Re Rahim

[2008] QMHC 15

MENTAL HEALTH COURT

CITATION:

Re Rahim [2008] QMHC 15

PARTIES:

REFERENCE BY THE PATIENT’S LEGAL REPRESENTATIVE IN RESPECT OF BOB RAHIM

PROCEEDING:

No 0276 of 2006

DELIVERED ON:

31 March 2008

DELIVERED AT:

Brisbane

HEARING DATE:

31 March 2008

JUDGE:

Philippides J

ASSISTING
 PSYCHIATRISTS:

Dr J M Lawrence

Dr J N Chalk

FINDINGS AND ORDER:

1.    There are facts substantially material to the expert witnesses’ opinions so in dispute as to render a decision unsafe under s 269 Mental Health Act2000 (Qld);

2.    The defendant is fit for trial;

3.    The proceedings will continue according to law.

CATCHWORDS:

MENTAL HEALTH – DECLARATION OR FINDING OF MENTAL ILLNESS OR INCAPACITY – where defendant charged with one count of murder – whether facts substantially material to the opinion of expert witnesses are so in dispute as to render decision making under s 267 unsafe – whether the defendant is fit for trial

Mental Health Act2000 (Qld), ss 267, 269

COUNSEL:

Mr S Di Carlo for the defendant
Mr W Isdale for the Director of Mental Health

Mr B Campbell for The Director of Public Prosecutions (QLD)

SOLICITORS:

Sam Di Carlo for the defendant
Crown Law for the Director of Mental Health

The Director of Public Prosecutions (QLD)

1. PHILIPPIDES J:Mr Rahim is charged with the murder of his wife on 8 May 2004. The Court has heard evidence and submissions in relation to whether section 269 of the Mental Health Act 2000 applies, such that it would be unsafe to make a decision under s 267 of the Act.

1. In his report, Dr Fama opined that the defendant was not of unsound mind at the relevant time, nor of diminished responsibility.  He considered that the defendant acted as a result of extreme passion in the form of a jealous and vengeful fury.  Substantially material to Dr Fama’s opinion, as expressed in his report, are the factual circumstances concerning the extent and nature of the domestic violence between the defendant and the deceased.  That factual background is a matter which is in dispute, as is apparent from the material before the Court. The facts concerning domestic violence are also material to the opinion of Dr Fama concerning diminished responsibility. 

1. In addition, there is a further issue arising out of the area of dispute, and that is in relation to the defendant's credibility, in particular the circumstances pertaining to his presence at the house immediately before the relevant acts resulting in the death of his wife. Dr Fama also identified those circumstances as substantially material to his opinion. 

1. In his report, Dr Weppner stated his opinion that there was no support for a finding of unsoundness of mind, but supported diminished responsibility on the basis of his view that the defendant was suffering from a Major Depressive Episode with a substantial impairment of his capacity for control.  In oral evidence, Dr Weppner accepted that, although that he considered there was evidence of major depression operative at the relevant time, his opinion was based on the version of events given by the defendant.  He also accepted that the nature and extent of any violence in the relationship would be substantially relevant to his conclusion that there was an impairment of the capacity for control resulting from major depression; that is, whether there was a defence of diminished responsibility.  He accepted that the factual issues concerning the nature of the relationship between the defendant and his wife were unresolved, and confirmed that in those circumstances, he was only able to form his conclusion upon accepting the defendant’s version of events.  Dr Weppner clearly acknowledged that he was unable to enter into the arena to determine which version ought to be preferred.

1. Dr Varghese, who also provided a report, indicated that in his view the diagnosis of major depression was a robust one, but he accepted that there was a substantial dispute of fact which was relevant to his opinion on the question of whether or not the defendant was of diminished responsibility.  He identified the dispute as being not so much the issue of domestic violence within the relationship, but rather the question of whether the deceased was continuing to engage in an ongoing relationship with the defendant.  He saw that as a matter of significance in determining whether the defendant's capacity to control his acts was substantially impaired at the relevant time. 

1. It is therefore apparent that, in respect of all three experts, there are disputes relating to facts substantially material to their opinions.  In those circumstances, this Court is unable to make a finding as to the defendant's state of mind at the relevant time. 

1. The evidence before the Court is that the defendant is fit for trial.  Accordingly, the proceedings will continue according to law.  I grant leave to the parties to use the reports before the court in further proceedings.