Re Richards
[2011] QMHC 26
•23 June 2011
MENTAL HEALTH COURT
CITATION:
Re Richards [2011] QMHC 26
PARTIES:
REFERENCE BY THE LEGAL REPRESENTATIVES IN RESPECT OF GARETH WILLIAM RICHARDS
PROCEEDING:
No 0117/10
DELIVERED ON:
23 June 2011
DELIVERED AT:
Brisbane
HEARING DATE:
15 June 2011
JUDGE:
Boddice J
ASSISTING PSYCHIATRISTS:
Dr McVie
Dr Sundin
FINDINGS AND ORDER:
The defendant was not of unsound mind as described in Schedule 2 of the Mental Health Act 2000 (Qld) at the time of the alleged offence;1.
The defendant is fit for trial;2.
The proceedings are to continue according to law;3.
Copies of the reports in the proceedings are to be provided to the parties.4.
CATCHWORDS:
MENTAL HEALTH – DECLARATION OR FINDING OF MENTAL ILLNESS OR INCAPACITY – Where defendant charged with attempted armed robbery – Where defendant has long-standing history of depression and substance abuse – Where defendant diagnosed with Bi-Polar Affective Disorder Whether there was unsoundness of mind at the time of commission of the alleged offence
COUNSEL:
K Prskalo for the defendant
K Parrott for the Director of Mental Health
J Thomas for the Director of Public Prosecutions (Qld)
SOLICITORS:
Legal Aid Queensland for the defendant
Crown Law for the Director of Mental Health
Director of Public Prosecutions (Qld)
Gareth William Richards (“the defendant”) is charged with one count of attempted armed robbery alleged to have been committed on 2 December 2009. By reference dated 13 May 2010, the defendant’s legal representatives referred the question of the defendant’s mental health to this Court. It is not in dispute that the defendant is fit for trial. The issue in contention is whether the defendant was of unsound mind at the time of commission of the alleged offence.
“Unsound mind” is defined in schedule 2 to the Mental Health Act 2000 (Qld) (“the Act”) in the following way:
“‘unsound mind’ means the state of mental disease or natural mental infirmity described in the Criminal Code, section 27, but does not include a state of mind resulting, to any extent, from the intentional intoxication or stupefaction alone or in combination with some other agent at or about the time of the alleged offence.”
Relevantly s 27 of the Criminal Code 1899 (Qld) provides:
“27 Insanity
(1)A person is not criminally responsible for an act or omission if at the time of doing the act or making the omission the person is in such a state of mental disease or natural mental infirmity as to deprive the person of capacity to understand what the person is doing, or of capacity to control the person’s actions, or of capacity to know that the person ought not to do the act or make the omission.
(2)A person whose mind, at the time of the person’s doing or omitting to do an act, is affected by delusions on some specific matter or matters, but who is not otherwise entitled to the benefit of subsection (1), is criminally responsible for the act or omission to the same extent as if the real state of things had been such as the person was induced by the delusions to believe to exist.”
A reference to the Court is to be decided on the balance of probabilities.[1]
[1]Mental Health Act 2000 (Qld), s 405.
Background
The defendant was born on 16 January 1979. He has a prior criminal history in Queensland, New South Wales and the Northern Territory. That prior history includes property offences, including attempted armed robbery with actual violence. The defendant has, since his teenage years, regularly used alcohol and illicit substances.
The defendant has a long-standing history of depression. It was initially diagnosed whilst a teenager. He has been treated by mental health services on various occasions since that diagnosis. This management has, on occasions, included admissions to hospital. Those admissions have included admissions following attempted suicides or instances of depression and suicidal ideation. In 2008, the defendant was diagnosed with Bi-Polar Affective Disorder.
Circumstances of alleged offence
The Court brief sets out the facts of the alleged offence as follows:
“The defendant in this matter is Gareth William RICHARDS.
The complainant company is The Commonwealth Bank Branch located at 240 Queen Street Brisbane City.
The witnesses in this matter are known to Police.
At about 4:00pm on Wednesday the 2nd day December 2009 the defendant entered the complainant store and proceeded to line up in the queue for the bank tellers. The defendant was wearing a red t shirt and white cap. He had a goatie beard and long lair tucked into his distinct white cap. The defendant then made his way to counter number nine (9) and passed the teller a piece of paper. This piece of paper had a note written on it in pencil "This is not a joke. I have a gun. Please give me the money.
The bank teller then replied ‘What do you want me to do?’.
The defendant then replied ‘Just what the note says’.
The bank teller then proceeded to one of his colleagues and informed them of the Robbery. At this point the defendant left the Bank with no money and leaving the note behind.
A short time later Police from Brisbane City Criminal Investigation Branch attended the Commonwealth Bank and directed a Forensics Officer to conduct a fingerprint examination on the piece of paper handed over by the defendant. As a result of this fingerprint examination several fingerprint were located on the note. These fingerprints were identified as belonging to the defendant.
On Saturday the 5th day of December Police from Brisbane City Criminal Investigation Branch (CIB) received intelligence that the defendant was on a train from Brisbane to Nerang railway station. At about 2:15pm on this day Police from Brisbane City CIB located the defendant at Nerang railway station.
Police then arrested the defendant and transported him to Brisbane City CIB where he took part in a electronic record of interview. During this interview the defendant stated that he can not recall if he committed the offence but said he may have done it. He further stated that the hat depicted on CCTV footage provided by the bank is identical to one that he also owns, although he can not recall where that hat is.
The defendant was then transported to Brisbane City Watch house where he was formally charged in relation to this and another offence.
The defendant has previous criminal history including Armed Robbery.”
Medical evidence
Dr Schramm prepared reports dated 23 April 2010 and 24 May 2011. He opined that the defendant suffers Bi-Polar Affective Disorder type II. For the last year or so his mood has remained remarkably stable and he has not experienced any significant episodes of depression. Dr Schramm considers the defendant’s prognosis to be good given the defendant’s intelligence, insight and demonstrated ability to engage in a true therapeutic alliance. However, he will require significant support in the future because he has spent a considerable period of his adult life in custody and has only a few supports in the community. Dr Schramm had no concerns regarding the defendant’s fitness for trial.
Dr Calder-Potts examined the defendant on 10 March 2010. He opined that at the time of the offence the defendant was suffering from Bi-Polar Affective Disorder and was in a confused state of mind as a result of that disorder such that he was deprived of the capacity to know that he ought not do the act or make the omission. Dr Calder-Potts noted that the robbery attempt was disorganised with no obvious attempts to evade detection and a complete capitulation when confronted by the teller. The defendant was then unaccounted for for the next three days and could give little account of his behaviour when located by police. Dr Calder-Potts was of the opinion the defendant was fit for trial.
Dr Kovacevic examined the defendant on 1 October 2010. He opined that the defendant does have a Bi-Polar Affective Disorder which has been treated for a number of years. However, Dr Kovacevic found little evidence he was manic at the time of the offences. He noted he did not appear manic in the police interview and was not identified as manic on assessment in prison. Dr Kovacevic did not consider the defendant was deprived of any of the capacities at the time of the alleged commission of the offence. He noted the defendant had previous similar offending behaviour. The defendant was fit for trial.
Both Dr Calder-Potts and Dr Kovacevic gave evidence at the hearing of this matter. Each was cross-examined in relation to the significance of the defendant’s state in the days leading up to and immediately after the commission of the alleged offence.
Whilst Dr Calder-Potts agreed the defendant’s interview with police contained detailed information about his actions earlier that day, and did not evidence disorganised thinking,[2] he did not consider this interview represented a true picture of the defendant’s behaviour in the days leading up to the robbery.[3] Dr Calder-Potts considered the apparent ineptness in the robbery significant and supportive of his diagnosis that the defendant was at the time in a disorganised state and deprived of the capacity to know that he ought not to do the act. He based his opinion on the fact the robbery “was feckless, disorganised and he really has limited account of what happened in those intervening days…”[4] Dr Calder-Potts considered the defendant’s clarity in the later police interview was explicable. The defendant had had some days in which he may have been able to catch up on the sleep deprivation that had existed in the lead-up to the alleged commission of the offence.
[2]T 16/40.
[3]T 17/10.
[4]T 22/5.
Dr Kovacevic did not consider these matters significant. He had seen “much more chaotic behaviour than that”[5] and there wasn’t anything in the limited observations of the bank teller indicating any grossly unusual or bizarre behaviour on the defendant’s part.[6] He also considered the clarity with which the defendant appeared to be able to explain to police, during his interview, his actions on the day of his arrest significant. Whilst Dr Kovacevic accepted it was possible the defendant could appear better if the defendant had resumed taking his medication, or the correct dosage of his medication, after the alleged offence but before the interview, he considered it unlikely the defendant would go from manic to well within two to three days, with or without medication.[7]
[5]T 4/35.
[6]T 9/30.
[7]T 7/40; 8/40.
Conclusions
I found Dr Kovacevic’s evidence highly persuasive. His assessment was reasoned, logical and involved a consideration of all of the relevant circumstances. By contrast, Dr Calder-Potts’ evidence was not persuasive. It was largely based on an acceptance of the defendant’s assertions without any critical analysis of the likelihood of the accuracy of those assertions when viewed against the objective facts.
Having considered all the material, I accept and prefer the evidence of Dr Kovacevic. I am satisfied there is no evidence that at the time of the alleged commission of the offence, the defendant was acting in a disorganised way or had disorganised thinking such as to deprive him of any of the requisite capacities. The defendant’s actions were consistent with ineptness. It is highly unlikely the defendant would go from a manic state to being stable, even if he had resumed taking his medication, in such a short period of time.
This conclusion is consistent with the advice from the assisting psychiatrists, Dr McVie and Dr Sundin. Each advised that whilst the diagnosis of Bi-Polar Affective Disorder was appropriate, there was little evidence the defendant was, at the time of the commission of the alleged offences, deprived of the requisite capacity to know that he ought not to do the act. Dr McVie advised it was highly unlikely the defendant could go from a condition where he was deprived of the capacity to know he ought not to do the act, to a position where he appeared well within three days, with or without medication.
I am not satisfied the defendant was deprived of any of the relevant capacities at the time of commission of the alleged offence. The defendant was not suffering an unsoundness of mind at the time of commission of the alleged offence. I am satisfied the defendant is fit for trial. The charge should proceed according to law.
I order:
1. The defendant was not of unsound mind as described in Schedule 2 of the Mental Health Act 2000 (Qld) at the time of the alleged offence;
2. The defendant is fit for trial;
3. The proceedings are to continue according to law;
4. Copies of the reports in the proceedings are to be provided to the parties.
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