Re SSW

[2004] QMHC 23

MENTAL  HEALTH COURT

CITATION:

Re SSW [2004] QMHC 023

PARTIES:

REFERENCE BY THE DIRECTOR OF MENTAL HEALTH IN RESPECT OF SSW

PROCEEDING NO:

0150 of 2003

DELIVERED ON:

16 September 2004

DELIVERED AT:

Brisbane

HEARING DATE:

14 September 2004

JUDGE:

ASSISTING PSYCHIATRISTS:

Wilson J

Dr J M Lawrence
Dr J F Wood

ORDER:

     1)      With respect to the robbery charge, that there was reasonable doubt he committed the offence, the doubt not arising solely in consequence of his mental condition;

     2)      With respect to the charges of unlawful use of a motor vehicle, driving under the influence of liquor and unlicensed driving and failing to stop, that the defendant was not of unsound mind;

     3)      That the defendant is fit for trial;

     4)      That the proceedings be continued according to law.

CATCHWORDS:

MENTAL HEALTH – DECLARATION OR FINDING OF MENTAL ILLNESS OR INCAPACITY – where the defendant is charged with robbery with violence, unlawful use of a motor vehicle, driving under the influence of liquor, unlicensed driving and failing to stop – where the defendant has an established schizophrenic illness – where his condition had been untreated for about eight months before the alleged offences – where there is conflicting expert psychiatric evidence as to whether the defendant’s mental state was affected by alcohol intoxication or by his mental illness

Criminal Code 1899 (Qld), s 27

COUNSEL:

B Devereaux for the defendant
D Grealey for the Director of Mental Health
M Copley 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. WILSON J:  SSW has been charged with robbery with violence, unlawful use of a motor vehicle, driving under the influence of liquor, unlicensed driving and failing to stop on 17 May 2003. 

1. The matter of his mental condition in relation to the alleged offences was referred to this Court by the Director of Mental Health.  The reference was heard on 14 September 2004. 

1. At the conclusion of the hearing I gave my decision.  With respect to the robbery charge, I was satisfied there was reasonable doubt he had committed the offence, the doubt not arising solely in consequence of his mental condition.  And with respect to the other charges, I was satisfied that he was not of unsound mind.  I found him fit for trial and ordered that the proceedings be continued according to law.  The following are my reasons for that decision. 

1. The defendant was born on 14 February 1975.  He has an established schizophrenic illness.  It had been untreated for about eight months before the alleged offences.  There had been a deterioration in his mental state in the weeks leading up to the alleged offences according to his family. 

1. The incident occurred at about 12.30 a.m.  The defendant had called a taxi which collected him from home.  He instructed the driver to take him into town, i.e. into Toowoomba.  According to the taxi driver, the defendant appeared quite intoxicated.  The driver said he drove towards a local hotel, when the defendant asked him to turn into a side road.  Once he was in this road, the defendant reached down, placed the automatic transmission into neutral and caused the vehicle to come to a stop.  The defendant then got out, went around to the driver's door, which he opened, and grabbed the driver by the right arm, saying, "You're finished here or I'll kill you."  The driver got away and the defendant chased him around the vehicle several times yelling that he was going to kill him.  The defendant then got in the vehicle and, against the protestations of the driver, drove away towards Toowoomba.  He was intercepted by police in Toowoomba.  He refused to get out of the vehicle and eventually police had to use capsicum spray. 

1. At 2.35 a.m. the defendant was breathalysed.  His blood alcohol concentration was .218 percent.

1. On 19 May 2003 the defendant was admitted to the Toowoomba Hospital, having been referred there by the Magistrate.  The next day he was seen by Dr Crompton, a consultant psychiatrist.  According to Dr Crompton's notes, he said that he had stolen the taxi, that he knew it was wrong, and that he had taken it because the driver went in the wrong direction.  He said, "You would do the same."  According to Dr Crompton's notes, he denied thought insertion, thought broadcasting, thought withdrawal, thought blocking.  Dr Crompton recorded, "No FTD", which I interpret as no formal thought disorder.

1. Evidence was received from Dr McIntyre, a consultant psychiatrist, who had examined the defendant at the request of the Court.  The defendant told him he had drunk six large bottles of full strength beer and half a bottle of rum.  He said he suspected the taxi driver might be a molester, a man who liked young men.  He said, "It was the only way to get away," although the taxi driver had not touched him or said anything improper to him.

1. In his first report Dr McIntyre expressed the opinion that at the relevant time the defendant was not deprived of any of the capacities in section 27 of the Criminal Code.  He considered the account of being in fear of molestation a recent disclosure and not of delusional intensity.

1. Dr McIntyre wrote a second report after review of the hospital notes.  He referred to the version given to Dr Crompton which I have already set out, and described this as a clear example of schizophrenic thought disorder in the context of a well established longstanding schizophrenic illness.  He said that the illness could well have deprived the defendant of the capacity to understand what he was doing or to control his actions.  He regarded the version about fear of molestation as a subsequent attempt to provide a credible explanation for the behaviour.  He concluded that the defendant had been of unsound mind at the time. 

1. Dr McIntyre gave oral evidence.  As I understood his evidence, he considered that at the time the defendant knew what he was doing was wrong, that he could have been deprived of the capacity of control, and that he was deprived of the capacity to understand what he was doing.  He was then questioned about whether intoxication with alcohol contributed to the defendant's mental state to any extent.  With respect to Dr McIntyre, he seemed to vacillate between saying on the one hand that the illness was sufficient to deprive him of capacity and on the other hand that the deprivation was primarily due to mental illness but he could not exclude the contribution of alcohol.

1. The defendant was examined also by Dr Venugopalan at the request of the Court.  Dr Venugopalan proceeded on the basis that the illness was in remission at the time of the offences although the defendant had some negative symptoms.  He assumed the intoxication was a voluntary intoxication.  The defendant gave him the account of being scared the driver was a homosexual who could be planning to molest him, asking rhetorically what other reason there would be for a fellow to take a young man on to a dark road.  The defendant said he could not remember directing the driver to take any turn.  He also told Dr Venugopalan that he chased the driver "because I was drunk". 

1. In Dr Venugopalan's opinion, it was unlikely that the defendant's capacity to understand what he was doing or his capacity to know that he ought not do the act was impaired.  He said that the capacity of control was impaired but that was as a result of alcohol intoxication and not as a result of mental disease. 

1. Dr Crompton's notes were put to Dr Venugopalan in oral evidence.  He said, "To me that does not show evidence of thought disorder."  He interpreted the notes as the defendant admitting being in a drunken state and later trying to justify what he did.  He emphasised that other notes were consistent with the absence of thought disorder, namely, the absence of thought insertion, thought broadcasting, thought withdrawal, thought blocking and the express reference, "No FTD". 

1. Dr Crompton was not called to give evidence to explain his notes. 

1. As I see it, Dr McIntyre did not exclude alcohol intoxication as a contributor to the defendant's mental state.  The basis for his altered opinion was his interpretation of Dr Crompton's note.  I think that note is equivocal, and that Dr McIntyre's interpretation of it is inconsistent with Dr Crompton's other notes.  Further, I found Dr McIntyre's evidence with respect to the deprivation of capacity to be somewhat muddled.  On the other hand, Dr Venugopalan's opinion was formed on the basis of his own assessment and consideration of the whole of Dr Crompton's notes.  He drew a clear distinction between the capacities. 

1. In all the circumstances, I concluded that at the relevant time the defendant was not of unsound mind.