Re Perini

[2009] QMHC 27

MENTAL HEALTH COURT

CITATION:

Re Perini [2009] QMHC 27

PARTIES:

REFERENCE BY THE DIRECTOR OF MENTAL HEALTH IN RESPECT OF MAURIZIO PIERRE LUIGI PERINI

FILE NO/S:

No 0190 of 2008

DELIVERED ON:

24 August 2009

DELIVERED AT:

Brisbane

HEARING DATE:

1,2 June 2009

JUDGE:

Philippides J

ASSISTING PSYCHIATRISTS:

Dr E N McVie
Dr F Varghese

FINDINGS AND ORDERS:

1. That at the time of the alleged offences the subject of the reference, the defendant was not suffering from unsoundness of mind as described in Schedule 2 of the Mental Health Act 2000 (Qld);

2. That in relation to the charge of murder, the defendant was of diminished responsibility as described in Schedule 2 of the Mental Health Act 2000 (Qld);

3.    The defendant is fit for trial;

4.    The proceedings against the defendant for       manslaughter are to be continued according to law;

5.    The proceedings against the defendant for rape, enter       dwelling with intent (two counts), enter dwelling and       commit indictable offence, and misconduct with a       corpse by            interfering, are to be continued according      to law.

CATCHWORDS:

MENTAL HEALTH – DECLARATION OR FINDING OF MENTAL ILLNESS OR INCAPACITY – where defendant charged with murder and other offences – where defendant was at the relevant time suffering from a significant personality disorder and psychosocial stressors – where defendant also suffering from an adjustment disorder – whether defendant was intellectually disabled – whether defendant suffered from unsoundness of mind – whether defendant was deprived of any of the relevant capacities – whether defendant was of diminished responsibility – whether defendant’s personality disorder when combined with other conditions constituted an abnormality of mind – whether there was a substantial impairment of capability

Mental Health Act 2000 (Qld), Schedule 2
Criminal Code Act 1899 (Qld), s 304A
Re GMB [2002] QMHT 1
McDermott v The Director of Mental Health; ex parte A-G (Qld) [2007] QCA 51

COUNSEL:

Mr J Briggs for the defendant
Mr J Tate for the Director of Mental Health
Mr S P Vasta for the Director of Public Prosecutions

SOLICITORS:

Legal Aid Queensland for the defendant
Crown Law for the Director of Mental Health
The Director of Public Prosecutions (Qld)

PHILIPPIDES J:

The Offences

1. The defendant is charged with the murder of Carmel Wuth on 29 March 2008.  He is also charged with a number of other related offences, namely enter a dwelling and commit indictable offence, misconduct with a corpse by interfering, rape and two counts of enter dwelling with intent.  The question of the defendant’s state of mind at the relevant times has been referred to this Court.

1. At the time of the offences the defendant and Miss Wuth, an elderly lady, were living in separate units at Trinity Gardens, an assisted accommodation centre on the Gold Coast.  The defendant had been residing there since late December 2007.  

1. The defendant told police that on the afternoon in question, he had looked through the window of Miss Wuth’s unit and observed that she was lying in bed reading.  It appears that the defendant decided at this time that he would kill Miss Wuth.  Later that evening the defendant gained access to Miss Wuth’s unit through an unlocked sliding glass door.  He was armed at the time with a knife and a man’s tie.  Upon entering the unit, the defendant approached Miss Wuth and placed the tie around her throat in an attempt to strangle her.  She began to scream and he stuffed a pair of socks in her mouth.  The defendant viciously attacked Miss Wuth, and then stabbed her in the neck with the knife he was carrying, leaving it embedded there.

1. The defendant told police that after he had killed Miss Wuth, he attempted to rape her, but was unable to obtain an erection.  He said that he left her unit and returned to his own unit and showered.  He had a cigarette and described feeling “relieved” because voices he had been hearing had disappeared.  He returned to the deceased’s unit taking with him a number of adult magazines in an attempt to gain an erection.  He eventually digitally penetrated the victim and ejaculated, after masturbating.  After leaving the unit the defendant returned a further time in search of money, eventually taking coffee and milk.

Antecedents

1. The defendant was born on 19 October 1971.  He was raised in Sydney, the child of Italian immigrants.

1. Dr Neillie, who has been the defendant’s treating psychiatrist, was able to provide a longitudinal history for the defendant, having also had the opportunity of interviewing the defendant’s mother.  It seems that the defendant experienced motor and cognitive difficulties which became evident prior to his schooling.  These difficulties appear to have been a consequence of Rhesus Isoimmunization.  Dr Neillie’s evidence was that defendant’s mother described a history of delayed developmental milestones in terms of language and motor development.  There was a picture at school, and particularly in the latter years of secondary school, of intellectual problems.

1. From his late teenage years the defendant began to gamble and engage in a pattern of binge drinking.  After leaving high school following year 10, the defendant worked for a time as an apprentice hairdresser in his mother’s salon in Sydney.  After his mother forced him to leave home, the defendant lived in a hotel cellar, before moving to the Gold Coast around about Easter 1993.  His mother and father followed very soon after.  His parents divorced in 1988 but continued to reside together until his father’s death in 2002.  The defendant lived with his parents during that time, working in a number of unskilled roles and collecting Centrelink benefits when unemployed. 

1. In 2006 the defendant’s mother returned to Italy to live, where she remarried.  This move appears to have affected the defendant profoundly and there is mention in Dr Neillie’s report of the defendant ringing his mother several times a day and asking her to return to Australia.  The defendant’s mother reported to Dr Neillie that when she did return, in February 2007, she noticed a marked deterioration in the defendant’s mental health, describing him as “agitated, upset and shaking”.  She eventually returned to Italy later in 2007 but arranged for the defendant to move in with an elderly lady who was a friend.  The arrangement did not continue.

1. The defendant reported that in the early 1990’s his general practitioner had suggested that he suffered from schizophrenia.  However, he had no admissions to hospital, nor consulted a psychiatrist until mid 2007, when he was referred to the Homeless Help Outreach Team.  Throughout 2007 there is a recorded decline in his mental state.  During that time he began exhibiting self harm behaviours and was hospitalised on a number of occasions.  Following discharge from hospital, the defendant experienced the breakdown of his accommodation situation a number of times, being asked to leave several hostels.  He eventually became involved with a Homeless Persons Assistance Team on the Gold Coast. 

1. Summarising the situation during that period, Dr Neillie gave the following evidence:

“Looking at the hospital records during this time, there’s a fairly consistent picture of anxiety symptoms, distress, low tolerance for frustration and what is described as poor impulse control, poor problem solving, self-harm, suicidal thoughts.  There are also, at times, some description of possible psychotic symptoms, possible perceptual disturbance, that was made at the Gold Coast and it was referenced in relation to an assessment [the defendant] had at the Royal Brisbane Hospital, although on none of those occasions was it considered that he had a psychotic illness.  At the time he received follow-up again from the homeless team on the Gold Coast, the notes indicate an ongoing picture of those anxiety symptoms, of distress and despite some, what would appear to be, initial improvement when he was first placed at the retirement village.  Thereafter the notes do record difficulties, they record behavioural difficulties, they record anxiety such that he was at one point commenced on an antidepressant medication, and … I believe those difficulties persisted and in fact worsened from that initial period of stability at the retirement village up until the time of the current charges.”

1. The defendant had been told to leave Trinity Gardens.  There had been numerous incidents and difficulties with the defendant, and on a number of occasions the police became involved in these.  The defendant had applied to reside at a caravan park, but on 28 March 2008, he had become aware that the caravan park had not accepted his application and the Department of Housing was going to be many months in arranging alternative accommodation.

1. From the police record of interview, it seems that the defendant’s indicated motivation for the killing was that being in gaol would provide him with a permanent place to live.  He stated to the interviewing officers, “I couldn’t handle thinking I was gonna be homeless because a few of the places I had tried … just didn’t come about so I thought … I’d rather have a bed somewhere”.  After further questioning he said, “I didn’t want to experience being homeless and I thought gaol seems to be a good idea to have a bed and… that’s why I kinda did it”.

The Expert Evidence

Dr Neillie’s evidence

1. In his report, Dr Neillie made the following observations concerning diagnosis.  Psychometric testing performed in 2007 had shown the defendant to have borderline intellectual functioning.  He considered the defendant to be exhibiting signs of autistic traits.  Prior to his mother leaving for Italy in 2006, there was evidence of the defendant suffering both Dependant Personality Traits (ICD10, F60.7) and Dissocial Personality Traits (ICD 10, F60.2).  There was also a clinical picture consistent with Pathological Gambling (ICD10, F63.0).

1. Dr Neillie noted a longer standing diagnosis of Schizophrenia, for which the defendant was prescribed antipsychotic medication, but found little evidence in support of that diagnosis.  Dr Neillie observed that, from the defendant’s self report, there was “some evidence to suggest the development of psychotic symptoms in the form of musical hallucinations and auditory hallucinations with commands.  However, the clinical opinion at the time as to these symptoms was that they represented a form of internal dialogue”.  Dr Neillie accepted that it was possible in view of the defendant’s “pre-existing intellectual and personality vulnerabilities, that in the context of psychosocial stressors and in the context of no longer being prescribed anti-psychotic medication, that he developed a psychotic disorder of a transient nature”.  However, Dr Neillie noted that the psychotic symptoms the defendant described resolved immediately following the events the subject of the charges, and that while in the High Security Inpatient Service there was no evidence to support a diagnosis of an underlying psychotic disorder.

1. Dr Neillie considered that the collateral information indicated a clinical picture of an Adjustment Disorder (ICD10, F43.2).  Following his mother’s move back to Italy in 2007, the evidence indicated a deterioration in the defendant’s level of functioning and mental state on the background of personality and cognitive vulnerabilities.  From assessments performed as an inpatient and in the community in 2007, there was also evidence in Dr Neillie’s opinion consistent with the development of a Generalised Anxiety Disorder (ICD10, F41.1).  Dr Neillie considered that the defendant was, at the relevant time, experiencing anxiety symptoms and limited coping strategies in the context of moving between different types of accommodation. 

1. Dr Neillie concluded, in relation to the defendant’s state of mind, that the offences:

“… occurred in the context of [the defendant] demonstrating a very low frustration tolerance, limited coping strategies and a background of borderline intellectual functioning and personality vulnerabilities.  In addition, the available collateral information indicated the presence of possible autistic traits.

At the material time [the defendant] also described conflict with residents at the retirement village, and in addition, has described persecutory beliefs involving certain residents.  He had identified the victim of the alleged offences as a resident who had been creating “noise which had caused him frustration.”

Leading up to the time of the alleged offences [the defendant] has described hearing residents at the retirement village make derogatory comments about him and has also alleged that he received verbal threats including that he was going to be placed in a psychiatric hospital. 

[The defendant] has also described experiences which could be consistent with auditory hallucinations.

In my opinion, the combination of the above clinical factors would have contributed to [the defendant’s] mental state at the material time.  Although he has described possible psychotic symptoms, the content of these symptoms, for example the auditory hallucinations, involved commands to steal.  Such symptoms would have contributed to his levels of frustration and the development of such symptoms may have acted as a disinhibiting factor at the material time.  However, [the defendant] has also stated that his motivation at the time was to go to avoid homelessness, [and] was to go to prison where he believed he would receive the ‘correct treatment’.”

1. While Dr Neillie did not believe the defendant would have been experiencing such a state of mental disease or natural mental infirmity as to deprive him of any of the relevant capacities, he supported a finding of diminished responsibility, stating in his report:

“… were the Court to consider that the combination of [the defendant’s] pre-existing borderline intellectual functioning, personality vulnerabilities, autistic traits, anxiety disorder and possible psychotic symptoms represented an abnormality of mind, then [the defendant] was on the balance of probabilities in such a state of abnormality of mind as to substantially impair his capacity to know that he ought not do the act or make the omission.”  

1. In giving evidence, Dr Neillie described the defendant’s circumstances in the following manner:

“… he was frustrated and he was angry at residents who he blamed for tormenting him, who I think he attributed blame for his impending eviction, and who had tried to set limits on occasions with [the defendant]…  However, I still think to come to the decision that he did is a function of the disorder that he was experiencing at the time.  I think he saw the decision that he made, he thought and he has stated, would lead him going to gaol.  However, I still think that he thought … that it was morally justified to do what he did in order to again be secure, to be looked after. … I think the anxiety, the fear that the impending eviction created in him contributed to his impairment in his ability to reason and his decision-making ability leading up to the time he made the decision at 3 o’clock.”

Dr Fama’s evidence

1. Dr Fama examined the defendant on 9 December 2008 and 28 January 2009 and provided a report dated 31 March 2009.  In his report Dr Fama opined that the clinical features described by the defendant both to the police and psychiatrists, indicated a mental disease characterised by paranoid thinking, auditory hallucinations, and a marked coarsening of personal judgement.  Dr Fama concluded that the defendant was suffering from paranoid schizophrenia, which was associated with morbid dependency, marked autism and antisocial traits, but did not see those problems as constituting separate identifiable personality disorders.  However, Dr Fama subsequently revised that opinion, as he explained when giving oral evidence:

“I think that my original diagnosis is not really sustainable.  At the time, I accepted that [the defendant] had … experienced hallucinations and delusions.  I believe that that is so, but I think that they were transient and somewhat insubstantial, and I think the overall clinical picture, on review, is more one of simple schizophrenia and I offer the diagnosis of simple schizophrenia as an alternative to my original impression of paranoid schizophrenia”. 

1. Dr Fama further elaborated, stating:

“I believe that there is essentially no great difference in the diagnoses [offered by the reporting experts] … I do think that multiple diagnoses are to be avoided if it’s at all practicable. …  So I would not diagnose, for example, an anxiety disorder along with other things in this man because anxiety, I believe, is secondary to another process.  We’re dealing here with what can be called a spectrum from personality disorder, usually of the schizoid kind, through to simple schizophrenia to, perhaps, paranoid schizophrenia, but I think that that can discarded.  The problems with this kind of diagnosis have been recognised internationally and, for example in the DSM coding, I believe ‘simple schizophrenia’ was deleted and replaced by ‘schizoid personality’. …  Whereas in ICD-10, the World Health Organisation classification, the two exist or coexist, though there seems to be not a great deal of distinction between the two. … I believe the chief distinction is that simple schizophrenia presents as a more severe disorder and, secondly, that the history indicates that it had a beginning at some point in time rather than a developmental realisation from innate personality development.  … These things are often hard to distinguish I believe … descriptively, simple schizophrenia is a fair description of this man’s disability, which has gone on for a number of years and has been manifest at times by more obviously schizophrenic features, but those have not lasted a very long time.”

1. Dr Fama described the negative symptoms demonstrated by the defendant as follows:

“… he was very restrictive in his affect and very blunt and unable to express emotion in the normal way.  He also had a limited ability to describe himself, to describe his own thoughts and I believe he had some impairment of thinking, a poverty of thinking.  Thirdly, I believe that his social abilities had deteriorated quite markedly.  He showed little or no personal social enterprise of any kind.  He sat back and waited for others to provide for his needs.  So, I think those were features characteristic of residual or chronic schizophrenia and certainly characteristic of simple schizophrenia, but the main thing that I thought was important was the gross impairment of affective response.”

1. Dr Fama did not support a defence of unsoundness of mind, given that he was unable to find a deprivation of any capacity.  However, he considered that there was a substantial impairment of the defendant’s capacity to know he ought not to do the acts resulting in the killing of the deceased.  Dr Fama opined that the defendant saw himself as having little choice but to retaliate violently against those he believed to be persecuting him and to be morally justified in doing so.  Dr Fama considered that the fact that the defendant acted in a deliberate and purposeful manner did not detract from the defendant being substantially deprived; it pointed to the nature of his psychopathology.  While Dr Fama accepted that anger and revenge were factors in the defendant’s conduct, it was essentially an extravagant reaction to his poor situation “that could be explained only in the framework of psychotic process”.  The decisions that the defendant made were disproportionate and bizarre.

1. In describing the defendant’s mental state at the relevant time, Dr Fama observed:

“He was very withdrawn, very suspicious, hostile towards others, believing himself the victim of persecution for which there was some actual basis of reality, because he had provoked others.  And most characterised by a very profound lack of … appropriate emotional responsiveness, which ultimately ended in what to others seemed an extremely callous attitude … whereby his whole thinking revolved around his own personal comfort and security, his wish to have his own lodgings and secure accommodation and so on, which predominated in his thinking to such an extent that he was led to carry out a most horrible crime in order to facilitate this purpose of his personal stability.”

Dr Reddan’s evidence

1. Dr Reddan examined the defendant on 12 and 28 November 2008 and provided a report dated 2 March 2009.  In relation to the question of diagnosis, Dr Reddan observed in her report that formal testing had confirmed that the defendant was not significantly intellectually impaired and that, although the defendant was “of low average intellect, there is no evidence that he has an intellectual impairment or disability”.  She also opined that there was no evidence that the defendant suffered from a pervasive developmental disorder or an autistic spectrum disorder.”  In her report she stated:

“[The defendant’s] longitudinal history would suggest that his behaviour and interpersonal attitudes could be conceptualised as representing a Personality Disorder Not Otherwise Specified (DSM-IV-TR) with significant dependent and antisocial personality traits.  As a result of his marked (almost infantile) dependency needs he was experiencing persistent anxiety after his mother did not return from Italy and it is likely that this anxiety was at least initially perpetuated by his abuse of benzodiazepines.  However at the time of the index offences, the available material does not suggest he was abusing benzodiazepines, nor alcohol or other drugs.
… current nosologies such as the DSM-IV and the ICD-10 do not in many respects convey the nature of [the defendant’s] problems.  Although, as previously stated, there is no evidence to suggest that he suffers from a pervasive developmental disorder, his longitudinal history and presentation suggest that, due to a likely combination of factors including his inherent temperament, his upbringing during his childhood and the models of behaviour provided by his parents and other family members, [the defendant] had never mastered adult developmental tasks and he had essentially remained ‘stuck’ at an earlier developmental level.  His longitudinal history would suggest that although he was capable of work and he had an appreciation of lawful conduct; he had never developed more adaptive coping mechanisms nor a capacity for reciprocal relationships with others.  His dependency needs lacked maturity and could be characterised as child like or almost infantile.  Thus, he manifests a developmental arrest rather than a developmental disorder.”

1. Dr Reddan did not support a defence of unsoundness of mind to any of the charges.  In her view there was no evidence that the defendant was suffering from a mental disease such as to deprive him of any of the three relevant capacities.  She did not share Dr Fama’s opinion that the defendant suffered from simple schizophrenia and found no evidence that the defendant had a long term psychotic disorder such as Schizophrenia or Bipolar 1 Disorder, nor that that he was psychotic, that is, out of contact with reality at the relevant time.  In evidence, she stated:

“I think the closest diagnosis would really be that of a personality disorder, not otherwise specified, with significant dependent and anti-social personality traits, and I believe his marked problems with anxiety, which were very significant, arose from that condition primarily, although I note that, for example, some of the psychiatrists at Gold Coast Mental Health Service had conceptualised he was having a generalised anxiety disorder, and I wouldn’t necessarily substantially disagree with that, but I think it was a secondary problem.  I don’t agree that [the defendant] is particularly schizoid.”

1. In her evidence, Dr Reddan opined that the defendant could be accepted as suffering from an abnormality of mind, noting that the defendant was at the end of the bell curve of personality functioning and suffering from a significant personality disorder.  But Dr Reddan did not support a defence of diminished responsibility, her main concern being in holding that there was a substantial impairment of the defendant’s capacity to know he ought not to do the acts (which was the only capacity she considered to be in issue and which she accepted was impaired).   

Dr Schramm’s evidence

1. Dr Schramm interviewed the defendant on 21 August 2008 and provided two reports, one dated 4 December 2008 and a further report dated 21 May 2009.  In his initial report, Dr Schramm opined that on reviewing the material there seemed to be strong evidence of intellectual impairment with attendant marked functional and interpersonal deficits.

1. Dr Schramm opined that, although the defendant did not present as an archetypal character of Asperger’s syndrome, his gross disability in terms of empathy was suggestive of a person within the Autistic Spectrum Disorders and that it was the closest diagnostic category to explain what appears to have been lifelong oddness, impaired empathy and dysfunction.  Dr Schramm also considered that one could see the defendant as exhibiting the grossest of personality disorders, with features of Dependent and Borderline Personality Disorder.

1. He did not support a diagnosis of psychotic illness.  He noted the report of the presence of voices as described by the defendant, but considered the description to be inconsistent and more reminiscent of internal dialogue or pseudo-hallucinations occurring whilst extremely stressed.  He opined that the defendant fulfilled the criteria for a Generalised Anxiety Disorder given the grossly deficient coping skills afforded by his pathological personality. 

1. Dr Schramm did not support a finding of unsoundness of mind as he did not consider there was a deprivation of any of the capacities.  However, he did support a defence of diminished responsibility, noting that the defendant’s “grossly impaired judgment and disturbed ability to empathise afforded by the combination of the conditions noted would have rendered him substantially impaired in his ability to reason”.

1. Dr Schramm’s second report, dated 21 May 2009, was compiled after he had an opportunity to view the reports of the other clinicians and all other relevant material, including the police interviews.  Dr Schramm remarked that the divergence of opinion regarding diagnosis, which was not limited to those who had examined the defendant after the offences in question, pointed to the fact that the defendant’s (widely accepted) gross disturbance did not fit neatly within any one psychiatric diagnosis.  In his second report, Dr Schramm commented on the diagnoses which had been raised by the reporting clinicians in their reports.

1. As to the issue of intellectual impairment, Dr Schramm stated:

“I accept that the testing we have available has IQ scores placing [the defendant] only in the range of borderline intellectual impairment (the DSM-IV cut off for mental retardation is an IQ of 70).  In December 2008 Lucille Douglas found a verbal IQ of 91, performance IQ of 75 – full scale IQ 83.  In September 2007, Letecia Aust of the GCH found a verbal IQ of 83, performance IQ of 72 – full scale IQ 76.  I maintain that he should still be considered to be significantly intellectually impaired and that significant weight should be given to his functional impairment rather than relying only on these test scores.”

1. As to the diagnosis of Asperger’s Disorder, Dr Schramm moved away from that  diagnosis and more towards schizoid personality, stating:

“I appreciate his presentation is not classic of Asperger’s (as argued by Dr Reddan) in so much there is no obvious history of ‘restricted repetitive and stereotyped patterns of behavior, interests, and activities’[1] (or ‘egocentric preoccupation with unusual and circumscribed interests’) or that self-awareness (often producing anxiety and frustration in the sufferer) that they do not understand other people.  I reiterate that my experience with Asperger’s disorder is limited and concede that this may not be the correct diagnosis, but I am struck mostly by his gross empathic impairment in suggesting this diagnosis.  On reflection, the term schizoid personality may be a better classification for these deficits.  My understanding is that the differentiation between the two concepts is often one of debate and that some would argue that the two are often indistinguishable or that Asperger’s disorder is a form of schizoid personality.

Further, it may be better to just consider that it is his low IQ with its attendant very poor social function and retarded emotional and empathic development that would suffice to explain his gross oddness.”

[1]Criteria B of DSM-IV Criteria for Asperger’s Disorder.

1. In respect of the diagnosis of schizophrenia, Dr Schramm rejected the opinion that was initially put forward by Dr Fama of schizophrenia based on the defendant’s “paranoid thinking, auditory hallucinations and a marked coarsening of personal judgement.”  Dr Schramm however accepted that it was a reasonable differential diagnosis, especially to explain those possible hallucinatory experiences.  In this regard, Dr Schramm stated:

“I note that there is little in his previous history to indicate delusions being present then.  I would also argue that a tendency to paranoia and sensitivity are entirely consistent with some persons with a schizoid personality.

Further, his history of voices/music seems circumscribed only to the weeks leading to the offence.  Hallucinations did not seem to have been a consistent feature of his presentation.  …  Even further, I was not convinced that the qualities of those in the months leading to the offences represented hallucinations, especially his report that they had suddenly stopped as soon as he’d killed her and had not returned.  I maintain my position that, whilst they may represent hallucinations, they can as easily be understood as pseudohallucinations of an anxious man misinterpreting internal dialogue and sounds as egodystonic.

I accept that his odd and stilted affect is reminiscent of that seen in chronic schizophrenia, but believe that it is just as consistent with one with low IQ and/or Asperger’s syndrome/schizoid personality.”

1. The conclusions reached by Dr Schramm after considering all the available material were as follows:

“This extra evidence only confirms my impression of [the defendant] being a man of low intellect, extremely poor social functioning and a tendency to anger and anxiety as a result of his grossly deficient coping ability and problem solving.  He readily alienated himself from those he was living with, cementing his view that he was hard done by and with few options, such that he was experiencing mounting desperation at looming homelessness.  His actions in his killing and assaulting the victim seem to have been perfectly justified in his own mind given his perception of mistreatment by the victim, other residents and probably, in a primitive sense, the world at large.

…

At the end of the day, I maintain that whatever name we give his condition, all of us who have interviewed him (with the possible exception of Dr Reddan) seem to feel that he suffers from a very retarded sense of right and wrong and it is this, exacerbated by that anxiety and agitation present for weeks (which I would class as an adjustment disorder), which I believe can be invoked to argue that his ability to reason about the wrongness was substantially impaired, despite the fact that he has obviously committed the offence in the most callous and planned fashion, such that I stand by my suggestion that he is of diminished responsibility.

It would seem that the only potential difference this report may imply surrounds the issue of whether or not my now preferred diagnosis of schizoid personality (if he cannot be considered to suffer from Asperger’s Disorder) in association with some intellectual impairment and an adjustment disorder fulfils the Court’s understanding of ‘abnormality of mind’. While I appreciate that personality disorders are not considered ‘mental diseases’ when it comes to section 27 of the Criminal Code, I maintain that he was still lumbered with that impaired enduring moral reasoning which you may argue is a ‘condition of arrested or retarded development’ as per section 304A.”

1. In giving evidence, Dr Schramm confirmed the views expressed in his report, opining that the defendant suffered from a severe personality disorder that had features of schizoid and dependant traits.  Combined with that was an intellectual impairment, which he considered to be a diagnosis available taking into account functional ability.  Dr Schramm opined:

“At the time of the offence … [the defendant] was suffering from a severe decompensation in his usual poor level of functioning which featured anxiety and desperation and … for want of a better term, I’ve diagnosed that as a generalised anxiety disorder.  I accept that a more appropriate diagnosis might be an adjustment disorder with an anxious mood.”

1. Dr Schramm’s evidence was that:

“… the clearest way that I can understand this case is that [the defendant] is a man who has lifelong – not as a result of a disease but lifelong difficulties in interacting with other people, in being able to look after himself emotionally and practically, who – and as part of that, has got a gross impairment in ability to understand others, to appreciate the rights of others, to understand social situations.  On that bedrock, on that fertile ground if you like, of abnormality comes along the mounting desperation and anxiety afforded by his looming eviction such that he is then left in a situation where his very meagre abilities to problem solve and sort himself out have completely run out and he is left teetering on the edge of being able to behave rationally.  He, in his extremely, I say, bizarre and idiosyncratic way of thinking, he had reasoned, in that abnormal way of reasoning, that to do something like this was justified because these people were going to be responsible for having him being evicted and also reasoned that to do something like this would give him the result of having somewhere to stay and get the kind of treatment or care that he felt that he needed and wasn’t getting at that point.”

1. In explaining the defendant’s state of mind at the relevant time, Dr Schramm stated:

“To put it into context, he’d been evicted from, I can’t tell you the number, but three or four or five hostels and boarding houses in the previous year or so.  He was at the Gold Coast Hospital four or five months before this.  They transferred him all the way up to Brisbane.  I think he only lasted at Windsor Lodge for a week or so before they said, ‘We can’t have you’, [and] sent him back to Royal Brisbane.  Then he went back down on the streets here until he was caught up again by the Schizophrenia Fellowship and admitted there.  He certainly had a repeated history of being kicked out ...  It was almost as though the last straw for him was this caravan park and even they said no.  So, he was a man who was – had put his hand up in the inept and maladaptive way that he had, in those ways that I talked about, whether they be threatening suicide, creating a disturbance, hypochondriacal complaints at times, often complaining of suicide and anxiety, and none of those had ever resulted in him getting this ideal, caring situation.  So I think that he was truly at the … end of his tether and a desperate man.”

Conclusion as to the defendant’s state of mind

1. None of the clinical experts considered that the defendant suffered from unsoundness of mind.  Accordingly, I find that the defendant was not of unsound mind in relation to any of the offences charged.

1. The only issue raised then concerned whether, in relation to the charge of murder, the defendant was of diminished responsibility. 

1. In Schedule 2 of the Mental Health Act 2000, “diminished responsibility” is defined as “the state of abnormality of mind described in the Criminal Code, section 304A”. 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.”

1. Thus for the purposes of s 304A, what is required to be considered is:

(a)  whether at the relevant time the defendant suffered from an abnormality of mind arising from a condition of arrested or retarded development of mind or from an inherent cause or induced by disease or injury; and

(b)   whether such abnormality of mind substantially impaired the defendant in one of the relevant capacities.

1. The issue of the defendant’s state of mind at the relevant time has been complicated by the dilemma which all the reporting psychiatrists had in adequately categorising the nature of the defendant’s condition in terms of one or two clear diagnostic categories.  This difficulty was compounded by deficiencies in the longitudinal history of the defendant’s condition.  I was greatly aided by the advice of the assisting psychiatrists, Drs Varghese and McVie, in relation to the clinical evidence, and in particular, in respect of the question of diagnosis.

1. As is apparent from the evidence outlined in detail above, three of the reporting experts (Drs Neillie, Schramm and Fama) supported a finding of diminished responsibility and opined that there was an abnormality of mind resulting in a substantial deprivation of the defendant’s capacity to know he ought not do the act, although in doing so they formulated diverging diagnoses and opinions as to what constituted the abnormality of mind.

1. Three of the psychiatrists considered that there was a disorder of personality, while Dr Fama favoured the ICD-10 diagnosis of simple schizophrenia.  In respect of the diagnosis of simple schizophrenia, Dr Varghese’s observations on the clinical evidence presented to the Court were that, while the evidence as presented by all psychiatrists did suggest the possibility of simple schizophrenia (in particular as to issues such as callous indifference to others, lack of empathy, hypochondriacal concerns, and  inability to function in almost all domains of life while having intellectual capacity to do so), the overall evidence did not support the diagnosis.  He commented:

“In particular the longitudinal history as described by Dr Neillie does not describe a shift from an earlier period of normal functioning, which is essential to the diagnosis.  Equally important is that while Drs Schramm and Fama considered that the mental state was reminiscent of negative schizophrenia, that is schizophrenia without positive symptoms, this was not supported by Drs Reddan and Neillie.  Dr Neillie has known the defendant over a long period and his observations that the negative symptoms are not a predominant feature of the presentation is difficult to ignore.”

1. Likewise, Dr McVie offered the following comments on the evidence:

“I would say the evidence really isn’t clear as to whether there had been a deterioration in function over the past 15 years or whether he had been functioning at the same level since his teens.  Possibly the fact that he was once able to work at his mother’s hairdresser’s shops indicates a previous high level of functioning … but there’s insufficient evidence provided to support Dr Fama’s hypothesis of simple schizophrenia, which would require a clear history of deterioration of functioning.”

1. On that issue of whether the defendant suffered from schizophrenia at the relevant time, I prefer the views expressed by Drs Neillie, Schramm and Reddan in rejecting the diagnosis of schizophrenia.  I found the observation and comments of the assisting psychiatrists particularly helpful on this issue.

1. On the question of the presence of a personality disorder, I note the general agreement among Drs Neillie, Schramm and Reddan, and although Dr Fama did not make that diagnosis, Dr Varghese’s observation on the evidence was that, in the absence of simple schizophrenia, there is no alternate way of understanding the clinical picture Dr Fama described.  The personality disorder was variously described as having mainly schizoid or autistic traits but also with dependant and dissocial features.

1. Both assisting psychiatrists supported the expert opinion concerning the presence of a personality disorder.  Dr Varghese’s clinical advice to the court in respect of the evidence presented regarding personality disorder was that:

“Personality disorder seems to fall in what DSM-IV calls odd eccentric cluster with paranoid, schizoid and schizotypal features.  The psychiatric evidence also suggests there are some antisocial features and narcistic features and marked dependency.  The dependency, however, does not seem to arise from any attachment or feeling for others with a fear of rupture of relational bonds as we see in dependant personality disorder, rather the dependency is focussed on meeting personal needs of a basic type.  In other words, he is unable to function without the assistance of others and he needs the assistance of others to function, even though he has no feelings or care for them.

What the clinical evidence indicates is that this a very profound disorder of personality, indeed, with inability to function in several domains of life, including activities of daily living and it is, therefore, not surprising that Dr Fama should consider that it resembles schizophrenia without psychotic symptoms.”

1. In Re GMB [2002] QMHT 1, Chesterman J held that personality disorder alone does not constitute an abnormality of mind.  That view was not disavowed by the majority in McDermott v The Director of Mental Health; ex parte A-G (Qld) [2007] QCA 51. In that case, at first instance, Holmes J held that, while a personality disorder did not itself amount to an abnormal state of mind, it could be an inherent cause of such a state. I agree with that proposition, which was not the subject of any dispute in this case, nor challenged on appeal in McDermott.

1. The issue then is whether the expert evidence supports the conclusion that the defendant was suffering from another condition, which combined with personality disorder would constitute abnormality of mind.

1. Drs Neillie and Schramm were of the view that there was an intellectual impairment, but the evidence is somewhat problematical given that the IQ testing on two different occasions indicated that the defendant’s full scale IQ is in the normal range.  However, I accept that the defendant suffered from a functional impairment.  Dr Varghese’s comments concerning this issue were as follows:

“There is however a significant difference between verbal IQ and performance IQ, and although the psychologists have not commented on this, and Dr Reddan considered it was not of significance, it is likely to represent some degree of neurological compromise arising from birth or neonatal environment, and there is a history of probable kernicterous meaning raised bilirubin at birth.  Thus while there is no arrested development of mind with respect to intellectual function there is some compromise that would be contributing to functional impairment.”

1. I accept that the defendant suffered from a severe adjustment disorder, which as both Drs Neillie and Schramm put forward, arose out of the circumstances he found himself in when his mother went overseas.  I note the support for that position from both of the assisting psychiatrists.  Dr Varghese’s advice on the evidence was that:

“The evidence indicates a profound inability by the defendant to cope on his own.  There are multiple presentations to hospital – acts of self harm; threats of self harm; suicidal ideation; physical complaints and behavioural disturbance, including aggressive outbursts, aggression to others leading to eviction and multiple changes of a board.  There is also a suggestion of doctor shopping for medication.  These are apparently new behaviours in the absence of his mother’s support and could justifiably be called adjustment disorder.

Although DSM-IV cautions against a diagnosis of adjustment disorder in the presence of personality disorder, it does allow the diagnosis if there has been a change in behaviour and mood and emotion in relation to a specific stressor as against merely ongoing effects of personality alone.  In this case there is a specific stressor, the absence of his mother who provided support throughout his life, and moreover an ongoing stressor allowing the diagnosis to be made beyond the six months as required by ICD-10 but certainly allowable using DSM criteria.”

1. Likewise, Dr McVie provided the following advice to the court:

“What is clear is the marked deterioration in function that has occurred since at least 2007.  Dr Neillie’s evidence was very good in relation to the facts about a change in functioning at that time.  Now, Dr Neillie was assisted by his observations of [the defendant] over many months in high secure.  He described anxiety symptoms and these had been diagnosed variously by his treating team at the Gold Coast as a generalised anxiety disorder.  Dr Neillie preferred the diagnosis of adjustment disorder, and as Dr Varghese described, it would be an adjustment of abnormal personality to a relatively normal stress.”

1. I consider the evidence presented by Drs Neillie and Schramm in relation to the defendant suffering from an adjustment disorder to be cogent and persuasive.

1. I accept that the defendant was suffering from an abnormality of mind at the time in question.  The abnormality of mind arose from an inherent cause, namely the defendant’s profound personality disorder, and was combined with adjustment disorder with anxiety symptoms, which was present in the setting of neurological compromise contributing to a significant deficit in terms of functional impairment.  This was largely the view of Drs Neillie and Schramm.  I note that Dr Reddan did not dismiss their position.

1. The issue that next arises is whether the abnormality of mind, that I am satisfied the defendant suffered from, was such as to substantially impair any of the relevant capacities.  As mentioned when reviewing the evidence, the only capacity in question is the defendant’s capacity to know he ought not do the act.  All reporters agreed that there was an impairment of that capacity and all (except Dr Reddan) saw the impairment as substantial.  I note that there was a period of some hours between the time the defendant decided on the course of events resulting in his killing the deceased, and his actually carrying them out.  It was a matter raised with the experts, but the clinical evidence of Drs Neillie, Schramm and Fama was that the abnormality of mind continued over that period.  Having considered the evidence carefully, I prefer the evidence of Drs Neillie, Schramm and Fama over that of Dr Reddan in respect of the severity of the defendant’s impairment of capacity.  I found particularly persuasive their analysis of the severity of the defendant’s impairment in the context of anxiety, a sense of hopelessness, lack of empathy, an impaired ability to make judgments and rigidity in thinking, occurring against a background of the defendant’s concern about the threat of eviction, and also a belief that he was being deliberately tormented.  I accept that that impairment was present at the relevant time.

1. In the circumstances, I am satisfied, on the balance of probabilities that at the material time the defendant was suffering from abnormality of mind which resulted in substantial impairment of the capacity to know he ought not to do the acts.

1. Accordingly, I find that the defendant was of diminished responsibility in relation to the charge of murder.  The defendant is fit for trial.  Proceedings against the defendant for the charge of manslaughter are to be continued according to law.

Findings and orders:

1. I make the following findings and orders:

1. That at the time of the alleged offences the subject of the reference the defendant was not suffering from unsoundness of mind as described in Schedule 2 of the Mental Health Act 2000 (Qld);

2. That in relation to the charge of murder, the defendant was of diminished responsibility as described in Schedule 2 to the Mental Health Act 2000 (Qld);

3.    The defendant is fit for trial;

4.    The proceedings against the defendant for manslaughter are to be continued according to law;

5.    The proceedings against the defendant for rape, enter dwelling with intent (two counts), enter dwelling and commit indictable offence, and misconduct with corpse by interfering are to be continued according to law.