Re Roberts

[2007] QMHC 25

MENTAL HEALTH COURT

CITATION:

Re Roberts [2007] QMHC 025

PARTIES:

REFERENCE BY THE DEFENDANT’S LEGAL REPRESENTATIVE IN RESPECT OF SHARON MAY ROBERTS

PROCEEDING:

No 0040 of 2006

DELIVERED ON:

18 September 2007

DELIVERED AT:

Brisbane

HEARING DATE:

18 September 2007

JUDGE:

Philippides J

ASSISTING
 PSYCHIATRISTS:

Dr J F Wood
Dr J M Lawrence

FINDINGS AND ORDERS:

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 offences.

2.    The defendant is fit for trial.

3.    Proceedings against the defendant are to continue according to law.

CATCHWORDS:

MENTAL HEALTH – DECLARATION OR FINDING OF MENTAL ILLNESS OR INCAPACITY – where defendant charged forgery with a circumstance of aggravation and fraud – where evidence that the defendant was suffering from a disease of the mind at the time of the alleged offending – where expert opinion differed as to whether the defendant was as a result of her mental illness deprived of any of the relevant capacities at the time of the alleged offending – whether the defendant was of unsound mind at the relevant times as described in Schedule 2 of the Mental Health Act 2000 (Qld) – whether the defendant is fit for trial

COUNSEL:

M J Byrne QC for the defendant
J Tate for the Director of Mental Health
C Kelly for The Director of Public Prosecutions

SOLICITORS:

Kerry, Connolly and Howard for the defendant
Crown Law for the Director of Mental health
The Director of Public Prosecutions (Qld)

1. PHILIPPIDES J:  Sharon May Roberts is charged with one count of forgery with a circumstance of aggravation.  She is also charged with one count of fraud. 

1. As to the first count it is alleged that between 16 May 2003 and 21 May 2003 the defendant forged a document purporting to be a renunciation of administration in a case of intestacy with intent to defraud, intending it to be used in evidence in the Supreme Court.  It is alleged that the defendant forged the signature of her deceased son's de facto, Rosemary Fay Jackson, in order to obtain access to moneys held in the estate of her deceased son.

1. In a police interview, the defendant indicated that she had obtained information from Ms Jackson as to the manner in which she signed her name, and with that knowledge she purported to sign a document in Ms Jackson’s name.

1. As to the second count, it is alleged that between 25 June 2003 and 14 July 2003 the defendant dishonestly obtained sums of money in the vicinity of some $68,000 from the estate of her deceased son and that once she obtained access to her son's estate she used the money for her own purposes and without an entitlement to do so.  The assets of the son's estate appear to have been a small superannuation policy and a more substantial life insurance policy.

1. The matter of the defendant's mental condition at the time of the alleged offences has been referred to this Court.  Dr Flanagan, the defendant's treating psychiatrist, and Dr Butler provided clinical reports and gave evidence before this Court.  The Court also had the benefit of a short report from a Dr Milford.

1. There is no dispute that the defendant suffers from a mental illness.  The defendant was initially seen by Dr Milford in 1998 in respect of a significant depressive illness requiring counselling and medication and also in association with the development of an addiction to gambling.

1. In his report he noted that the depression worsened when it was revealed that a son had been sexually molested as a child and he noted also that there had been a serious exacerbation of the illness with the tragic death of her son Ian in January 2003 whilst under care for a psychiatric illness.

1. Dr Milford referred the defendant to Dr Flanagan who has been the defendant's treating psychiatrist since about February 2003.  He diagnosed bipolar affective disorder, rapid cycling, with a propensity to mixed features both of depression or hypomania in the same episode.

1. In retrospect he considered her mixed unstable state was being made worse by the antidepressants which she was prescribed.  He could not say that she was at any stage deluded and he did not make a diagnosis of psychosis, at the highest he considered that she was at the relevant time bordering on psychosis.

1. Dr Butler accepted Dr Flanagan's diagnosis.  In his report he stated that he did not consider it likely that the defendant was suffering from hypomanic symptoms over the relevant period, however in his oral evidence to the Court he modified the opinion expressed in his report and agreed that the history noted by Dr Flanagan of the defendant's presentation during May and June of 2003 was consistent with symptoms of hypomania.  He therefore was prepared to accept the presence of hypomanic symptoms during the relevant period.

1. As I indicated, it is clear on the material before the Court that at the relevant times the defendant was suffering from a disease of the mind.  The matter which is problematic concerns the question of whether there was a deprivation of any of the relevant capacities.

1. Dr Butler did not support a defence of unsoundness because he was unable to find that there was any deprivation of any relevant capacity.  He noted that in the history obtained from the defendant she stated that she had been concerned by the debts her deceased son had accumulated in the context of his own financial problems and she was also concerned that her son's de facto would not properly manage the estate's funds.  She was concerned that the money from the estate be properly and wisely spent and that was the motivation which was indicated to Dr Butler.

1. Unfortunately that purpose was not ultimately achieved because it appears the defendant herself misspent substantial amounts of money as she indicated in her police interview.

1. Dr Butler concluded that at the time of the alleged offences the defendant's capacity to know that she ought not to do the acts was impaired as a result of her ongoing depressive symptoms and unresolved grief following her son's death.  However, he also observed that the defendant had a coherent plan of action, developed with the aim initially of protecting the monies of the estate, and concluded that although her capacity to know that she ought not to do the acts was impaired, it was not deprived.

1. Further, Dr Butler's evidence was that, even accepting that there were hypomanic symptoms present during the relevant period, the defendant was not as a result deprived of the capacity to control her conduct.  He did not see her conduct in terms of acting in response to a delusional belief associated with or caused by severe depression.  Accordingly, he opined that there was not any deprivation of the capacity to control her actions or, for that matter, to know that she ought not to do the acts.

1. Dr Flanagan, in his earlier reports, expressed the view that it was likely that the defendant's mental illness deprived her of the capacity to know that she ought not to do the acts and also the capacity to control her actions.  In his report of 8 December 2006 he observed that the defendant had given an account to Dr Butler that was different from the account which had been given to him.  He noted in this regard that he did not understand the defendant to have told him that she had been involved in forging any signatures, however he did observe that her narration had been rapid and disorganised and difficult to follow.  Dr Flanagan also in that report detailed an account given to him in relation to the defendant seeking to use money from the estate not for gambling but to repay a loan to her sister.  That, in turn, had been used to repay a debt in relation to misuse of moneys from her mother‑in‑law.

1. Dr Flanagan observed that at best the defendant was a very conflicted person and that when acutely ill displayed features of both depression and hypomania.

1. In his report of 8 December 2006 he expressed the opinion that on the balance of probabilities at the time of the alleged offences the defendant was, as a result of her bipolar affective disorder, deprived of the ability to control her actions due to loss of impulse control and muddled thinking.  He accepted that the defendant was not deprived but was seriously impaired in respect of her ability to know that what she was doing was wrong.

1. In his oral evidence Dr Flanagan indicated a degree of uncertainty as to his conclusions concerning the defendant's capacity to know that she ought not to do the acts in question.  I observe that Dr Flanagan gave a more detailed picture concerning the defendant's presentation and that Dr Butler was prepared, properly so, to defer to his evidence in relation to that presentation.  I accept Dr Flanagan's evidence in relation to that, in particular to the question of the presence of hypomanic symptoms.

1. However, Dr Flanagan gave conflicting and inconsistent views in relation to the issue of deprivation.  Dr Butler, on the other hand, in my view, was clear in his opinion in relation to the question of deprivation.  When asked to consider the possibility that the defendant was deprived because she had hypomanic symptoms that affected her impulse control and that caused muddled thinking, he was prepared to state that that possibility could not be unequivocally ruled out. 

1. Nevertheless, he explained his conclusion persuasively referring to the history that the defendant had provided to him that she had formed a coherent plan based on what seemed internally consistent logic to obtain money to protect the inheritance, so to speak, of the grandchildren because she was concerned about the deceased's de facto spending that money.  He accepted that the defendant may have acted on a desire to ensure that the money was protected and he expressed the view that even if that was the case, at best, the defendant's capacity to know that she ought not to do the act was, in his view, impaired and perhaps substantially so, but not deprived.

1. I cannot dismiss Dr Butler's opinion and, given the conflicting expert opinion, I am unable to find to the requisite degree that there was a deprivation of any of the capacities so that a finding of unsoundness of mind ought to be made.

1. In the circumstances I find that the defendant was not of unsound mind.  The defendant is fit for trial.  The proceedings accordingly will continue according to law.

1. I grant leave to the parties to use the medical reports before this Court in any further proceedings and clearly they will be of great significance in that regard.