Re Suda
[2013] QMHC 18
•15 May 2013
MENTAL HEALTH COURT
CITATION:
Re Suda [2013] QMHC 18
PARTIES:
REFERENCE BY DIRECTOR OF MENTAL HEALTH IN RESPECT OF SAKURA SUDA
PROCEEDING NO:
134 of 2012
DELIVERED ON:
15 May 2013
DELIVERED AT:
Brisbane
HEARING DATE:
7 and 8 May 2013
JUDGE:
Ann Lyons J
ASSISTING PSYCHIATRISTS:
Dr E N McVie
Dr F T VargheseFINDINGS AND ORDERS:
1. The defendant was not of unsound mind at the time of the commission of the alleged offences of arson and murder on 27 December 2011.
2. The proceedings against the defendant in relation to the alleged offence of arson on 27 December 2011 are to continue according to law.
3. The defendant was of diminished responsibility as per the Schedule of the Mental Health Act 2000 (Qld) and s 304A(1) of the Criminal Code Act 1899 (Qld) at the time of the alleged offence of murder on 27 December 2011.
4. Proceedings against the defendant for manslaughter, pursuant to s 304A(1) of the Criminal Code Act 1899 (Qld), should continue according to law.
5. The defendant is fit for trial.
CATCHWORDS
MENTAL HEALTH – DECLARATION OR FINDING OF MENTAL ILLNESS OR INCAPACITY – where defendant charged with arson and murder – where defendant diagnosed with major depressive disorder – whether defendant was of unsound mind as defined in the Schedule of the Mental Health Act 2000 (Qld) at the time of the alleged offences – whether defendant is fit for trial – whether the defendant had diminished responsibility in relation to the murder charge as per the Schedule of the Mental Health Act 2000 (Qld) and s 304A of the Criminal Code Act 1899 (Qld) – whether there was substantial impairment of the defendant’s capacity to know she ought not do the act
Criminal Code Act 1899 (Qld), ss 27 and 304A
Mental Health Act 2000 (Qld), Schedule and s 267R v Biess [1967] Qd R 470
COUNSEL:
J Briggs for the defendant
J Tate for the Director of Mental Health
B Campbell for the Director of Public ProsecutionsSOLICITORS:
Legal Aid Queensland for the defendant
Crown Law for the Director of Mental Health
Director of Public Prosecutions (Qld)
A LYONS J:
This is a Reference by the Director of Mental Health filed on 22 June 2012 in relation to Sakura Suda. Ms Suda is charged with two offences both of which are alleged to have occurred on 27 December 2011 namely:
(i) Murder of Kenji Suda; and
(ii) Wilfully and unlawfully setting fire to a building at Runcorn (Arson).
The circumstances surrounding the offences
It is alleged that at 9.43pm on 27 December 2011 police were advised that a fire had engulfed a dwelling at Runcorn which was a two storey townhouse in a complex of 34 townhouses in which Ms Suda resided with her ex-husband. Their eight year old daughter had returned to Japan to reside for a holiday with relatives a week earlier. The townhouse occupied by the Sudas was destroyed by fire. Mr Suda died as a result of his burns and Ms Suda sustained burns to her hands, arms, legs and a fracture to her wrist. Ms Suda had been injured when she jumped from a first storey window.
When the fire brigade arrived, Ms Suda told fire officers that her husband was still inside the dwelling. Initially she stated that she was asleep in bed when she woke to the smell of smoke and that her husband was downstairs. As she rushed downstairs she was forced back by the fire.
Investigations located a petrol tin inside the residence and police spoke to Ms Suda at the hospital about the item. She stated “big trouble” and “I did”.[1] In a subsequent interview Ms Suda stated that she had returned home on 27 December 2011 and had become involved in an argument with her husband at around 9pm involving discussions about his wish that she return to live in Japan and that he have custody of their daughter. She told police that her husband had initiated a divorce which had been finalised in October 2011. She told police that after the argument she went upstairs and picked up a petrol container from inside the guest bedroom and went downstairs to the living room where her husband was watching television.
[1]Report of Dr Grant, dated 17 April 2013, at p 3.
Ms Suda told police that she then opened the petrol container, threw the petrol on the ground in between herself and Kenji, then struck a match and threw it down in front of him. She stated that there was fire everywhere and that Kenji was screaming and he ran towards the garage. She stated that she then became scared and went upstairs. Ms Suda told police that she intended to kill herself and that she was “supposed to be dying with him”.[2] She stated that she tried to inhale smoke but she gave up and escaped through the upstairs window. She told police she had not discussed that idea with Kenji.
[2]Ibid.
Ms Suda told police that two or three days earlier she had attended the Shell service station at Compton Road and purchased $10 worth of petrol which she had placed in two petrol containers that she had brought home. She also brought matches from Coles. Closed circuit television shows Ms Suda purchasing the petrol on 25 December 2011.
Inquiries by police indicated that Ms Suda’s daughter had been sent to Japan by Mr Suda as he was afraid to leave her at home with Ms Suda as she would become angry and scream and yell at their daughter. Inquiries also revealed that Ms Suda was having an affair throughout 2010 and 2011. Ms Suda had attempted to work and live by herself from June to August 2011 but had returned to live with her husband and daughter after their divorce at the end of October 2011 in a ‘share’ arrangement.
History of Ms Suda’s mental functioning prior to the alleged offences.
The evidence indicates that Ms Suda had become progressively unwell in the two years prior to the alleged offences. The full history of Ms Suda’s functioning in that period is set out in extensive detail in Dr Voita’s report of 12 June 2012 and is also referred to by all the reporting psychiatrists. That history is uncontroversial and essentially establishes that Ms Suda had been referred by her general practitioner to a Japanese psychologist Dr Naito on the Gold Coast from May 2011 and had attended 6 or 7 sessions with him.
Dr Naito’s notes indicate that Ms Suda had been experiencing depressive symptoms for two years and she had reported that she was irritated and in a bad mood for most of the time. She could not sleep, she was losing weight and had lost 16 kgs over two years. He also noted that she was stressed and was spending lots of money with a high credit card debt. The case notes reveal that Ms Suda was having suicidal thoughts from May to December 2011 and was thinking about how she could kill herself. Ms Suda also indicated she was hearing some voices in May 2011.
Ms Suda was also seen by a clinical psychologist Dr Oroati twice in December 2011. He assessed her as suffering from moderate to severe depression but noted that there was no suicidal ideation or psychotic features present. He did however consider that she was having difficulty coping on her own and was fearful.
The psychiatrists’ reports
The Court has the benefit of a number of psychiatrists’ reports. In particular, the reports of Dr Angela Voita dated 12 June 2012, Dr Michael Beech dated 25 November 2012, Dr Eve Timmins dated 7 September 2012, and Dr Donald Grant dated 17 April 2013. There is also an update report from Dr Andrew Aboud dated 13 March 2013. The Court heard oral evidence from Dr Grant, Dr Timmins and Dr Beech.
All of these psychiatrists noted a similar history which is very much in terms as outlined above. The reporting psychiatrists also agreed that there was no dispute of facts and that there were no issues of intoxication.
The first issue which needs to be determined is whether Ms Suda was of unsound mind at the tine of the commission of the alleged offences of murder and arson on 27 December 2011. The first issue therefore is to ascertain the opinions of the psychiatrists as to the appropriate diagnosis.
Diagnosis
The evidence of the psychiatrists in relation to diagnosis is as follows:
Dr Voita’s report
Dr Voita was Ms Suda’s treating psychiatrist at The Park from February 2012 and she has prepared a report dated 12 June 2012. Dr Voita noted the police material outlining the circumstances surrounding the alleged offences in terms of Ms Suda’s psychiatric history. Dr Voita stated that Ms Suda had had an eating disorder at the age of 20 whilst she was living in Japan and was hospitalised for several days. She was depressed and heard voices at that time. Dr Voita also noted that after the birth of her daughter, she again became depressed and could not sleep for about six months.
Dr Voita indicated that Ms Suda said that her first contact with Mental Health Services in Australia was in 2011 when she was diagnosed with a major depressive disorder and offered antidepressant medication which she took for a brief time. She also commenced seeing a private psychologist at the Gold Coast in May 2011. Dr Voita noted that in June/July 2011 Ms Suda stated that there was an incident when she was distressed as she could not find her daughter and she started screaming and panicking at which point the neighbours called the police and they took her to the Princess Alexandra Hospital (“PA Hospital”) where she was discharged after a couple of hours. She told the doctors that she would go back to seeing her Japanese psychologist.
Dr Voita noted that the hospital notes recorded that she was taken to the PA Hospital on 14 October 2011 when she was panicking and screaming uncontrollably after her husband said he wanted sole custody of their daughter. Ms Suda had threatened to kill herself if she lost custody of her daughter. Ms Suda also reported depressive symptoms but denied ongoing suicidal ideation. She was discharged into the care of her ex-husband and follow up was with her psychologist and her general practitioner.
Ms Suda also told Dr Voita that there was an occasion where she left her workplace and slept in the car and when police found her, they thought she was unwell and took her to Logan Hospital. She was discharged from hospital into the care of her ex-husband. Dr Voita noted that the hospital notes record that she was taken to the Logan Hospital by Queensland police as her husband had called the police when he found out that she had walked out from her work in the afternoon and no one knew where she was. Police had found her sleeping in her car for approximately four hours. She had reported that she had started on new medication the previous day and it made her feel tired, dizzy and tight in the chest with increasing anxiety. She was diagnosed with a panic attack, depression and adjustment disorder and discharged back to the PA Hospital team.
Dr Voita indicated that Ms Suda was then seen by the PA Hospital on 3 November 2011 and she denied suicidal ideation, indicated she was dealing with her current issues and denied any psychotic symptoms. She was discharged into the care of her psychologist, Dr Naito.
Dr Voita noted that Ms Suda told her that in November 2011 she stopped seeing her psychologist and she stopped her medication and reported hearing a male voice behind her ears. She also believed that the neighbours were talking about her. She stated that she was hearing voices for about two to six months before the offences occurred.
Dr Voita noted that Ms Suda was seen by Dr Naito for a number of sessions between May 2011 and December 2011. The first two sessions were on 5 and 13 May and were to help her deal with her marital separation. She cancelled the third appointment in May due to financial difficulties after she moved out of the house. Dr Naito recorded that the presenting problems were marital relationship problems, anger outbursts, thoughts of double homicide (killing herself and her daughter), emotional dependence on her young boyfriend and intense fear of losing him, as well as a shopping addiction. Dr Naito then saw Ms Suda again for five sessions between October and December 2011 and the presenting problems were severe depression and fear regarding the possibility of losing the house, her husband and her daughter, as well as intense anger and frequent thoughts and mentioning of suicide and double homicide.
Dr Voita noted that in the sessions from October to December there was a sense of desperation and a declaration by Ms Suda that she was unable to live without Kenji and Airi, her daughter. There was also a note that her alcohol intake was high.
Dr Voita also recorded that Ms Suda was seen in hospital after the alleged offences on 20 January 2012 by Dr John Linnane, who stated that she had a history of chronic intermittent suicidal ideation and hearing a voice for at least six months. He noted that she had voiced thoughts of killing her daughter and herself at times of high distress but there was no plan. He indicated there were no features of psychosis identified and he noted personality and developmental vulnerabilities. He stated that the working diagnosis was:
“non psychotic depression precipitated in a vulnerable personality by the marital breakdown and fears of abandonment. Prior to the marital breakdown there would not have been criteria met for personality disorder. Suicidal ideation has been chronic (at least 6 months) and the voices and noised (sic) she describes, experienced as hallucinations, do not suggest a schizophrenic diagnosis and the overall picture does not suggest a psychotic depression. The working conclusion is that they are probably of a dissociative mechanism, though there is not information/evidence available to make a dissociative disorder diagnosis.”[3]
[3]Report of Dr Voita, dated 12 June 2012, at p 7.
Dr Voita then noted Ms Suda’s contact with the Prison Mental Health Service following her transfer from the PA Hospital, after her burns were treated, to the Brisbane Women’s Correctional Centre. Dr Voita noted she was assessed by a psychiatrist Dr Aboud on 15 February 2012. He reported a two year history of depressive symptoms and that she had reported auditory hallucinations for about six months prior to the alleged offences. He also noted that she claimed she had been contemplating suicide for about six months and had started thinking about dying with her husband approximately one week before the fire.
Dr Voita noted that Dr Aboud assessed her as suffering from a major depression with psychotic features and referred her for admission to The Park. Dr Voita stated that she became her treating psychiatrist on admission to The Park on 28 February 2012. At the initial interview, Dr Voita noted the history of poor sleep and weight loss in the preceding two years as well as the auditory hallucinations for about two to six months prior to the alleged offences. Dr Voita also noted the prescription of the antidepressant Pristiq for two weeks prior to the alleged offences. Dr Voita completed a s 238 report but was unable to give an opinion as to whether Ms Suda was of unsound mind at the time as she had been instructed by her lawyer not to provide an account of the alleged offences.
Dr Voita noted that Ms Suda had flashbacks and ongoing suicidal ideation over the first month of her admission and that her antidepressant medication was subsequently changed to Efexor and that the dosage was increased. At the time of her report, she indicated there were no psychotic symptoms and no suicidal thoughts. She indicated that Ms Suda’s mental status improved by the end of March 2012 and that Ms Suda has been successfully accessing activities since late March 2012.
Dr Voita was satisfied that Ms Suda was suffering from a mental disease at the time as per s 27 of the Criminal Code Act 1899 (Qld) (“Criminal Code”). She considered that at the time of the alleged offences, Ms Suda was suffering from a major depressive disorder with psychotic features and that a differential diagnosis of a bipolar affective disorder - depressive episode would also need to be considered. Dr Voita also considered that there is some evidence that Ms Suda may have suffered from a prior manic or hypermanic episode of bipolar affective disorder given the excessive spending in early 2011 and increased libido and energy.
Dr Voita noted that Ms Suda failed to disclose any auditory hallucinations until after her arrest. Dr Voita also considered that Ms Suda has borderline personality traits which were evidenced by “intense fear of abandonment, mood lability and difficulty with anger”.[4]
[4]Ibid, at p 13.
Dr Timmins’ Report
Dr Timmins also concluded that at the time of the alleged offences Ms Suda was suffering from a mental disease as described in s 27 of the Criminal Code, namely a major depression – severe with psychotic features. She considered that at the time, Ms Suda was experiencing depressed and irritable mood, neurovegetative disturbances such as poor sleep and weight loss, fatigue, loss of energy and recurrent suicidal ideation and plans in addition to persecutory beliefs. She was also experiencing thoughts and intent to harm her husband.
Dr Timmins considered that Ms Suda had partial insight into the nature of her illness and the need for treatment. She also noted an associated impairment of occupational and social functioning in keeping with the diagnosis of major depressive episode. Dr Timmins noted a background history of a possible depressive episode when Ms Suda was 20 and a family history of mental illness.
Dr Timmins considered that the current episode developed in the context of marital difficulties with both herself and her ex-husband engaging in extra-marital affairs. In May 2011, Ms Suda started to have thoughts of killing herself and her daughter and hre illness then deteriorated from June 2011 onwards in the context of disengaging with her psychologist and poor compliance with antidepressant medication. Dr Timmins noted that by November 2011, Ms Suda had developed psychotic symptoms believing that the neighbours were talking and laughing about her. After her husband decided to end the marriage and separate from Ms Suda, as well as separating Ms Suda from her only child by sending their daughter to Japan, Ms Suda’s emotions and thoughts to harm herself and her husband increased to the extent that she bought petrol and matches in the days leading up to the night of 27 December 2011.
Dr Timmins initially considered Ms Suda also meets the criteria for borderline personality disorder but conceded after questioning that the evidence might not be sufficient to amount to a disorder but that there were definitely borderline traits present.
Dr Grant’s report
Dr Grant’s opinion was that Ms Suda was suffering from a mental illness, namely major depression with psychotic features, at the time of the offences.
Dr Beech’s report
Dr Beech also considered that Ms Suda was suffering from a mental illness and that there was ample evidence that she had developed a major depressive episode of at least moderate intensity throughout 2011. He considered that the depressive episode had probably developed over a two year period in the context of a difficult marriage, a breakup with her boyfriend, a divorce and the threat of loss of custody of her daughter.
Dr Beech considered that the depression became more severe as the year progressed and that by the end of 2011, Ms Suda had come to the notice of mental health services with two Emergency Examination Orders, the prescription of anti depressants and at least eight appointments with two psychologists. He noted that in October and November there was documented fleeting suicidality but no evidence of psychosis.
On the basis of those reports and the advice of the assisting psychiatrists, which is set out later in these reasons, I am satisfied that Ms Suda had a diagnosis of a major depressive disorder which is a mental illness and is a ‘mental disease’ for the purposes of s 27 of the Criminal Code.
Having determined that Ms Suda was suffering from a mental illness at the time of the commission of the alleged offences, the next issue which arises for consideration is the question as to whether Ms Suda was of unsound mind or diminished responsibility at the time.
The views of the reporting psychiatrists in relation to unsoundness of mind in relation to the alleged offences of murder and arson
Section 267 of the Mental Health Act 2000 (Qld) (the “Act”) provides:
“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.
…”
In order to determine the first question, which is whether Ms Suda was of unsound mind at the time of the offences, it is necessary to consider the views of the reporting psychiatrists in this regard.
Dr Timmins
Dr Timmins concluded that at the time of the alleged offences, Ms Suda was not completely deprived of any of the three capacities. She considered that Ms Suda understood what she was doing because of the premeditation of the arson. Ms Suda experienced thoughts of killing herself and her husband. She bought the matches and petrol on two separate occasions and then hid those items.
In terms of the capacity to know she ought not do the act, Dr Timmins did not consider Ms Suda was completely deprived of this capacity. While she noted there was a depressive illness in evidence by June 2011, when Ms Suda found out her husband and her boyfriend were leaving her, she became resentful and angry. She then became angrier when her husband divorced her and sent their only child to Japan. She considers that Ms Suda’s initial sadness developed into anger and the situation became worse. Ms Suda then thought about harming her husband. Dr Timmins considered that the combination of psychotic depression, personality disorder and the increasingly desperate situation perhaps contributed to Ms Suda’s thinking that the only option left was for her to kill herself and her husband.
Dr Timmins, however, considered that by gathering the implements she could use to light a fire and then hiding them from her husband, Ms Suda knew on some level that having these items was dangerous and that she would be in great trouble if she were found out. She did not have a clear idea as to when she would act on the thoughts, but by buying the items over the course of the days leading to the alleged offences, Dr Timmins considered that this indicated she was actively planning to carry out her thoughts to harm herself and her husband at some stage.
Dr Timmins noted that Ms Suda and her husband argued on the night of the alleged offences and that there do not appear to be any psychotic symptoms driving her behaviour during that time. She noted that it was after the argument that Ms Suda went upstairs and took out the petrol tin and matches. She does not consider Ms Suda was completely deprived of the capacity to know she ought not do the acts. Dr Timmins does not consider she was completely deprived of the capacity to control her actions and there was no evidence to suggest she experienced passivity phenomena or was responding to auditory hallucinations.
Dr Grant
Dr Grant’s opinion was that even though Ms Suda was suffering from a mental illness and her behaviour was significantly motivated by her depression and suicidal ideation, it was also motivated by anger regarding her divorce and custody of her daughter. He noted that the auditory hallucinations, which were not reported until after the event, were consistent with a psychotic depression. However, he considered that there was no apparent command element in relation to the actual offence of murder of her husband.
Taking these factors into account, Dr Grant concluded that Ms Suda’s mental illness did not totally deprive her of any of the capacities in relation to unsoundness of mind as defined under s 27 of the Criminal Code.
Dr Beech
Dr Beech, in his report, stated it was unclear to him whether Ms Suda’s depression had deteriorated into psychosis at the time of the alleged offences. He noted that none of the assessments prior to the fire revealed any psychosis. Dr Beech considered that Ms Suda’s lack of recall of the incident, the pre-meditation of the fire, the lack of corroborating material, and the possibility that the act was driven in part by anger, precluded Dr Beech from stating with sufficient confidence that she was deprived of the capacity to know it was wrong. His evidence therefore does not support a finding of unsoundness for either offence.
The views of the reporting psychiatrists in relation to the question of diminished responsibility at the time of the alleged offence of murder
In terms of diminished responsibility in relation to the murder charge, Dr Timmins considered that whilst it was possible that the degree of symptoms may have contributed to a substantial impairment, she did not believe Ms Suda was substantially impaired in any of the three capacities and did not meet the requirements in relation to a finding of diminished responsibility. Dr Timmins considered Ms Suda was fit for trial.
Dr Grant’s opinion was that Ms Suda’s major depression and psychosis substantially impacted on her overall functioning. He considered she was suffering from an abnormality of mind which substantially impaired her capacity to know that she ought not do the act and her capacity to control her actions. Therefore, he considered that she would have been suffering from diminished responsibility at the time of the murder.
In his report, Dr Beech stated that it was unclear to him what Ms Suda’s mental state was after she lit the fire and to what extent the argument with her husband “piqued her anger so that the act occurred in part out of anger”.[5] However, he considered that “she was depressed enough, possibly acutely following the argument, to the point of being substantially impaired in her capacity to know that she ought not to have set her husband alight.”[6]
Advice of assisting psychiatrists
[5]Report of Dr Beech, dated 25 November 2012, at p 24.
[6]Ibid.
Dr McVie
Dr McVie advised that a summation of all clinical evidence was that Ms Suda developed a depressive illness, which was evident for at least six months prior to the offences and had possibly been developing for some two years. Dr McVie stated that, “the background history of her illness is that of recurrent depressive episodes with similar symptoms: auditory hallucinations, weight loss and sleep disturbance.”[7]
[7]T2-14, at lines 2-3.
Dr McVie noted that Dr Grant considered a differential diagnosis of bipolar, which she would also advise should be considered long term for Ms Suda. She also noted that certainly during the two-year period prior to the commission of the offences, there were episodes of behaviour and emotional instability, which were suggestive of borderline personality traits, though the history is not indicative of this type of behaviour throughout most of the periods of her life.
Dr McVie stated that in the lead-up to the offences, Ms Suda did engage with Japanese-speaking psychologists and had been assessed by public mental health services, but there was some failure to engage adequately with treatment, possibly due to cultural difficulties, language difficulties and a degree of impaired insight, which caused her problems in acknowledging her own depressive symptoms and the severity of them. Dr McVie noted that both Dr Timmins and Dr Grant diagnosed severe major depressive illness with psychotic features at the time of the offences. Dr Beech was not satisfied that Ms Suda was psychotic prior to the incident.
In relation to the psychotic features, Dr McVie advised that Dr Grant’s evidence regarding the nature of the voices, and Ms Suda’s consistent descriptions over time, are consistent with the common features of severe depressive illness and are a feature of a psychotic depression. Dr McVie also considered it possible in the lead-up to the offences that Ms Suda’s partial treatment or low dose trial of the antidepressant Pristiq may have caused her some physical side effects.
Dr McVie also referred to Dr Beech’s evidence that treatment with an antidepressant for a short period of time may in fact increase the risk of suicide, in terms of partial treatment increasing agitation, and energy and motivation improving before mood improves. Dr McVie considered that Ms Suda had progressed to a stage where she was planning suicide, having purchased the petrol and the matches, and this would be consistent with her demeanour on the evening prior to the offences.
Dr McVie advised that the Court should accept the opinions of Dr Beech and Dr Grant that:
“at the time of the offence she was suffering with a severe major depressive illness, which was sufficient to substantially impair her, at least in the capacity to know that she ought not do the act. She had impaired ability to make logical decisions. The emotional ability and her ability to manage her anger would have been impaired and could be seen as part of her depressive illness, not necessarily as independent factors operating individuals.”[8]
[8]T2-14, at lines 35-40.
Dr Varghese
Dr Varghese advised that it is not in dispute that at the time of the killing, Ms Suda was suffering from major depression. On the question of whether there is an additional personality disorder, Dr Varghese’s advice to the Court was that:
“the clinical data longitudinally does not support personality disorder and that many of the features said to be a personality disorder are state (sic) factors rather than trait factors. There may be some degree of dependency, but not to an extent of disorder.”[9]
[9]T2-15, at lines 3-6.
Dr Varghese noted that there have been episodes of major depression in the past, including in the postnatal period and that the implication is that there are likely to be future episodes of depression, given Ms Suda’s natural history. He considered that this recurrent major depression could also be called unipolar affective disorder to distinguish it from bipolar affective disorder. Dr Varghese advised that although Dr Grant raised the question of whether there might have been a minor hypomanic episode in the past, in his view, bipolar disorder needs to be considered in the long term. He considered that the depression was of such severity as to produce psychotic symptoms, although there is disagreement as to whether the psychotic symptoms preceded the killing and arson or developed later as the depression intensified following the event, as a result of her injuries, the charges and incarceration and hospitalisation.
Dr Varghese advised that whether or not there were psychotic symptoms prior to the index event, the depression was severe and accompanied by suicidal ideation and thoughts of homicide with respect to her child. Dr Varghese noted that Dr Beech suggested that 50 per cent of women who have suicidal ideation also have homicidal ideation. Dr Varghese did not accept that and stated, “Thoughts of harming your child would be rare in women who are suicidal and are indicative of a degree of severity of depression, unless there is severe personality disorder.”[10] He said further that:
“if there were psychotic symptoms at the time of the killing of the nature as described, then it is arguable that there was a disease of the mind such that there was deprivation of capacity. However, in the absence of evidence in the court from the two reporting psychiatrists, and this question was put to all of them, I am unable to advise your Honour along these lines.”[11]
[10]T2-15, at lines 25-27.
[11]T2-15, at lines 27-32.
Dr Varghese noted that Dr Timmins was the only reporting psychiatrist who accepts that there were psychotic symptoms which were present for some time before the killing and the arson, but she does not support a finding of diminished responsibility or unsoundness. Dr Varghese also noted that Dr Grant accepts that there may have been psychotic symptoms prior to the event, but nevertheless he does not support unsoundness on his assessment but does support a finding of diminished responsibility.
In relation to the question of diminished responsibility, Dr Varghese advised the Court:
“the clinical evidence is clear that the first limb is met in that there was a serious depression present and, to an extent, the treatment was sought and antidepressants prescribed, although not for a sufficient time for a response. This major depression would constitute an abnormality of mind, and I note that that’s not in dispute, and the abnormality of mind would arise out of both inherent factors and illness and disease.”[12]
[12]T2-15, at lines 40-45.
Given the intensity of the depression and its effects on cognition, including suicidality, Dr Varghese advised that it would be difficult to see how Ms Suda could have appraised her situation with a full sense of composure as to the rightness or wrongness of the act. Even if she was not deprived of this capacity, Dr Varghese advised that Ms Suda was impaired, and substantially so, on the available evidence. His advice was that the impairment was certainly not trivial and probably close to total, if indeed she was psychotic.
Dr Varghese considered, on the clinical evidence, that the defence of diminished responsibility is available to the Ms Suda. Dr Varghese also advised that if Ms Suda is found to be of diminished responsibility, then he considered it was crucial that Ms Suda’s treatment needs were met at the correctional centre. He also advised that follow-up should be arranged if she is to be released at any time as there are very significant issues of risk of suicide. Dr Varghese advised that while there may not be imminent risks, the long-term risk is high if Ms Suda were to cease treatment, given that she has a recurrent condition and will almost certainly have future episodes if she does not have ongoing treatment.
Dr Varghese also considered that the removal of the protective factor of her daughter, who is now in Japan, may be a further risk factor, and, he also noted that it does not seem like Ms Suda has much social support. On the positive side, Dr Varghese indicated that she has a treatable illness and she will need to persist with treatment on a long-term basis, perhaps a lifetime basis. He considered Ms Suda was fit for trial.
Was Ms Suda of Unsound mind at the time of the commission of either offence?
The term ‘unsound mind’ is defined in the Schedule to the Act as:
“the state of mental disease or natural mental infirmity described in the Criminal Code, section 27, but does not include a state of mind resulting, to any extent, from intentional intoxication or stupefaction alone or in combination with some other agent at or about the time of the alleged offence.”
Section 27 of the Criminal Code then provides:
“27 Insanity
(1) A person is not criminally responsible for an act or omission if at the time of doing the act or making the omission the person is in such a state of mental disease or natural mental infirmity as to deprive the person of capacity to understand what the person is doing, or of capacity to control the person’s actions, or of capacity to know that the person ought not to do the act or make the omission.
(2) A person whose mind, at the time of the person’s doing or omitting to do an act, is affected by delusions on some specific matter or matters, but who is not otherwise entitled to the benefit of subsection (1), is criminally responsible for the act or omission to the same extent as if the real state of things had been such as the person was induced by the delusions to believe to exist.”
Having considered the reports of the Drs Timmins, Beech and Grant as well as the advice of the assisting psychiatrists, I am satisfied that there is no evidence to support a finding of unsoundness of mind for either the charge of murder or the charge of arson. I agree with the submission of Counsel for the DPP that such a finding would indeed be against the weight of the evidence. I am therefore satisfied that at the time of the commission of the alleged offences of murder and arson, Ms Suda was not of unsound mind.
Accordingly, in terms of the arson charge, the proceedings should continue according to law. I am satisfied that on the evidence currently before the court Ms Suda is fit for trial.
The real question to be determined in this Reference is whether Ms Suda was of diminished responsibility in relation to the offence of murder.
Was Ms Suda of diminished responsibility at the time of the commission of the alleged offence of murder?
Having determined pursuant to s 267(1)(a) of the Act that Ms Suda was not of unsound mind in relation to the charge of murder, the next issue to be determined is whether, pursuant to s 267(1)(b) of the Act, Ms Suda was of diminished responsibility in relation to that charge. The Schedule of the Act defines “diminished responsibility” as “the state of abnormality of mind described in the Criminal Code, section 304A”.
Section 304A of the Criminal Code then provides:
“304A Diminished responsibility
(1) When a person who unlawfully kills another under circumstances which, but for the provisions of this section, would constitute murder, is at the time of doing the act or making the omission which causes death in such a state of abnormality of mind (whether arising from a condition of arrested or retarded development of mind or inherent causes or induced by disease or injury) as substantially to impair the person’s capacity to understand what the person is doing, or the person’s capacity to control the person’s actions, or the person’s capacity to know that the person ought not to do the act or make the omission, the person is guilty of manslaughter only.
(2) On a charge of murder, it shall be for the defence to prove that the person charged is by virtue of this section liable to be convicted of manslaughter only.”
I am satisfied that all of the evidence supports a finding that Ms Suda’s depressive illness constitutes an “abnormality of the mind” for the purposes of s 304A of the Criminal Code.
The real question is whether any of the relevant capacities were “substantially impaired” at the time.
The reports of Drs Grant and Beech and the advice of the assisting psychiatrists are that Ms Suda was substantially impaired in relation to her capacity to know she ought not do the act. Those reports and that advice are of course of considerable assistance to the Court in the determination of that question, but are of course not determinative, as it is for the Court to determine whether an impairment is substantial. What does the term ‘substantially impaired’ mean? As has been noted in previous decisions of this Court, the word ‘substantial’ is imprecise and essentially means something between minimal impairment and total impairment. In R v Biess,[13] the Court of Criminal Appeal held that courts, when dealing with s 304A, are dealing with questions of degree and it is not possible wholly to escape from words of degree. The court explained ‘substantially’ “as being something between trivial or minimal and total”.[14]
[13] [1967] Qd R 470.
[14] Ibid at 485 per Matthews J, citing R v Lloyd (1966) 2 WLR 13.
Having considered the reports of the reporting psychiatrists, it would seem to me that the real question in this case is whether Ms Suda was able to appreciate the wrongness of the particular act she was doing at the particular time. The question is whether there was a substantial impairment of her capacity to know she ought not to do the act at the time she ignited the fire.
In this regard, Counsel for the DPP relies on the evidence of Dr Beech that he did not consider that there was any evidence of psychosis at the time. Counsel in particular argues that there is no objective evidence that she had psychotic symptoms prior to the offending and that those symptoms were not reported until afterwards, at a time when her depressive illness was exacerbated. Counsel also argues that there is not sufficient evidence to indicate that she was substantially impaired, particularly as there is some evidence that she was taking anti-psychotics up to the time of the offending. There is then the observation of Dr Naito on 13 December 2011, two weeks prior to the alleged offences, noting that there had been some positive steps. Counsel for the DPP in particular relies on the purchasing of the petrol and the matches some days before the allege offences, which he submits is indicative of some degree of planning. He also argues that the hiding of the petrol indicates at least a significant appreciation of the wrongfulness of the action.
Counsel also argues that on the night of the incident, Ms Suda went out with friends and was apparently pleasant and normal. Furthermore, it is argued that the actual circumstances of the alleged offences indicate that Ms Suda engaged in purposeful behaviour after the argument when she became angry with her husband. In particular, she went upstairs, got the petrol, threw petrol near her husband and ignited it. Counsel also points out that she did not carry through with her own suicide and that she acted in the context of anger and, in reaction to the argument, carried out those purposeful acts. It is also argued that the fact that she told her neighbours that her husband was inside the burning house indicated that she realised that what she had done was very wrong.
Counsel also argues that Ms Suda’s lie to the police is an important issue as it shows an acute awareness of the wrongfulness of the action. He also points out that her admission of “Big trouble. I did” is an acknowledgement of the wrongfulness of her actions at the time.
Clearly, the question as to whether Ms Suda was substantially impaired is a question of degree. In my view, there is clear evidence of the two year history of the development of Ms Suda’s depression for which she was seeking active treatment from her general practitioner and counselling from psychologists. Ms Suda was so unwell that she had come into contact with public mental health services at both the Logan and PA Hospitals. The contemporaneous documentation from Dr Naito indicates that Ms Suda was both suicidal and homicidal during 2011. Dr Beech summarised it in these terms:
“she had come to mental health services notice, with two Emergency Examination Orders; she had been prescribed antidepressants; and she had been seen by two psychologists.”[15]
[15]Report of Dr Beech, dated 25 November 2012, at p 22.
There is clear evidence that this was a serious depressive episode. In my view, it does not matter whether it had reached the stage where there were psychotic features, given she was so significantly depressed. I consider that she was so significantly and overwhelmingly depressed that she was unable to know she ought not do the acts. I consider that due to her overwhelming depression, which is clearly an abnormality of the mind, Ms Suda was indeed substantially impaired in relation to that capacity.
Accordingly, as Ms Suda was of diminished responsibility at the time of the alleged offence of murder, the charge of manslaughter should continue according to law.
As I have already indicated, Ms Suda is currently fit for trial.
Orders
1. The defendant was not of unsound mind at the time of the commission of the alleged offences of arson and murder on 27 December 2011.
2. The proceedings against the defendant in relation to the alleged offence of arson on 27 December 2011 are to continue according to law.
3. The defendant was of diminished responsibility as per s 304A(1) of the Criminal Code Act 1899 (Qld) at the time of the alleged offence of murder on 27 December 2011.
4. The proceedings against the defendant for manslaughter, pursuant to s 304A(1) of the Criminal Code Act 1899 (Qld), should continue according to law.
5. The defendant is fit for trial.
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