorder or psychotic features.
Like in his interview with Dr Mann, the defendant gave an account of the alleged offences on 21 May 2014 which was consistent with that provided by the other witnesses, although his memory was vague and incomplete. The defendant had no recollection of hitting the female complainant with a hammer or making threats to her. The defendant did recall arguing with his stepfather, thought he hit him, but could not explain his motivation for that act. The defendant denied assaulting his mother. The defendant had some recollection of ripping a door off a cupboard and throwing fuel around the apartment, but could not recall kicking in any cars. When Dr Grant asked the defendant why he was so violent on that day, the defendant “was at a loss”.[22]
[22] Exhibit 7: Report of Dr Donald Grant dated 14 May 2015, page 14.
The defendant’s response to the offences allegedly committed on 25 March 2015 was quite different. The defendant was able to recall many more details. As Dr Grant put it, the defendant was “very defensive” about that incident, saying his stepsister “basically started assaulting me ... she basically did a home invasion .. she should be charged.”[23] The defendant denied any use of ice at the time of this incident.
[23] Exhibit 7: Report of Dr Donald Grant dated 14 May 2015, page 15.
As to the defendant’s state of mind at the time of “these incidents”,[24] Dr Grant opined the defendant’s capacities:
“would have been significantly impaired by his acquired brain injury, which would have meant that he had less ability to think clearly about situations, react appropriately and control his affects. However, I am not convinced that [the defendant’s] acquired brain injury alone was sufficient to produce the serious and sustained aggression that occurred. In view of the history of substance abuse it is likely … that a combination of acquired brain injury and substance influence was necessary to produce the behaviour that occurred.”[25]
Dr Grant considered the defendant “was clearly impaired by his brain injury, but in my opinion that was not sufficient to deprive [him of capacity] and therefore he could not be regarded as being unsound of mind [sic].”[26]
[24] Dr Grant does not distinguish between the first, second, fourth and fifth index offences; Exhibit 7: Report of Dr Donald Grant dated 14 May 2015, page 18.
[25] Exhibit 7: Report of Dr Donald Grant dated 14 May 2015, pages 18-19.
[26] Exhibit 7: Report of Dr Donald Grant dated 14 May 2015, page 19.
In evidence, Dr Grant maintained that opinion. There were, in Dr Grant’s opinion, many reasons why the defendant reacted so suddenly and aggressively on 21 May 2014, but none of them were due to a deprivation of any of the relevant capacities. The defendant had a history of behavioural disturbance and anger, a history of substance abuse, and had a deteriorating financial situation prior to the index offences.
Dr Grant observed there was a particular connection between ice usage and aggressive behaviour, even in people without brain injuries. People with brain injuries were much more likely to be aggressive than people without them if they consumed ice. Dr Grant did not accord much relevance to whether the defendant was in a state of confusional arousal upon wakening, because even if the defendant was in such a state, it would have lasted “for seconds, not for longer.”[27]
[27] T.1-54/32.
Dr Grant reiterated that while he accepted the defendant’s acquired brain injury had impaired his capacities, it had not, either alone or in combination with his substance abuse, deprived him of his capacities:
“I [do not] think that his brain injury was, in itself, sufficient to understand [the defendant’s] behaviour … the question then arises as to what other factors might be relevant … I [have] outlined that I think drug abuse, drug use may be a relevant factor … that may have contributed to loss of capacities … but I think even then there’s insufficient evidence to say that [the defendant] was totally deprived.[28]
[28] T.1-53/32-37.
Dr Grant accorded particular weight to the defendant’s statements that the female complainant would not “look very pretty after this”, coupled with his use of a hammer. Together, they suggested goal-directed behaviour indicative of both motivation and intent. Dr Grant also opined the defendant’s ability to comply with the stepfather’s instruction to put the knife down, as well as his ability to avoid confrontations while he has been in prison (knowing that, given his existing neurological injuries and the plate in his head, any fight may be fatal for him), showed some capacity to control his behaviour.
Dr Gray
Dr Gray interviewed the defendant on 29 May 2015, at his rooms, for about 90 minutes. The defendant arrived for the interview alone. Dr Gray described the defendant as being “well-presented.”[29] The defendant was cooperative throughout the interview, and his mood was euthymic. While the defendant’s affect was generally bland, he was able to express some reactivity occasionally.
[29] Exhibit 12: Report of Dr Curt Gray dated 2 July 2015, page 5.
Dr Gray opined the defendant had slight dysarthria, abnormal movements of his external ocular muscles, and possibly some mild abnormal involuntary movements around his mouth. Dr Gray did not conduct a full cognitive intellectual assessment of the defendant’s intelligence because of time constraints, but observed that although he had poor memory and only partial insight into his condition, his judgment in relation to everyday matters was “quite intact”.[30] The defendant did not demonstrate any delusional material or formal thought disorder.
[30] Exhibit 12: Report of Dr Curt Gray dated 2 July 2015, page 6.
As to the defendant’s state of mind at the time of the alleged offences on 21 May 2014, Dr Gray opined it was clear the defendant “is suffering with a Major Neurocognitive Disorder due to traumatic brain injury, with behavioural disturbance … this has exacerbated the impulsivity due to the ADHD.”[31] However, Dr Gray differentiated between the defendant’s state of mind at the time of the alleged assault of the female complainant on 21 May 2014 and his state of mind at the time of the later incident shortly thereafter involving his stepfather.
[31] Exhibit 12: Report of Dr Curt Gray dated 2 July 2015, pages 11-12.
As to the alleged assault of the female complainant Dr Gray opined the defendant’s behaviour:
“arose from a so-called ‘confusional arousal’, which is usually a brief aberrant mental state which occurs at the transition between sleep and wakefulness, and incorporates both states … the important point … is that [the defendant] reacted with an unclear sensorium in an aggressive manner because he thought that he was under attack and frightened.”
Dr Gray opined the defendant did not understand what he was doing at the time of that alleged offence, was not capable of controlling his behaviour, and did not know that what he was doing was wrong. Dr Gray concluded the defendant was “acting impulsively and reflexively whilst confused”,[32] and supported a finding of unsound mind.
[32] Exhibit 12: Report of Dr Curt Gray dated 2 July 2015, page 12.
Dr Gray’s opinion in relation to the alleged offence involving the defendant’s stepfather was different. Dr Gray opined:
“the aforementioned confusional arousal had cleared, and … he was not delirious or in a state of altered consciousness at that time. [The defendant] was amenable to some reason, as is demonstrated by his ability to moderate some of his behaviour in discussions with his stepfather and mother. [Dr Gray thought] he was able to understand what he was doing and that he had the capacity to know that he ought not to behave in the manner that he did, and whilst [the doctor considered] his capacity to control his actions was affected by his high level of emotion at that stage … [this was not] specifically related to the presence of psychiatric disorder, nor sufficient to deprive him of the capacity to control his actions.”[33]
[33] Exhibit 12: Report of Dr Curt Gray dated 2 July 2015, pages 12-13.
In an email dated 13 August 2015, the Registrar of the Mental Health Court, on behalf of the assisting psychiatrists, asked Dr Gray for clarification as to two issues. First, whether the state of “confusional arousal” Dr Gray had opined the defendant was in at the time of the alleged offence involving the female complainant arose secondary to his acquired brain damage. Second, whether Dr Gray considered that sleep studies would establish whether there was in fact a tendency on the defendant’s part towards confusional arousal, and whether he should be referred for sleep studies or to any other specialist.
In an email dated 16 August 2015, Dr Gray responded that he regarded the defendant’s confusional arousal akin to a parasomnia or a transient delusion, which was not so much a disease of the mind, like schizophrenia, but a disease of the brain at the time, such as an epileptic seizure. The defendant’s acquired brain injury would have made him more susceptible to experience confusional arousal on waking, although such a phenomenon could also occur in the absence of brain injury. Although referral for sleep studies would be indicated for cases of recurrent aberrant behaviour during sleep, the likelihood of detecting an abnormality in a single sleep study was low. Such a referral may, however, have utility in excluding other persistent sleep disorders, such as obstructive sleep apnoea.
In evidence, Dr Gray maintained the opinions he had expressed in his report. Dr Gray explained his differentiation between the alleged offences on 21 May 2014:
“sleep and wakefulness normally are pretty separate, but not always … sometimes they get mixed up, particularly in the transitions between different sleep stages and the transition from sleep to wakefulness, so that elements of, for example, different sleep stages can appear in wakefulness and the transition from sleep to wakefulness can sometimes be akin to what we would in other areas of medicine and psychiatry regard as a delirium … [the defendant] would have been predisposed [issues in the transition] occurring more likely because of the head injury.”[34]
[34] T.1-4/11-19.
Dr Gray added:
“this has got a number of names … a good term for what happened is a confusional arousal … the arousal being coming from sleep to wakefulness but in this instance, associated with a confusional state. At a behavioural level, one would make a diagnosis of a parasomnia, which is simply an abnormal event that occurs during sleep.”[35]
[35] T.1-4/25-30.
Dr Gray opined that such a state would usually only last for a few minutes, such that the defendant was in a state of confusional arousal during the first alleged offence but not the second. When asked why the female complainant’s screaming did not wake the defendant, Dr Gray opined that her screaming was “more stimuli for a man who was unfortunately in the context of a confusional arousal or delirium … those stimuli, of course, entirely understandable in the circumstances, probably then would have slowed the resolution of that confusional arousal”[36] because they overwhelmed the defendant.
[36] T.1-9/34-41.
Submissions
Counsel for the defendant submitted the Court would accept the opinion of Dr Mann in relation to the issue of unsoundness of mind. Although Dr Mann’s opinion was premised on the defendant having been asleep, the evidence, especially the female complainant’s evidence, supported that conclusion.
Counsel for the Director of Public Prosecutions submitted the Court would accept and prefer the opinion of Dr Grant. It was consistent with the collateral material, and gave weight to the particular actions of the defendant during the incidents on 21 May 2014.
Counsel for the DMH submitted Dr Grant gave “the most cogent explanation as to how this day can be understood.”[37] The defendant’s threats to the female complainant, the use of a hammer to attack her, the discussion with his mother and stepfather about money, and the threat to cause damage to the apartment were evidence of the defendant’s soundness of mind. It was also difficult to see how even a parasomatic event would last for long enough that the defendant had a defence of unsound mind to the first two index offences, rather than act as a trigger for violence.
[37] T.1-68/23-24.
Assisting psychiatrists
Dr Reddan advised there was no doubt the defendant had sustained a serious head injury in 2013 which had resulted in impairment of several cognitive domains, his judgment and, to some extent, his behaviour. Whilst this head injury would have impaired each of the relevant capacities, the defendant was not deprived of any of the requisite capacities at the time of either of the alleged offences on 21 May 2014.
In terms of the first alleged offence, Dr Reddan advised the defendant’s conduct was not consistent with confusional arousal; the defendant was unlikely to have been in a deep enough sleep for that state to arise, and the consistency between his threats and actions was unlikely if he was in such a state. As to the second alleged offence, Dr Reddan advised “the witness statements and the nature of the offence suggest that [the defendant] just [could] not know the nature of what he was doing.”[38]
[38] T.1-69/44-45.
Dr Reddan opined the defendant was not psychotic; he was aware of what he was doing and of the difference between right and wrong. In Dr Reddan’s view, “[t]he only capacity that could be raised and was raised by Dr Mann was the [defendant’s] capacity to control his actions, yet … at the relevant time evidence from the witness statements … he did control himself … the overall facts of the crime indicate that although [his] capacity to control himself may be impaired, it was not deprived.”[39]
[39] T.1-70/4-9.
Dr Reddan advised the Court accept Dr Grant’s opinion that the defendant was not of unsound mind at the time of the alleged offences on 21 May 2014.
Dr Varghese advised that the defendant’s acquired brain damage would have the greatest potential to impair or deprive the defendant of his capacity to control his actions, rather than his capacity to understand what he was doing or know that he ought not do the act.
Dr Varghese characterised Dr Gray’s advice as “quite circumspect”, “conceding that there were issues with respect to the defendant’s behaviour which were problematic with respect to the defence of automatism.”[40] Dr Varghese pointed out five distinct problems with the confusional arousal hypothesis, saying it is “quite easily falsified”.[41]
[40] T.1-71/20-23.
[41] T.1-71/29.
First, the defendant may not have been in a sufficiently deep stage of sleep for confusional arousal to arise:
“to get confusional arousal, an individual would have to be in … stage 3 or stage 4 of non-REM sleep. That’s quite deep sleep. [One] would not reach the stage 3 or 4 of non-REM sleep by nodding off in the afternoon. It would take … at least a-half an hour to get into deep sleep. Usually in a normal sleep, it would be about 45 [minutes] to an hour. Confusional arousal … is rare in daytime sleep ... the other indication that this was unlikely to be stage 3, 4 sleep is that [the defendant] … he wakes up with what [the female complainant] describes [as] the gentle nudge, which would not be sufficient to arouse from a deep sleep.”[42]
[42] T.1-71/29-39.
Second, there was a meaningful connection between the defendant’s statements and his actions: “the behaviour has meaning, it’s not random … what [the defendant] says to the [female complainant] is not gibberish and meaningless. It has meaning in light of previous events so I would discount that as being sleep talking.”[43]
[43] T.1-71/45-46.
Third, the defendant engaged in complex behaviour: “[the defendant] gets up from his bed … he picks up a hammer ... he strikes specifically … at the [female complainant’s] head. It’s not random. … this is knowing what he’s doing … that would not fit with a stage of confusional arousal.”[44]
[44] T.1-72/2-6.
Fourth, the female complainant’s screaming would have woken the defendant, rather than pulling him into a deeper state of confusional arousal. Finally, there was no other instance in which the defendant had experienced confusional arousal.
Ultimately, Dr Varghese advised against accepting the opinions of Dr Mann or Dr Gray. Dr Varghese recommended the Court should accept and prefer the opinion of Dr Grant. Dr Varghese further advised that although the defendant may need assistance with the trial as a consequence of his significant acquired brain damage, the defendant was “clearly’ fit for trial.[45]
Discussion
[45] T.1-71/8.
Unsoundness of mind
There is no doubt the defendant had, at the time of all of the index offences, a state of mental disease or natural mental infirmity as defined by the Mental Health Act 2000 (Qld). The treating, reporting and assisting psychiatrists all concurred the defendant was suffering from Major Neurocognitive Disorder as a consequence of his traumatic brain injury. I accept that mental condition would have impaired the relevant capacities.
The difference between the evidence of Doctors Mann, Grant and Gray was in their opinions as to whether the defendant had been deprived of any of the relevant capacities at the times of the alleged offences on 21 May 2014; Dr Mann opined unsound mind in relation to both, Dr Gray in relation only to the first alleged offence, and Dr Grant opined there was no unsoundness of mind for either offence.
I accept and prefer Dr Grant’s opinion. I am satisfied the defendant was not deprived of any of the requisite capacities at the time of either alleged offence on 21 May 2014. I do not accept the opinions of Doctors Mann and Gray to the contrary.
Dr Grant gave reasoned and compelling evidence as to why a conclusion that there had been a deprivation of any of the requisite capacities at the time of either of the alleged offences was inconsistent with the defendant’s actions and with the collateral evidence. I found that evidence highly persuasive. I accept that evidence.
By contrast, Dr Gray and Dr Mann each gave little weight to the compelling evidence of the deliberateness of the defendant’s words and actions at the time of the each of the alleged offences. Their explanations as to his actions being consistent with initial confusion and then arousal lacked cogency. Those explanations were also inconsistent with the collateral evidence. I do not accept those explanations.
As to the first alleged offence on 21 May 2014, I accept the advice of the assisting psychiatrists that a precondition for the acceptance of the confusional arousal hypothesis is that the defendant was not only asleep, but that he was in a sufficiently deep state of sleep that he could have been in a state of confusion upon wakening. I am satisfied that assumption is not supported by the time of day (the mid-afternoon), the relatively brief period in which the defendant was potentially asleep for, or the female complainant’s statement that he may have just been sulking. Even if it is accepted that the defendant fell asleep, the time period was simply insufficient to satisfy that second precondition.
The suggestion that the defendant was not aware of what he was doing is also not consistent with his actions in getting out of bed, making repeated threats to the female complainant, the implement the defendant selected from the floor, or the way in which the defendant attacked the female complainant. The defendant’s warning to the female complainant that she “would not look pretty after this”, when armed with a hammer which he then used to strike the front of her head, and his insistence that she not call the police, are evidence of an awareness of his actions and of their wrongness. They are inconsistent with a deprivation of the capacities to know what he was doing, to control his actions and to know that he ought not do the acts in question.
Much of that reasoning applies to the second alleged offence on that day. The defendant’s discussion with his mother and stepfather about being owed $20,000, the threat to cause $20,000 worth of damage, the use of an accelerant, the destruction of items of property and his chasing of the stepfather are all consistent with an awareness of what the defendant was doing and of the wrongness of that behaviour.
These conclusions are consistent with the advice of both assisting psychiatrists. I found that advice especially helpful in giving consideration to which of the opinions of the reporting psychiatrists ought to be preferred in this matter.
Conclusions
The defendant was not of unsound mind at the time of any of the alleged offences the subject of the reference. The defendant is fit for trial in respect of each of those alleged offences.
The Court undertaking any trial of these alleged offences should be mindful of the need for modifications to the trial process to allow for the consequences of the defendant’s brain injury.
Orders
I order:
1.At the time of each of the alleged offences, the subject of the reference, the defendant was not of unsound mind as defined in the schedule to the Mental Health Act 2000 (Qld).
2.In respect of each of the alleged offences, the defendant is fit for trial.
3.Each of the alleged offences are to continue according to law.
4.Copies of the reports and of the transcript are to be provided to the parties in the criminal proceedings.
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