Re RJD

[2005] QMHC 30

MENTAL HEALTH COURT

CITATION:

Re RJD  [2005] QMHC 030

PARTIES:

REFERENCE BY THE DEFENDANT'S LEGAL REPRESENTATIVES IN RESPECT OF RJD

PROCEEDING NO:

75 of 2004

DELIVERED ON:

8 June 2005

DELIVERED AT:

Brisbane

HEARING DATE:

8 June 2005

JUDGE:

ASSISTING PSYCHIATRISTS:

Holmes J

Dr J F Wood
Dr D A Grant

FINDINGS AND ORDER:

I find:
1. That the defendant was not of unsound mind,
as defined in schedule 2 to the Mental Health Act
2000, at the times of the alleged offences;
2. That the defendant is fit for trial.

I order that the proceedings against the defendant for
all of the alleged offences be continued according to

law.

CATCHWORDS:

MENTAL HEALTH – DECLARATION OR FINDING OF

MENTAL ILLNESS OR INCAPACITY –Where defendant is charged with various charges including indecent treatment of a child under 16 and unlawful carnal knowledge – where defendant suffers from mild mental retardation – where psychiatric opinion differs as to whether the defendant suffers from paranoid schizophrenia but evidence consistent as to defendant not being of unsound mind at the time – whether the defendant, at the time of the alleged offences, was deprived of the capacity to understand what he was doing, or the capacity of control, or the capacity to know that he ought not do the act pursuant to the Criminal Code, s 27 –whether defendant of unsound mind pursuant to the Mental Health Act 2000 (Qld), schedule 2 - whether the defendant was fit for trial

Mental Health Act 2000 (Qld), s 268, schedule 2

COUNSEL:

Ms S Ryan for the defendant
Mr W Isdale for the Director of Mental Health

Mr M Lehane for the Director of Public Prosecutions

SOLICITORS:

Legal Aid Queensland for the defendant
The Crown Solicitor for the Director of Mental Health

The Director of Public Prosecutions

1. HOLMES J:  RJD is charged with the following offences: four counts of indecent treatment of a child under 16 while under his care occurring between 21 January 2002 and 1 February 2002, two counts of unlawful carnal knowledge with a circumstance of aggravation occurring between 1 January 2002 and 1 February 2002, one of unlawful carnal knowledge with a circumstance of aggravation between 31 March 2002 and 9 April 2002, one of breach of a release condition on 22 March 2003, another of assault occasioning bodily harm on 26 March 2003, three breaches of bail on 23 April 2003, 1 May 2003 and 30 December 2003 and obstruct police on 30 December 2003 and a stealing on 9 September 2004.

1. I am told that two other charges, as they are characterised, of failing to appear and arrest under warrant, whatever that may be, have been disposed of. There is no dispute of facts presented in respect of the charges such as to give rise to a reasonable doubt under s 268 of the Mental Health Act 2000.

1. Of the unlawful carnal knowledge and indecent dealing charges, some arise out of the complainant's account of sexual assaults on her and others arise from RJD’s own account in his record of interview with the police of instances of sexual contact he says were initiated by the complainant.

1. Although Dr Fama takes the view that RJD suffers from paranoid schizophrenia and mild mental retardation, he does not consider him deprived of any relevant capacity so as to have been of unsound mind at the time of any of the offences.  Dr McVie agrees with the diagnosis of mild mental retardation but does not agree with the diagnosis of schizophrenia and does not see any basis for a finding of unsoundness.

1. Whatever view one takes of the proper diagnosis, RJD was not, on that evidence, of unsound mind pursuant to the Mental Health Act 2000 at the time any of the offences were allegedly committed and that is the finding I make.

1. The psychiatric evidence is also uniformly to the effect that RJD is fit for trial so far as all the offences other than those of indecent treatment and unlawful carnal knowledge are concerned.  The issue is this:  whether he is able satisfactorily to instruct counsel in his defence on those charges.

1. Dr Fama, as I have said, considers that RJD suffers from schizophrenia and he considers that he labours under a longstanding delusion of his attractiveness to young girls.  That is consistent with an opinion of Dr Stanton who saw RJD in 1999 and described him as “suffering delusions in regard to young girls requesting sexual favours of him” and also experiencing “hallucinations including hearing young girls calling out to him in public places requesting him to perform sexual acts on them.”

1. Dr Stanton's report was given in the context of charges against RJD, of which he was convicted, of indecent dealing with a seven year old girl.

1. Dr Fama says that he diagnoses schizophrenia on the basis that RJD has, now over some years, given the account of hearing voices and suffers from that delusion, that he is attractive to young girls.  Dr Fama says RJD's account of hearing those voices and of the content which he attributes to them is of a kind which an ordinary person would find absurd, and it is an account that has been given persistently over a number of years. In his interview with RJD Dr Fama took a history from him of having the experience of walking past a high school and hearing girls under the age of 16 expressing interest in sexual activity with him and also an account of hearing girls in television programs making remarks to him with sexual connotations.  RJD told Dr Fama that the complainant, who was 12 years old at the time of the relevant events, constantly wanted sex with him.

1. In his record of interview with the police RJD volunteered quite detailed accounts of the complainant initiating sexual activity, of her fondling his penis and of waking up to find her on top of him, naked, moving up and down with his penis in her vagina.  He gives some six accounts of sexual incidents in which the complainant was the active party.  Dr Fama says those accounts are not themselves delusional, although they are consistent with the more general delusion of his own attractiveness.  I would have considerable difficulty in seeing how, given their specificity and the absence of any other psychotic phenomena, they could be delusional; and I find it difficult to see that, even as a construction of actual events described by the complainant, they could be the product of delusional thinking.  The versions RJD gives are not simply a perspective of events which the complainant describes.  On occasion he gives a description of sexual activity initiated by the complainant but in a different room, in a different way, from that which she describes.  The versions are quite divergent and are not consistent simply with a particular construction, the product of delusion, put on the one set of events.

1. Dr Fama's view is that, although RJD has a good grasp of the criminal trial process, his capacity to give instructions to counsel would be impaired by his delusion about his own irresistibility. 

1. Dr McVie, on the other hand, finds no evidence of paranoid schizophrenia, nor does she think that RJD suffers from auditory hallucinations or delusions.  Rather she perceives RJD's accounts of sexual invitations from girls as reflecting a construction of actual interactions which justifies his own paedophilic tendencies.  She said it was bizarre, if he were suffering from delusions, that they occurred only in the context of his own sexual interests.

1. In this case of the two possibilities I prefer the more parsimonious view; that is, I prefer Dr McVie's evidence.  It is, I think, as Dr McVie observed, remarkable that no other psychotic phenomena than the claims of hearing sexual invitations are evinced in the material.  Those claims seem to me consistent with the self-justifying tenor of the accounts given to the police officers in the interview and to be an extension of that behaviour. That is to say, RJD places a complexion or construction gratifying to him or self-justifying, on events; not necessarily a particularly credible one but one which, one has to remember, occurs in the context of mild mental retardation.  It is a pattern which occurred also in relation to the earlier indecent dealing charge.

1. It is also significant that another feature of the tendency to self-justify is the claim of the complainant's wider promiscuity.  That feature, I think, is not particularly consistent with an explanation of a delusion of his own irresistibility.

1. Even if I did not take that view - that is to say even if I did not prefer Dr McVie's evidence to Dr Fama's - I would not be convinced that the existence of hallucinations which are not said to have played any part in the alleged offending, would preclude the giving of instructions about the specific events the subject of the charges here.

1. I find that RJD is fit for trial on all the charges.  That is not to say that

   
   

   RJD's approach, which has a good deal to do, I think, with his mild retardation, does not make the presentation of his defence rather complicated.