Re SAM
[2003] QMHC 3
•6 June 2003
MENTAL HEALTH COURT
CITATION: | Re SAM [2003] QMHC 003 |
PARTIES: | REFERENCE BY THE DIRECTOR OF MENTAL HEALTH IN RESPECT OF SAM |
PROCEEDING NO: | No 299 of 2002 |
DELIVERED ON: | 6 June 2003 |
DELIVERED AT: | Brisbane |
HEARING DATES: | 25 March, 2 April 2003 |
JUDGE: | Wilson J |
ASSISTING PSYCHIATRISTS: | Dr D A Grant |
FINDINGS AND ORDERS: | 1. Finding that at the time of the alleged offences the defendant was of unsound mind as described in schedule 2 of the Mental Health Act 2000 (Qld); 2. Order that the defendant be detained as a forensic patient in The Park – High Security Program for involuntary treatment and care; 3. Approval of limited community treatment in the nature of escorted leave on the grounds of the hospital on the following conditions: (i) that he remain under the escort of at least three health service staff members nominated by the authorised psychiatrist for the duration of the limited community treatment; and (ii) that for the purposes of the limited community treatment he comply with the directions of nominated staff member/s for the duration of the limited community treatment |
CATCHWORDS: | CRIMINAL LAW – GENERAL MATTERS – CRIMINAL LIABILITY AND CAPACITY – DEFENCE MATTERS – INSANITY – GENERALLY – KNOWLEDGE AND UNDERSTANDING – where defendant charged with one count of entering a dwelling house with intent to commit an indictable offence with circumstances of aggravation and one count of murder – where defendant suffers from paranoid schizophrenia – where no evidence that defendant was intoxicated at the time of the alleged offences – where defendant responded to delusions in committing the alleged offences – whether at the time of the alleged offences the defendant was deprived by his illness of any of the capacities in s 27 Criminal Code 1899 (Qld) – where defendant washed blood off his hands, telephoned the police and was found lying in prone position immediately after the alleged offences – whether defendant was deprived of capacity to know that he ought not to do the act – whether defendant was deprived of capacity to control actions Criminal Code 1899 (Qld), s 27 Attorney-General (SA) v Brown [1960] AC 432, cited |
COUNSEL: | B Devereaux for the defendant |
SOLICITORS: | Legal Aid Queensland for the defendant |
WILSON J: This is a reference by the Director of Mental Health in relation to the mental condition of SAM [“the defendant”] who has been charged with the murder of [“the deceased”] on 22 January 2002, and with entering the deceased’s dwelling house with intent to commit an indictable offence with circumstances of aggravation on the same day.
The deceased, an elderly man, was at home watching television when the defendant entered his house and struck him over the head several times with a bag containing a chain and a rock and then strangled him with the chain.
The defendant suffers from paranoid schizophrenia. Despite his having a history of drug and alcohol abuse, there is no evidence that he was intoxicated by drugs or alcohol at the time of the homicide. Rather, responding to delusions that he had been abused by the deceased when he was a child, he killed the old man to regain the power over his own life which he felt had been taken from him and in retribution. There is absolutely no evidence that the defendant was abused by the deceased or anyone else when he was a child, and he has since acknowledged that his beliefs were false.
The Court must determine whether at the time of the alleged offences the defendant was deprived by his illness of any of the three capacities referred to in s 27 of the Criminal Code - namely, the capacity to understand what he was doing, the capacity to control his actions and the capacity to know that he ought not to do the act. If he was so deprived, then the Court should find him to have been of unsound mind at the time. If he was not deprived of any of those capacities, but was nevertheless in such a state of abnormality of mind (induced by that disease) as to substantially impair any of those capacities, then the Court should find him to have been of diminished responsibility within s 304A of the Criminal Code.
Family friendship with the deceased
The deceased was a widower who lived alone in the house at McDowell in which he and his late wife had resided for about 30 years until her death in 1999. They had no children. In about 1972 the defendant’s parents purchased a house two doors away from the deceased and his wife, and they have lived there ever since. The defendant was born on 20 October 1973. He and his two brothers grew up in their parents’ household where they enjoyed a normal, loving and happy childhood. Over the years a friendship developed between the deceased and his wife and the defendant’s parents. When the defendant and his brothers were toddlers, the deceased and his wife would watch over them sometimes, but they never had much to do with them. When the defendant’s mother started work, the deceased’s wife looked after the youngest brother of the defendant.
Drift into drug abuse
The defendant did well at school, and started a speech therapy course at university. He changed to an arts degree, but he did not finish it. According to his older brother, he had been quite withdrawn even as a child, and this became more noticeable when he was about 15. At university he drifted into a life of heroin and marihuana abuse with his girlfriend [“P”], whom he met in second year. They led an unstable lifestyle, frequently in search of accommodation and running up bills they could not afford to pay. They had a son in 1995. They undertook drug rehabilitation courses in both Canberra and Brisbane, but with little lasting benefit. Eventually the relationship ended in 1999, and subsequently P formed a relationship with someone else. After some initial conflict, they shared custody of their son pursuant to a Court order.
Between the ages of 26 and 27 the defendant abstained from heroin, but then he began using amphetamines intravenously on a fortnightly basis. He was also prone to drinking, smoking cannabis and using heroin occasionally.
Psychotic episode - March 2001
The defendant’s first admission to hospital for an acute psychotic illness was on 26 March 2001. He had been living alone in a flat in Chermside and had become increasingly withdrawn over the preceding six months. One evening he arrived at his parents’ home, walked in and started pushing his father in the chest accusing him of having done things to him in his childhood which had made him the way he was. After screaming time and again, “Tell me what you have done to me,” he walked off into the night. The next day his mother visited him in his flat, which she found trashed and in a complete mess. He ordered her out. The defendant’s behaviour became more irrational. When P went to collect their son from the defendant’s flat, she found the defendant in underpants and painted with war paint. She contacted the defendant’s parents who went to the flat. It had just been cleaned, and was wide open with the keys on the table. They returned to their own home, where they found the defendant shouting accusations that his parents and others had abused him as a child, thrown him down stairs and urinated on him. He had hold of a golf club which he swung at his father. The police were called, and the defendant was admitted to the Prince Charles Hospital Mental Health Unit where he remained until his discharge on 3 May 2001. He was in the high dependency unit for the first four weeks of his admission, where he was totally insightless, very irritable and refusing to take oral medication. After he was commenced on depot antipsychotic medication his mental state gradually improved. Before his discharge he acknowledged that his paranoid beliefs about his family and others were incorrect. He was regulated under the Mental Health Act 1974 until mid July 2001.
Delusions of child abuse
From time to time the defendant had told people about his ideas that he had been harmed or molested as a child. He said to a friend that he had a nagging feeling that something had happened to him as a child, but he could never tell his friend what it was. A drug counsellor in Canberra said he mentioned “some issues about being sexually abused as a child”.
The months before the homicide
Over the ensuing months the defendant became non-compliant with medication and psychiatric follow-up, and his mental state gradually deteriorated. He became increasingly socially withdrawn. His mother visited him two or three times a week and looked after his finances and his flat. Several times she found the flat in a state of squalor. He used marihuana and drank heavily. His behaviour became increasingly erratic, and he stopped living in his flat and began living in the garage. He refused to attend Christmas functions with his mother or his son, and refused to attend the family lunch on Christmas Day. He told P that his life “was fucked”. Two or three days later when his mother visited he seemed more rational, and apologised for not attending the lunch. His mother last saw him on 4 January 2002, before she left for holidays the next day. She returned about a week later and tried unsuccessfully to contact him over the next few days.
The hours before the homicide
On Tuesday 22 January 2002 the defendant woke up about midday after broken sleep punctuated by nightmares about someone violating him. He had a cup of tea, and paced up and down, feeling that someone had abused him. He caught a bus from Chermside to the Rode Road Shopping Centre and then walked into the Raven Street Reserve (where he had gone as a child), and spent about half an hour thinking about “the truth and [his] early childhood”. He had repeated visions of the deceased bossing him around and making him play silly games. There seemed to be a sexual connotation which made him feel used and powerless. He began pacing up and down, until he became enraged. He picked up a chain from a path about 500 metres from where he had been sitting, and thinking that he was “going to fucking get [the deceased] for doing that to [him]”, he started walking towards the deceased’s house. After walking another 150 metres, he thought he might need something to smash a window, and so he picked up a rock and put it in the bag he was carrying. He wanted “to choke” the deceased “to get that power back”. At that stage he was not thinking of killing the deceased, but just of “whipping” him with the chain.
The homicide
From the time he picked up the rock it took the defendant about fifteen minutes to walk to the deceased’s house. He was becoming more and more angry, determined “to get him”. He entered the house through a sliding screen door. As he stood at the door, he saw the deceased sitting in a chair in the TV area of the house, about two metres away. He swung the bag containing the chain and the rock at the deceased several times deliberately hitting him on the head “because he [was] sick in the head and he made me sick in the head”. At that stage the defendant was trying to knock the deceased out, but when he started bleeding, he took the chain out of the bag and decided to kill him. He wrapped it round his neck and squeezed it for about a minute. The deceased’s body shook for about thirty seconds and then was still.
Immediately after the homicide
The defendant washed the blood off his hands in the kitchen sink, and then contacted police by dialling 000. He asked the operator to have someone come to the house because there was a dead man there. He said he had hit him over the head and strangled him. He then lay on the floor, flat on his stomach with his arms and legs stretched out, and waited for the police to arrive. Later he gave police the account set out in the preceding paragraphs, telling them that he had been “consumed with rage for this person who had made [him] feel so small”, and that he had “just wanted to free [himself] from all this shit”.
Arthur Gorrie Correctional Centre
The defendant was charged with murder and with entering a dwelling house with intent to commit an indictable offence with circumstances of aggravation. He was detained on remand in the Arthur Gorrie Correctional Centre until April 2002. According to his parents, who visited him regularly, he was generally hostile, irritable and uncommunicative. He ate very little and chainsmoked. His self care was poor. He thought his thoughts were being broadcast and that television and radio were talking to him. The messages from television and radio gave him the idea that he was very special. He thought he could see colours, which he believed to be the auras of people. He thought other people could hear him think. He thought he was on a “mission for some martyrdom by sacrificing [his] intellect”.
John Oxley Memorial Hospital
Despite his parents’ attempts to arrange a psychiatric assessment for him, he did not come to the attention of the Prison Mental Health Service until 19 April 2002, when he jumped from a balcony railing in the belief that he could fly, fracturing his right heal. He was then transferred to the John Oxley Memorial Hospital. After a short period in the Ipswich General Hospital for treatment of his foot, he was returned to John Oxley Memorial Hospital on 21 April 2002. He has remained an inpatient there without any leave (either escorted or unescorted).
The defendant has responded well to anti-psychotic medication. Initially non-compliant with oral medication, he was treated with injectable neuroleptics. Subsequently he has been treated with Olanzapine (which was stopped due to side effects) and more recently Clozapine. His eating improved and he gained some weight. His sleeping patterns improved. At least by September 2002 (when he was examined by Dr Peter Fama), he had acknowledged that his belief that the deceased had abused him, which he had recounted to the police, was false. By the time of the hearing before this Court in late March 2003 there had been no episodes of violence or aggression. He was compliant with treatment. He had attended drug and alcohol awareness groups and occupational therapy. He had resumed his university studies with the assistance of his parents who brought him study materials.
Dr Edward Heffernan
Dr Heffernan was the defendant’s treating psychiatrist at the John Oxley Memorial Hospital from April 2002 until January 2003. Based on his interviews with the defendant over that period and his study of the police brief, Dr Heffernan considered that at the time of the homicide the defendant was experiencing psychotic thinking and a delusional mood. Psychotic thinking is thinking which is out of touch with reality. A delusional mood is one of primary delusions and is characterised by an uncanny sense that something is going on around one but one does not know exactly what it is. Dr Heffernan said in oral evidence -
“I believe from my subsequent interviews with [the defendant] and also the material that’s available that he was psychotic at the time, that he was experiencing persecutory delusions. He believed that he’d been somehow interfered with or trouble [sic] as a child by this person. I believe that he was also experiencing a delusional mood in that he felt that something strange had happened but he couldn’t understand what that was. I believe that his thought processes at that stage were such that he felt nothing but a confusion and rage.”
Later he described the delusional mood and the psychotic thinking as running in parallel. He went on -
“You know, there’s the delusional mood that something is going on, and then one attaches specific significance to some kind of thought, and in this case it seemed to be the thought that he was abused as a child.”
Dr Heffernan considered that the defendant was deprived of the capacity to know that he ought not do the act - in other words, that he was deprived of the capacity to know the moral wrongness of what he was doing. He agreed with the proposition that even if there was some understanding in the back of his mind of the unlawfulness of his conduct, he was deprived of the capacity to reason about the moral rightness or wrongfulness of his actions. (See Stapleton v The Queen (1952) 86 CLR 358 at 375). Dr Heffernan described the defendant’s subsequent conduct in making the 000 call and washing his hands as “rather odd behaviour” that was consistent with the disorganised process affecting his mind at the time. It was the result of the extremely confronting effect of the homicide and its immediate sequelae. Although acknowledging that this behaviour might be an indicator of some remorse, he maintained that at the time of the homicide the defendant was deprived of the capacity to know the moral wrongfulness of what he was doing.
In oral examination Dr Heffernan was asked for his opinion upon whether at the time of the homicide the defendant had the capacity to control his actions. He replied that he believed he had physical control of the movement of his limbs, etc, but agreed that his ability to make a free choice about his physical actions was impaired. He was quite definite that the homicide would not have occurred had the defendant not been psychotic, but because there was some planning involved in fetching the chain and the rock he did not think there was a complete deprivation of volitional control. He was asked by Dr Grant -
“But if those decisions about getting rocks, chains, et cetera, were driven themselves by delusional beliefs, do you still see that that means that he had control over his behaviour in the real sense?”
to which he replied –
“I think that it could be interpreted either way and, you know, there would potentially be an argument to say that his overall control was deprived, but I gave you my reasoning for the ...”.
Dr Peter Fama
Dr Fama examined the defendant on 23 September 2002. In his opinion the defendant was overwhelmed by his desire for retributive justice and for recovery in some mysterious way of a spiritual or psychic power that had been taken away from him by the deceased. He was preoccupied by those thoughts, and had “spent the whole morning in pursuit of this one terrible act …”.
Dr Fama agreed that the defendant was deprived of the capacity to know that he ought not do the act. The thoughts that were preoccupying his mind “drove out … any rational thoughts about [the] rightness or wrongness of what he was doing. In fact, he was convinced that what he was doing was appropriate and necessary for him as an individual to protect himself.” Dr Fama had no opinion upon whether, at the time of the homicide, the defendant knew that his conduct was legally wrong. He said -
“But a mere intellectual knowledge of what the law is, is not really relevant I believe when a person is psychotic and his personal moral judgment is thereby suspended.
[…]
He saw himself - and quite rightly I believe - as being preoccupied with his personal mission of vengeance and justice. Certainly afterwards he knew it was against the law. I think that at the time the likely explanation is that the law was unimportant to him because he was psychotic. The law did not matter at all.”
Like Dr Heffernan, Dr Fama considered that the defendant’s subsequent behaviour in calling 000 and washing his hands was indicative of his being brought back to reality (to some extent) by the seriousness of what he had done, rather than in any way indicative that at the time of the homicide he knew that what he was doing was morally wrong.
In his written report Dr Fama described the defendant as being “driven hard by his beliefs, and unswerving in his purpose, so that he would … have had a diminished capacity to control his actions, and perhaps even a deprivation of that control. However … the demonstrable deprivation ... has been that of [his] capacity to know that he ought not to do the acts.” In oral evidence Dr Fama said that in light of his description of the defendant’s mental state at the time he considered that there probably was a deprivation of the capacity of volitional control, “but it’s a marginal sort of a thing.”
Dr William Kingswell
Dr Kingswell examined the defendant on 23 January 2003. The defendant was able to give him a history of psychotic experiences, including delusional mood, grand and paranoid delusions and bizarre concerns of thought broadcasting in the period leading up to 22 January 2002. After his arrest and imprisonment he had remained profoundly unwell until he jumped from the balcony believing he could fly.
Dr Kingswell described the attack on the deceased as arising out of a profound psychotic experience. He agreed that the defendant was deprived of the capacity to reason as to the moral rightness or wrongfulness of his conduct. He could no more than guess whether at the time of the homicide the defendant was aware of the unlawfulness of what he was doing. Dr Kingswell maintained, however, that even if the defendant was so aware, he was absolutely driven by his psychotic experience. The call to 000 and the posture the defendant had assumed when the police arrived were indicative of some appreciation (after the homicide) of the unlawfulness of what he had done, but not of remorse or moral awareness of wrongdoing.
Dr Kingswell was asked about the defendant’s capacity to control his actions. He replied -
“ ... from the clinical perspective there’s no doubt that he could control his physical acts to the extent that he was able to collect a rock, take it to the deceased’s house and reasonably purposefully go about this act. But could he have controlled himself to the extent of not involving himself in any aspect of that whole progression of events? No, he could not because he was so unwell. I mean, he was profoundly psychotic with the symptoms that we’ve described and to his muddled mind he needed to pursue this. He couldn’t sit back from the whole thing, and if he was able to sit back and reason about whether he was having his thoughts broadcast to the world or whether he had been abused in childhood, he wouldn’t have the illness that we’ve said that he has. So he could not - he could not think rationally about this sequence of events. And so in that respect I’d say he was deprived of the capacity to [sic] control.”
According to Dr Kingswell, the defendant could not understand that he was under the compulsion of a delusional mood: schizophrenia being a disorder of the coordination of thought and mood and perception, the defendant could not stand aside from his own brain and reflect on its abnormal workings. His conduct was the product solely of his severe mental illness; he did not want to stop himself because he was overwhelmed by his delusional state.
Unsound mind
The defendant’s schizophrenia was clearly a mental disease within s 27 of the Criminal Code.
I have no difficulty in finding that the defendant was deprived of the capacity to know that he ought not do the act. I accept the evidence of Drs Heffernan, Fama and Kingswell that he was quite incapable of reasoning as to the moral rightness or wrongfulness of what he was doing. See R v Porter (1933) 55 CLR 182 at 189 -190 and Stapleton v The Queen (1952) 86 CLR 358. His subsequent conduct in washing his hands, calling 000 and lying waiting for the police was probably in response to some realisation of the enormity of what he had done; it is not an indicator of any capacity for moral reasoning at the time of the homicide.
Two of the capacities referred to in s 27 – the capacity to understand what one was doing and the capacity to know that one ought not do the act – are generally regarded as corresponding with the two capacities referred to in the M’Naghten Rules (see Re M’Naghten’s Case (1843) 10 Cl & Fin 200; 8 ER 718), namely the capacity to know the nature and quality of the act and the capacity to know that what one was doing was wrong. They are sometimes referred to as “the cognitive capacities”. There is a third capacity referred to in s 27 - the capacity to control one’s actions, which is sometimes referred to as “the volitional capacity”. The action of a person deprived by mental disease of the capacity to control his or her actions is akin to an action which occurs, from some cause other than mental disease, independently of the exercise of the person’s will: see Sir Samuel Griffith’s Notes to the Draft Code in Queensland Parliamentary Papers, C.A. 89-1897 at 14, and R v Falconer (1990) 171 CLR 30 at 47.
In jurisdictions which do not have a provision in terms of s 27 and where the M’Naghten Rules apply, incapacity to control one’s actions resulting from mental disease has sometimes been found to have caused or to be evidence of a deprivation of one of the cognitive capacities: Sodeman v The King (1936) 55 CLR 192 at 203 - 204, 208, 214 - 215; Attorney-General (SA) v Brown [1960] AC 432. In R v Falconer (1990) 171 CLR 30 at 48 - 49 Mason CJ, Brennan and McHugh JJ said -
“It seems incongruous for the common law to hold that an accused who is deprived by mental disease of his capacity to control his actions cannot be acquitted outright on the ground that his actions were involuntary, nor is he entitled to a qualified acquittal on the grounds of insanity unless he proves not only that he was deprived of his capacity to control his actions but also that he did not know the nature and quality of his act or that it was wrong. Perhaps the incongruity does not often arise in practice for, as King CJ observes [in R v Radford (1985) 42 SASR 266 at 275]:
‘Although possible in theory, it is from a practical point of view extremely difficult to conceive of a state of things in which a person acting automatically and without any exercise of the will would nevertheless know what he was doing and that it was wrong.’
(Cf. Sodeman v The King (1936) 55 CLR 192 at 205; Attorney-General (SA) v Brown [1960] AC 432)”.
However, I understand the advice of the assisting psychiatrists to be that there can be cases of psychotic disorder, mania or other mental disease where the person affected is deprived of neither of the cognitive capacities, but is nevertheless deprived of the capacity of freely choosing whether or not to do an act. So, too, can there be cases where a person is deprived of one or both of the cognitive capacities as well as the capacity of volitional control. That this may be so has been recognised in various jurisdictions. See, for example, the Criminal Code Act 1995 (Cth) s 7.3, the Irish cases of People (AG) v Hayes, Central Criminal Court (Ireland), 30 November 1967, Henchy J, unreported; and Doyle v Wicklow County Council [1974] IR 55; and the recent Irish Bill Criminal Law (Insanity) Bill 2002, where the M’Naghten Rules were extended to include volitional control.
The meaning of the capacity of control in s 27 of the Criminal Code was considered by Dowsett J in Re W, Mental Health Tribunal, 14 October 1997, unreported, and Re B, Mental Health Tribunal, 3 November 1997, unreported. In Re W his Honour said -
“I come now to the capacity to control actions. The words used in s 27 clearly refer to a lost capacity to control physical acts. No question of moral judgment is involved. Having regard to Griffith’s notes to the draft Code, one may draw a parallel between this provision and s 23 which provides that a person is not criminally responsible for an act or omission which occurs independently of the exercise of his will. This has been taken as referring to an involuntary act. See, for example, Kaporonovski v The Queen (1973) 133 CLR 209 per McTiernan ACJ and Menzies J at p 215 and per Gibbs J (Stephen J concurring) at pp 226 - 7.”
And in Re B he said -
“I have concluded that what is contemplated by that provision is a condition akin to an action which occurs independently of the will of the person in question in the way contemplated by section 23 of the Code. Where the act is accompanied by evidence of premeditation and planning it is, in my view, very difficult to conclude that the act was as a result of an inability to control one’s actions. Premeditation and preparation indicate to the contrary.
Where there is evidence of premeditation and preparation, therefore, a defence under section 27 of the Criminal Code must generally be sought in deprivation of one of the other two capacities therein prescribed.”
I respectfully agree that the capacity of control in s 27 is the capacity to control physical acts. The section is concerned with the criminal responsibility of a person deprived by mental illness of the capacity to control his or her physical acts. It is concerned with the loss of volitional control rather than motor control over physical acts. However, I do not accept that evidence of premeditation and preparation is necessarily or even generally indicative of the presence of some capacity of control. Certainly whether there has been a deprivation of capacity must be determined as at the very moment of the homicide, rather than at some earlier time. However insofar as conduct leading up to that moment can legitimately be considered as evidence from which the inference of a deprivation of capacity may be drawn, it is necessary to examine that conduct to see whether it was itself the product of mental illness.
The premeditation and preparation in which the present defendant engaged (fetching the chain and the rock and taking them to the deceased’s home) were themselves driven by his delusional mood and psychotic thinking. As such I do not accept that they are indicative of the existence of any capacity of volitional control.
I am satisfied on the balance of probabilities that the defendant was deprived of the capacity to control his actions.
I find that at the time of the alleged offences the defendant was of unsound mind as described in schedule 2 of the Mental Health Act 2000 (Qld).
Having regard to the seriousness of the offences, his treatment needs and the protection of the community, I order that he be detained as a forensic patient in The Park - High Security Program for involuntary treatment and care.
I approve limited community treatment in the nature of escorted leave on the grounds of the hospital on the following conditions:
(i)that he remain under the escort of at least three health service staff members nominated by the authorised psychiatrist for the duration of the limited community treatment;
(ii)that for the purposes of the limited community treatment he comply with the directions of nominated staff member/s for the duration of the limited community treatment.
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