Re RWC
[2002] QMHC 15
•23 December 2002
MENTAL HEALTH COURT
CITATION: | Re RWC [2002] QMHC 015 |
PARTIES: | REFERENCE BY THE DIRECTOR OF PUBLIC PROSECUTIONS IN RESPECT OF RWC |
PROCEEDING NO: | 0001/2002 |
DELIVERED ON: | 23 December 2002 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 5, 6 September 2002 |
JUDGE: | Wilson J |
ASSISTING PSYCHIATRISTS: | Dr J M Lawrence Dr J F Wood |
FINDINGS AND ORDERS: | 1. There is reasonable doubt the defendant committed the offence of murder within the meaning of s 268(1) Mental Health Act 2000 (Qld); 2. That doubt does not exist only as a consequence of his mental condition within the meaning of s 268(2) Mental Health Act 2000 (Qld); 3. The defendant is fit for trial; and 4. That the proceedings against the defendant for murder be continued according to law. |
CATCHWORDS: | MENTAL HEALTH – DECLARATION OR FINDING OF MENTAL ILLNESS OR INCAPACITY – where defendant charged with murder of police officer – where defendant claims to have no memory of the offence – where prosecution challenges the genuineness of his memory loss – where defendant concedes prosecution has strong circumstantial evidence that he fired the fatal shot – where defendant does not concede there is strong circumstantial case that he committed the offence – where defendant had been prescribed and had taken at different times leading up to the offence, up to 10 different pain killing, tranquillising and anti-depressant medications, sometimes in excess of the prescribed levels – where memory loss could have been caused by drug induced delirium, underlying cognitive defects, or could have been feigned – interpretation of s 268 Mental Health Act 2000 (Qld) – whether “offence” in s 268 refers only to the relevant physical act(s) and does not include the element of intent – where finding the defendant had the requisite intent involves the drawing of an inference from proved facts – whether Mental Health Court should draw that inference or whether that question should be determined by a jury – whether Mental Health Court is satisfied there is reasonable doubt the defendant formed the requisite intent – whether the doubt exists as a consequence of his mental condition within the meaning of s 268(2) Mental Health Act 2000 (Qld) – interpretation of meaning of “reasonable doubt” Criminal Code 1899 (Qld), s 23, s 27, s 304A Re L, Mental Health Tribunal, 23 February 2001, unreported, considered |
COUNSEL: | D Ross QC and D O’Gorman for the defendant |
SOLICITORS: | Howden Saggers for the defendant |
WILSON J: RWC (“the defendant”) has been charged with murder of a police officer (“the deceased”) on 21 July 2000. The matter of his mental condition relating to the offence was referred to the Mental Health Tribunal by the Director of Public Prosecutions on 21 July 2001. When the reference came on for hearing by the Mental Health Court on 5 and 6 September 2002, the issue for immediate consideration was whether the Court was prevented from making a decision on the issues of unsoundness of mind and diminished responsibility by force of s 268 of the Mental Health Act 2000 (Qld).
Sections 267 and 268 of the Act provide –
“267 Mental Health Court to decide unsoundness of mind and diminished responsibility
(1)On the hearing of the reference, the Mental Health Court must –
(a) decide whether the person the subject of the reference was of unsound mind when the alleged offence was committed; and
(b) if the person is alleged to have committed the offence of murder and the court decides the person was not of unsound mind when the alleged offence was committed - decide whether the person was of diminished responsibility when the alleged offence was committed.
(2) This section has effect subject to sections 268 and 269.
268 Reasonable doubt person committed offence
(1)The Mental Health Court must not make a decision under section 267(1)(a) or (b) if the court is satisfied there is reasonable doubt the person committed the alleged offence (the ‘disputed offence’).
(2)However, the court may make a decision under section 267(1)(a) or (b) if the doubt the person committed the disputed offence exists only as a consequence of the person’s mental condition.
(3)If elements of the disputed offence are elements of another offence (the ‘alternative offence’), subsection (1) does not prevent the court from making a decision under section 267(1)(a) for the alternative offence.
Example for application of subsection (3) -
If the disputed offence is attempted murder, the court may make a decision in relation to the alternative offence of grievous bodily harm if the alternative offence is not disputed.
(4)If the court decides the person was of unsound mind when the alternative offence was committed proceedings against the person for the disputed offence are discontinued.”
At the commencement of the hearing, I received submissions from counsel on the meaning and application of s 268. I concluded that this Court was obliged to undertake an examination of such evidence as was put before it, whether it be in documentary form or oral form, and to form its own view as to whether there was reasonable doubt that the defendant committed the offence. I interpreted reasonable doubt as one not based on speculation or otherwise fanciful.
The defendant was born on 12 April 1942. He served in the RAAF for about 20 years attaining the rank of Flight Sergeant, and after his discharge worked as a bus driver in Rockhampton for some years. He was unemployed for about five years before the alleged offence. In July 2000 he and his wife were living on a property outside Rockhampton. The house was situated on 56 acres of land, and set back about 168 metres from the road. Their neighbours on one side were the [neighbours’ surname] family. Their houses were about 50 metres apart. On the other side were the [other neighbours’ surname]. The defendant’s wife worked as a nurse at the Rockhampton Hospital.
The case against the defendant is a circumstantial one. His counsel conceded that the circumstantial evidence that he fired the fatal shot is strong. In a letter dated 8 May 2002 addressed to the Court his solicitors said (inter alia) -
“If [the defendant] did fire the shot:
(a) Was the firing accidental?
(b) Was it aimed at [the deceased]?
(c) Was there any intention that the bullet strike [the deceased]?
(d) Did [the defendant] have the capacity to form the relevant intent?
(e) Is there diminished responsibility?
It is submitted that 3(e) is the only matter relevant to the tribunal investigation.”
On 20 July 2000 an old friend from the defendant’s RAAF days (“the defendant’s friend”) was staying with the defendant and his wife. The defendant and the defendant’s friend went to two movies in Rockhampton. They had a few drinks on the way home, arriving back at about 7:15 pm. The defendant and his wife and the defendant’s friend had dinner outside the house. They consumed some alcohol. An argument developed between them, in the course of which the defendant accused the defendant’s friend of sexual impropriety with the defendant’s wife. There was a struggle. Then the defendant went inside and returned holding a shotgun. He fired a shot which did not strike the defendant’s friend, who ran from the property, climbing through the fence into the neighbour’s property. He heard two more shots. Hearing a shot, the neighbour went outside and saw the defendant standing with a firearm on the eastern end of his property with the gun facing towards the sky. He returned to the house, met the defendant’s friend, and after some conversation with him, rang 000 at about 9:30 pm.
Shortly after that Sergeant JH of the Rockhampton Police telephoned the defendant’s house and spoke with him. He asked the defendant about reports of shots being fired near his home. The defendant denied that there had been any disturbance. He said he may have fired at some feral animals, but that he had not fired any shots that night. When JH questioned him further about shots being fired that night in the vicinity of his home, he responded: “Who told you that? ... Why don’t you go and do your job. Issue tickets and raise some revenue, catch criminals and leave me alone. … I am going to bed.” According to JH the defendant spoke calmly and clearly; his voice was slightly slurred but it was coherent and easily understandable.
JH tried to ring the defendant’s home a number of times until about 11:00 pm, but the calls went through to a message bank .
Meanwhile, a number of police officers gathered in the vicinity of the defendant’s residence shortly before midnight. They included Inspector JL and the deceased, who was a dog handler and who had his dog with him. They took up various positions. The deceased, followed by JL, walked around a large shed on the neighbour’s property close to the fence line of the defendant’s property, with the deceased leading by about 10 metres. As the deceased passed between a white painted concrete water tank and the fence line, JL heard a shot and saw the deceased grasp his upper right thigh and fall out of sight behind the water tank.
JH had gone to the neighbour’s property where he was speaking to the defendant’s friend when he heard the shot ring out. According to JH it sounded like a shot from a rifle that had been fired close to his location.
The deceased had been shot in the femoral artery, and he died from massive blood loss.
At about 12:45 am JH and other police left the neighbour’s residence and took cover in the yard nearby. He called out to the defendant by name several times, but received no reply.
At about 2:35 am JH spoke with the defendant by telephone. The defendant was crying, sobbing and speaking very quickly. Several times the telephone was disconnected but JH rang back and the defendant answered. JH endeavoured to negotiate with him. The defendant said things like: “It’s raining, I cannot see.” It was not raining. He went on: “The enemy is out there. ... They’re coming to get me. I have done the wrong thing. I am a coward. I have shot a friendly. ... I have been in a firefight.” He asked JH if he could call him “Captain”. After a while he calmed down, and his speech became slower and more precise. Eventually he was persuaded to come out of the house and at about 4:42 am he was taken into custody.
Police located a .303 rifle in the defendant’s house. They also found a cartridge case on the defendant’s side of the fence in the vicinity of where the shot was heard to come from. From the markings on the cartridge case they were able to say it had come from the .303 rifle found in the defendant’s house. They found diaries kept by the defendant over many years with entries revealing a long standing antipathy to police. They found a large number of prescription drugs in the defendant’s house.
Dr Charlotte Lip examined the defendant at the watchhouse at 6:30 am. She concluded he was confused.
Dr Clive Kam examined the defendant in the emergency department of the Rockhampton Hospital at 7:20 am. He noted that the defendant was agitated, confused and suffering from disorganised thought. The defendant claimed to have suffered from auditory and visual hallucinations (he saw a helicopter fly through the window). He told Dr Kam that he could not remember what had happened the night before because he had been sleeping. He also said that he was on Efexor. Dr Kam found the defendant to be a poor communicator; his speech was slurred, and his affect was blunt and non-reactive. Dr Kam was unable to generate a rapport with the defendant and therefore could not come to a conclusion about the defendant’s insight.
Dr Kam contacted Dr Michelle Harris, a psychiatric registrar at the Rockhampton Hospital, at 7:30 am and requested that she review the defendant. Dr Harris interviewed him at 8:00 am in the presence of a number of police officers and ward staff. At the end of the interview she concluded that the defendant was in an acute confusional state which was most likely as a consequence of psychogenic shock (shock relating to a mental state experienced after extreme psychological stress and sleep deprivation). She recommended that another consultant psychiatrist review him after he had some sleep.
The defendant’s blood alcohol level was tested at 8:30 am. This revealed that his serum alcohol level was <3 (less than 3 millimols per litre). Assuming that all the alcohol was consumed before the homicide, and given the degradation rate for alcohol in the human body, Dr Yellowlees calculated that the defendant could have had a blood alcohol level of about 0.08 (80 mg per 100ml) at the time of the homicide. Of course, rates of metabolism vary from person to person, and the level could have been higher.
A blood sample was taken from the defendant at 5:50 pm – about 18 hours after the homicide occurred. Analysis of the blood sample revealed the presence of certain drugs: alcohol, Diazepam (Valium) and its metabolite Nordiazepam, Venlafaxine (an anti-depressant drug present in Efexor and Efexor XR), Propoxyphene (a narcotic analgesic) and its metabolite Norpropoxyphene, and Amitriptyline (a tricyclic anti-depressant) and its metabolite Nortriptyline. Assuming that none of these drugs had been used in the 18 hours between the homicide and the blood sample being taken, and allowing for the half life of the individual drugs, then the levels of these drugs detected were all within therapeutic range, with the exception of Venlafaxine.
Venlafaxine is an anti-depressant drug present in Efexor and Efexor XR. The latter is a sustained release (long acting) preparation. Both forms of Efexor were found in the defendant’s house, but it is unclear which he took to result in the levels of Venlafaxine found in his blood. The normal half-life of Venlafaxine is 3 to 7 hours. Assuming all the Venlafaxine had been consumed by the time of the homicide and assuming that the defendant had ingested plain Efexor, the level of Venlafaxine at the time of the homicide may have been 6 to 64 times higher than when the sample was taken – far in excess of the therapeutic range. Even if he had taken the sustained release preparation, the level of Venlafaxine would still have been very high at the time of the homicide – in excess of the therapeutic level.
There is evidence that the defendant had been taking up to about 10 different pain killing, tranquillising and anti-depressant medications. On the day of the homicide he took between 15 and 18 Valium (Diazepam) tablets of 5 mg each, as well as Efexor and pain killers. There is evidence to suggest chronic abuse of Benzodiazepines (such as Valium) for years. Their half-life is between 20 and 48 hours. Taking account of his body weight and likely rapid metabolism of the drugs, and assuming the drugs were consumed before the homicide, Dr Yellowlees calculated that at the time of the homicide he would have had 60 or 70 mg of Benzodiazepines in his body, which was approximately what he told the doctor he had taken orally. That would have been quite an excessive level.
At least since the time he was examined by Dr Kam (7:20 am on 21 July 2000), the defendant has claimed not to have any recollection of the incident. The prosecution challenges the genuineness of his memory loss. On the evidence of Drs Grant, Yellowlees and Fama he was probably suffering from a drug induced delirium at the time of the shooting, which may account for his memory loss.[1] His memory loss may be attributable to underlying cognitive deficits. And, of course, it may be feigned.
[1]There is no evidence of his behaviour between the shooting and 2:35 am when the police re- established telephone contact, and no evidence of any physical contact between him and the police until 4:42 am when he was taken into custody. In the circumstances this Court cannot be satisfied which drugs were consumed when and in what quantities. These may be circumstances which enliven s 269 such that it would be unsafe for this Court to make a determination under s 267(1)(a) or (b). However, that issue has not been fully ventilated before me, and I do not reach a final conclusion on it.
Subsections (1) and (2) of s 268 are both concerned with cases where criminal liability is contentious. It may be contentious because of factual disputes concerning guilt other than unsoundness of mind or diminished responsibility, or it may be so because an offence was committed in circumstances excluding criminal responsibility. Subsection (2) is concerned with a dispute as to criminal liability which is itself a product of the defendant’s mental condition. In Re L, Mental Health Tribunal, 23 February 2001, unreported, the defendant was charged with the murder of his 7 year old son, as well as the torture of his wife, the torture of his son and two counts of assault occasioning bodily harm to the same child. The case against him was overwhelming, but he denied the commission of the offences. His challenge to the facts was the product of insane delusions and a psychotic perception of events. It was not a dispute which could be taken seriously. The reference came before the Mental Health Tribunal pursuant to the Mental Health Act 1974 (Qld). By s 33(2) of that Act, the Tribunal was enjoined from making a determination in relation to unsoundness of mind if it were “of the opinion that the facts of or connected with the alleged offence or of the involvement of the person in question [were] so in dispute that it would be unsafe to make a determination”. The Tribunal held that there was not a sufficient prospect of his being acquitted on any charge apart from a defence afforded by s 27 or s 304A of the Criminal Code to make it unsafe to proceed with the reference. Such a case may well fall within s 268(2) of the Mental Health Act 2000. So, too, would a case where the defendant was charged with a crime of specific intent about which there was reasonable doubt, and there was evidence that he was psychotic at the time of the alleged offence, that he was psychotic when interviewed by the police and he remained psychotic for many months thereafter: Re JHW [2002] QMHC 009, No 0158 of 2002, 23 December 2002.
The defendant concedes that there is strong circumstantial evidence that he fired the fatal shot. He does not concede that he committed the alleged offence, or that there is a strong circumstantial case that he did so. The offence charged is murder, an element of which is intent to kill or to do grievous bodily harm.
I do not accept the submission of Mr Ross QC for the defendant that “offence” in s 268 means only the relevant physical act or acts, because, according to the submission, to include the mental element would necessarily rob this Court of power to investigate a defendant’s mental condition. Even where a defendant has committed the physical acts which are elements of an offence and has done so with the requisite intent, he is entitled to be found not guilty if his mental condition was such that he was suffering from unsoundness of mind or, in the case of a charge of murder, to be found guilty only of manslaughter where his mental condition was such that he was suffering from diminished responsibility. There can be intent in the context of unsoundness of mind, although the usual legal consequences of that intent are altered in consequence of the defendant’s mental condition.
In a criminal trial the onus of proof rests on the Crown and no inference adverse to the defendant is to be drawn from his election not to give evidence. In R v Sarracino [1988] 2 Qd R 707 at 710, Connolly J, with whom Ryan and Shepherdson JJ agreed, said that s 33(2) of the Mental Health Act 1974 should not be interpreted in a way that required a defendant to give evidence before the Mental Health Tribunal. In my respectful opinion a similar observation should be made about s 268 of the Mental Health Act 2000. This is so even though a statement by the defendant (whether oral or in writing and whether under oath or otherwise) on the hearing of the reference is inadmissible in any civil or criminal proceeding against him[2] and the decision of the Mental Health Court on his mental condition is inadmissible at trial.[3]
[2]s 316 Mental Health Act 2000 (Qld).
[3]s 317 Mental Health Act 2000 (Qld).
Finding that the defendant had the requisite intent would involve the drawing of an inference to that effect from the proved facts. The drawing of such an inference is properly within the province of a jury. I do not accept that the Legislature intended that this Court should assume a similar function in a circumstantial case where intent is put in issue by the defendant. There is doubt that the present defendant formed that intent, and it is a doubt that is not fanciful or based on mere speculation. Nor is it a doubt that exists only as a consequence of his mental condition within the meaning of s 268(2).
It is not necessary for me to consider whether there is reasonable doubt that he is not criminally responsible for an act or omission which occurred independently of the exercise of his will or for an event which occurred by accident (s 23 Criminal Code).
I am satisfied that there is reasonable doubt that the defendant committed the alleged offence of murder. That doubt does not exist only as a consequence of his mental condition. Accordingly this Court must not make a decision whether he was of unsound mind or of diminished responsibility when the alleged offence was committed.
I am satisfied that the defendant is fit for trial.
I order that proceedings against him for the offence be continued according to law.
At the hearing much time was taken up with the cross-examination of psychiatrists exploring the possible effects on the defendant’s mental condition of the various drugs he had been prescribed and taken at different times, sometimes in excess of prescribed levels. At the conclusion of the hearing I indicated that, upon receipt of the parties’ written submissions, I would confer with the Assisting Psychiatrists and make available to the parties a summary of any advice they gave me. Ultimately I have concluded that it is not necessary for me to seek their advice on any clinical issues at this stage. Accordingly I make this ruling and publish these reasons without having consulted them.
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