Re Terelinck

[2011] QMHC 5

MENTAL HEALTH COURT

CITATION:	Re Terelinck  [2011] QMHC 5
PARTIES:	REFERENCE BY THE LEGAL REPRESENTATIVES IN RESPECT OF DAVID ROBERT TERELINCK
PROCEEDING NO:	No 0197/09
DELIVERED ON:	24 May 2011
DELIVERED AT:	Brisbane
HEARING DATE:	28, 29 April, 4 May, 11 May 2011
JUDGE:	Ann Lyons J
ASSISTING PSYCHIATRISTS:	Dr E N McVie Dr Lawrence
FINDINGS AND ORDERS:	That at the time of the alleged offence the defendant was suffering from unsoundness of mind as described in schedule 2 of the Mental Health Act 2000 (Qld); The defendant is detained, pursuant to a forensic order, to the Park High Security Program Authorised Mental Health Service; That correctional services officers take Mr Terelinck to The Park Authorised Mental Health Service pursuant to s 292 of the Mental Health Act 2000 (Qld)
COUNSEL:	J Briggs for the defendant J Tate for the Director of Mental Health D Holliday for the Director of Public Prosecutions
SOLICITORS:	Legal Aid Queensland for the defendant Crown Law for the Director of Mental Health Director of Public Prosecutions (Qld)

ANN LYONS J:

1. Mr David Robert Terelinck is charged with the murder of Mr Ian McMillan on a date unknown between 11 April 2008 and 14 April 2008. Mr McMillan died as a result of five stab wounds to the chest. 

1. Mr Terelinck was found by police at Mr McMillan’s home around 1pm on Sunday 13 April 2008 after Mr Terelinck had called Lifeline and confessed.  Mr Terelinck told the Lifeline counsellor that he had killed his partner, taken an overdose of tablets and wanted to die. When found by police Mr Terelinck was naked and confused with an excoriated scrotum and perineum. Mr McMillan was found dead in his bed, naked. Blood and alcohol testing done at 10pm that night indicated the presence of Alprazolam but with no other drugs or alcohol were detected.

1. In a reference by Legal Aid Queensland dated 14 August 2009 Mr Terelinck’s legal representatives have referred the question of Mr Terelinck’s mental state at the time of the commission of the alleged offence to this court.

Factual Background

1. Mr McMillan was a 57 year old retiree who lived at North Ipswich. Mr McMillan went to Murphy’s Pub in Ipswich by taxi every day and stayed from about 10.30am to 3 or 4pm drinking.  Mr Terelinck also had a history of excessive alcohol consumption and had previously resided at the Commercial Hotel Ipswich.  Mr Terelinck also drank regularly at Murphy’s Pub.

1. Mr McMillan and Mr Terelinck became friendly at the hotel and ultimately Mr McMillan invited Mr Terelinck to stay with him. Mr Terelinck performed domestic chores and gave sexual favours in exchange for gifts, money and board.  Mr McMillan was generous to Mr Terelinck and had recently bought him a car for six thousand dollars. There was no evidence of any overt hostility in the relationship and Mr Terelinck described Mr McMillan as a “good bloke”.  They resided together for about two months prior to the killing.

1. Mr Terelinck admits to killing Mr McMillan. He was 21 years old at the time he stabbed him. 

The arrest, the field tapes and the interview

1. When arrested on the afternoon of 13 April 2008 Mr Terelinck was naked and confused.  There are tape recordings of Mr Terelinck’s conversations with police from the moment he was detained by police.  A formal record of interview was also conducted on the evening of his arrest.

1. Mr Terelinck told police what he said he could remember of the days leading up to the stabbing. He told police he had been at the Gold Coast with friends on the weekend before the killing and then returned to Ipswich.  He realised he had left his keys at the coast and Mr McMillan drove him back to the coast around 8 April 2008. They then stayed for a couple of nights at Mr McMillan’s brother’s house at Paradise Point as his brother was away in Darwin at the time.

1. He told police that one night they went to the Paradise Point Bowls Club and he became anxious and suddenly started experiencing a real “high”.  He then started feeling “fearful”. This was also associated with noticing odd things happening around him. This developed into a belief that Mr McMillan was a “Keno king” because the number 35 kept coming up during the game they were observing. Mr Terelinck believed that Mr McMillan had some ability to influence the numbers and was very wealthy.  He subsequently believed however that he posed a threat to him and he also feared that other people might mean to kill him also. He described being fearful of a person on a courtesy bus who he thought had a gun in a bag and would kill him. 

1. He also developed a belief that Mr McMillan had some religious power or other supernatural power over him. He described getting a saucepan of water to wash Mr McMillan’s feet as well as confessing all his sins to him. He told police:[1]

“We went to Paradise Point Bowls Club, right? Come back, that was all good. Stayed there all night. And then the next night something happened to me. We were sitting down at dinner and, I don’t know if he used, I don’t know what he used but he was making out to be, the fucking king of the world.  You know, the owner of a kingdom or some shit.
  ...Ok, and then, that night he’s, I think he pretended he was God or Jesus or         some shit. I washed his feet, then I went to sleep and things have never been the same again. Never been the same. Why me? What did I do so [indistinct]? I’m not insane, I’m telling you the truth.”

[1]Transcript of Field tape 13 April 2008 at p 98.

1. Mr Terelinck also described being very fearful on the drive back to Ipswich believing that people were trying to run them off the road. He said “I had all these trucks and stuff trying to run us off the road.” On their return to Ipswich on Thursday Mr McMillan worked at Meals on Wheels and Mr Terelinck helped him. He developed concerns however that there were people outside the house who meant to harm him. He states he became increasingly anxious and felt trapped. He states he called Lifeline for assistance that night.

1. At some time between Thursday 10 April and Sunday 13 April Mr Terelinck told police that he took a knife and stabbed Mr McMillan.  He subsequently told police that he didn’t know why he had done so other than saying that he felt “trapped” and that he had to get McMillan “out of his head”. As well as the five stab wounds to the upper torso Mr McMillan also had defensive wounds on his hands.  Mr Terelinck described to police waking up beside McMillan, walking around the house, having several cigarettes then walking into the kitchen, removing a knife from a block entering the bedroom and stabbing him while he lay in bed. He then washed the knife in the sink.

1. At some stage he said he took an overdose of Mr McMillan’s prescription drugs and stated that he did this because he “didn’t know where to turn. I didn’t know what to do.”[2]  He told police the overdose was the night before he was arrested.  He said:[3]

“I think it would have been before midnight, I think around about 11.30, I didn’t actually go to sleep [indistinct] I had a few smokes because I just didn’t know what to do, I couldn’t, couldn’t sleep.”

[2]Record of Interview 13 April 2008 at p 62.

[3]Transcript of Field tape 13 April 2008 at p 26.

1. He denied the use of drugs or alcohol, but feared that he might have drugged or had his drink spiked while at the Gold Coast.  He told staff at the emergency department at Ipswich Hospital that he “hadn’t taken drugs intentionally like ekkies and that” and then asked “Can youse test whether I’ve been drugged in the past?”[4] He told them his whole life seemed like a “dream”.

   [4]Transcript of Field tape 13 April 2008 at p 38.

1. On 13 April he made repeated references to police about his mind having been affected by Mr McMillan, and about his anxiety and fears that people meant to harm him.  He told police that “after we went down the Gold Coast [indistinct] he did something to me.”[5]  He also said:

“He told me I’d be safe in Ipswich. And nothing would ever happen to me, then he told me I’d be safer at Paradise Point and nothing would ever happen to me there.  And he told me that, up at Paradise bowls, Paradise bowls club whatever it is, I’d be safe up there and nothing [indistinct] and the casino would be safe there, but don’t ever go to Surfers Paradise.”[6] 

[5]Transcript of Field tape 13 April 2008 at p 34.

[6]Transcript of Field tape 13 April 2008 at pp 9-10.

1. He also referred to his beliefs that Mr McMillan was wealthy and his belief that Mr McMillan having trapped him, as well as being confused by experiences around him. He referred to walking back to the house at Paradise Point as well as smashing his mobile phone.  He stated that McMillan made him “feel like I was fucking insane.” In relation to the stabbing he told police the following during the Record of Interview on the evening of 13 April:

“He told me that, he just fucked with my head big time, he just said that he was you know? God and then that he was the Devil. And something in my mind told me to kill him and then kill myself. He literally messed with my fucken head big time.” 

1. During the Record of Interview Mr Terelinck kept repeating that he felt trapped and scared. He continually referred to McMillan twisting his mind. He referred to the fact that in return for the gifts and rent he had to let McMillan have some sexual interaction.  He referred to allowing McMillan to “get the occasional kiss” and to “play around with me”.  He also said he “let him play with my doodle” and “My balls. Let him suck me off.”[7]

   [7]Record of Interview 13 April 2008 p 17.

1. When found he told police he thought it was Friday. At one stage he asked police if he was dead and said “He made me believe that we were dead.”[8]  Paramedic Kevin Freeman who attended at the scene said his outward appearance appeared normal with no apparent injuries apart from his swollen and red testicles. He described him as being confused and didn’t know what day it was. “He was rambling about the date and day”. Paramedic Richard Vere stated he made a quick inventory of the drugs he saw lying around and said in the bedroom were empty bottles lying on the floor next to the bed of “Alprazolam, Coversyl and Prednisone”.   In the kitchen he found half a dozen packets of pills and said “Half were empty and the other half were half empty, the ones that were half empty were Endep and Avanza.” Mr Terelinck told the paramedic he had taken the tablets the night before.

   [8]Transcript of Field tape 13 April 2008 at p 127.

1. Mr Terelinck was taken to the Emergency Department of the Ipswich Hospital.

The Lifeline Calls

1. Mr Terelinck made a series of calls to Lifeline. Mr McMillan’s telephone records indicate that the first call to Lifeline was at 7.05pm on Thursday 10 April and that there were a total of three calls that evening with the last call at 7.23pm lasting 28 minutes. There were three calls on 11 April between 3.04pm and 6.20pm with the longest call being nine and a half minutes at 3.04pm.  On Sunday 13 April there was a call at 11.46am which lasted an hour and a half.

1. During this lengthy call to Lifeline he appeared to be speaking with a slurred voice and eventually told the counsellor that he had killed his partner. Lifeline notified police.

Dr Van de Hoef’s Evidence

1. Mr Terelinck was initially seen in the Ipswich Hospital Emergency Department on the afternoon of 13 April 2008 and had been assessed by emergency physician Dr Nick Milns and psychiatric registrar Dr Julio Clavaio.  Dr Clavaio considered Mr Terelinck was delirious however Dr Milns subsequently assessed him as fit to be interviewed by police. 

1. Psychiatrist Dr Van de Hoef was asked to assess Mr Terelinck to ascertain if he was exhibiting any signs of mental illness.  Dr Van de Hoef conducted a psychiatric assessment around midday on 14 April 2008 the day after he was admitted to hospital.  Dr Van de Hoef stated that Dr Van de Hoef stated that when she saw him he was showing no signs of delirium but accepts that, given the cocktail of drugs he had taken, there would have been a delirium and that the ingestion of the various substances was the most likely cause.  

1. Dr Van de Hoef stated that such a delirium would probably come on within hours of the ingestion of the drugs and would affect a person’s memory of events immediately before the ingestion even up to a couple of days. She stated however:[9]

“I would have thought the further back you go, the less likely memory would be affected. However, if you’re delirious, intoxicated on a cocktail of enormous numbers of things, you still might say something about what happened that actually hadn’t happened, as a drunk person would. So whether that’s a distortion of memory or whether that’s an expression of intoxication or delirium at that time, I think it’s very hard to say, but – particularly if you’re a young fit person – as I say, for events days before an overdose that would render you delirious, I would expect those memories to be relatively preserved, or at least retrievable after the delirium settled.”

[9]Transcript day 3 p 13 ll 10-25.

1. She noted that at the time she saw Mr Terelinck “he was scared and very, very distressed by events.”[10] She also noted that he had a very, excoriated scrotal and perineal area which looked like a “chemical burn” which he was really unable to explain.  Mr Terelinck told her that he had not had any prescription medication at all in the two months prior to the killing and he also denied any alcohol or drug use around the day of the offence. He particularly denied ever using cannabis but admitted to using ecstasy in the distant past.

   [10]Transcript day 3 p 5 l 43.

1. Dr Van de Hoef noted that he was reported to have said odd things to ambulance officers and police and that he said a few things to her that had a ‘religious or religiose flavour’.[11]  He told her that Mr McMillan “had come to him in God’s form and had forgiven his sins. He said he killed him, but he didn’t know why.”[12] He also went on to say he didn’t know what was real and what wasn’t and that he “must have died on the weekend”. She tried to obtain some history of the sexual contact between him and the victim to try and explain the excoriation. Dr Van de Hoef said that Mr Terelinck said that there had been some genital contact in the week before it wasn’t clear what this involved. She was also able to get a family and medical history from him and he admitted to her that he had been convicted of fraud previously.

   [11]Transcript day 3 p 6 l 25.

   [12]Transcript day 3 p 6 ll 40-41.

1. Dr Van de Hoef considered that whilst what Mr Terelinck said was a little ‘odd’ and it was clear he was sleep deprived she “couldn’t find any other symptoms of neurovegetative disturbance that might fit in with either a depressive, manic or psychotic illness.”[13] She stated that:

“He talked about briefly, being felt – feeling that he had been trapped by his lover, but other than that I couldn’t find any evidence of delusional or persecutory thinking and so, after considering all that, I thought he was a young man that had a pretty robust history of significant personalities, a past history of binge alcohol abuse, a family history of Bipolar Affective Disorder, but one – an individual who was not acutely ill.”

[13]Transcript day 3 p 6 ll 56-58.

1. Dr Van de Hoef also stated:[14]

“I couldn’t elicit from him any history or any sign on examination of any other psychotic symptoms, such as passivity phenomenon, no delusions of reference. I didn’t think he was thought disordered. He denied any hallucinatory experiences ever. So I concluded that he was a young man who’d taken a serious poly drug overdose and had a period of delirium most likely that was now resolved.  There was no evidence on the history that he’d been intoxicated prior to that. I couldn’t find any persuasive evidence to my mind that he was psychotic...manic or clinically depressed. He was certainly fearful and distressed.”

[14]Transcript day 3 p 9 ll 11- 23.

1. Mr Terelinck told Dr Van de Hoef that he had a history of periodic binge alcohol abuse but that the last time he had a “few beers and rums, but wasn’t drunk, at Murphy’s Pub on the 11th of April 2008.” Dr Van de Hoef considered that whilst it was possible that the cessation of alcohol could cause “some sort of delirium” she did not believe that he was being treated for delirium tremens when she saw him. She also stated that he was a chronic or at least an acute suicide risk when she saw him.

1. Dr Van de Hoef was asked whether she considered that it was likely that “there was a brief psychotic episode that had partly or totally resolved by the time he was in hospital.” She replied:[15]

“Well, I didn’t think he was psychotic when I saw him. I thought he was under tremendous stress.
…
You wouldn’t put it in the more probable than not? – I would not.”

[15]Transcript day 3 p 10 ll 10- 28.

The evidence of the neighbours

1. The last time neighbour John Iddles saw the men was Thursday morning 10 April 2008.  He states that from Friday to Sunday morning the house looked empty but that the lights in both men’s bedrooms were on from Thursday night through to Saturday night. On Sunday morning 13 April he described speaking to Mr Terelinck who was sitting on the steps at the back door in his shorts.  Mr Iddles said he asked him if Mr McMillan was alright but that Mr Terelinck did not answer straight away but mumbled and eventually said he was a “little bit sick”.

1. Mrs Josephine Iddles states she last saw Mr McMillan on Friday morning and that she subsequently became concerned when he did not pick up either his Saturday morning paper or his Sunday morning paper.  She did not see Mr Terelinck on Friday or Saturday but saw him on Sunday morning when she stated he had scratch marks on his face and looked like he was “drunk”. The neighbours on the other side of Mr McMillan’s house however stated that they saw no lights on in the house on Friday and Saturday night.

1. In my view an analysis, of the field tapes, the record of interview and the witness statements of police and ambulance officers indicates that on the day of his arrest Mr Terelinck gave a reasonably consistent explanation of the events leading up to the killing which he could remember. I do not consider that the variations in the account of what occurred are significant and are within the normal range of variation. 

1. Mr Terelinck also gave a consistent recollection of relevant events to Dr Van de Hoef and the three reporting psychiatrists Drs Beech, Reddan and Sundin. Those recollections are set out in the various medical reports as summarised below. Much of the material in those reports is repetitive however I will refer to them in some detail because I consider that it is significant that Mr Terelinck gave such a consistent account of what had transpired on so many occasions. Accordingly it is necessary to actually set out what Mr Terelick actually told each psychiatrist.

Dr Beech’s Reports

1. Dr Michael Beech has expressed his opinion in a number of reports dated 11 January 2009, 26 June 2009 and 8 July 2010. He also gave oral evidence at the hearing. Dr Beech noted that there was a significant developmental history of impulsivity, learning problems and disruptive behaviour which was diagnosed as anxiety or attention deficit hyperactivity disorder. He stated that Mr Terelinck emerged from early adolescence as an unstable young man, prone to mood volatility, alcohol abuse and intense dysfunctional relationships. At times of great distress he has developed suicidal ideation and has attempted to harm himself. That has necessitated psychiatric assessments. However they have revealed no pervasive mood disorder or psychosis. Whilst a history of alcohol abuse was noted there was no history of significant illicit substances. There was a significant family history of maternal and sibling bipolar disorder. There was also a significant medical history of childhood EEG instability.

1. Dr Beech concluded that by early adulthood Mr Terelinck had developed a borderline personality disorder as evidenced by his mood instability, dysfunctional relationships, alcohol use and development of self harm ideation.

1. Dr Beech considered that Mr Terelinck gives an account of developing paranoid persecutory ideation, experiencing odd happenings occurring around him and hearing noises from outside the house before the killing. Dr Beech noted that Mr Terelinck believed that Mr McMillan was a special person, that religious matters were involved and that he was trapped. Dr Beech stated that he told him about his experiences at the Gold Coast and his developing fear. He also spoke about the fact that when they went to the hotel after Meals on Wheels “he saw his name written on the pool board in a slant but he got worried about that”.  He was also taking “abnormal inferences from discussions” that day and saw newspaper headlines change from good to bad.  Dr Beech said that Mr Terelinck “couldn’t understand these strange transitions; the range of odd things that he saw”. Dr Beech stated:[16]

“He heard noises and he thought that somehow the noises of cars going past meant, you know, were meant that, I think he was on a surveillance or people were meant to harm him.  It seems that as the night progressed there was a crescendo building up where he became very anxious about his safety, a concern that if he stepped outside he might be harmed.  That somehow Mr McMillan was God or the Devil or some, great religious figure and that he was concerned about his own safety and he told me that he rang Lifeline.  They said go to the neighbours.  Mr McMillan didn't want to do that and so he became further worried.  At some stage he told me it just came to his head to stab Mr McMillan.  Now, I can't, I could not get from him that it came as an auditory perceptual abnormality such as a command hallucination.  I can't - I couldn't get from him any clear idea that Mr McMillan represented a clear and immediate threat to him but certainly there was a notion that this is what he needed to do and he didn’t seem to think much beyond that he did it; went into the kitchen, got the knife, stabbed Mr McMillan and then I think put the knife back in the kitchen.”

[16]Transcript day 1 p 5 at ll 32-51.

1. Dr Beech considers that the description Mr Terelinck gave is consistent with the development of a psychosis with anxiety, loss of reality testing, as well as making false and strange connections and experiencing auditory perceptual abnormalities. He stated that the nature of those psychotic symptoms however was unclear.

1. Dr Beech considered there were three possibilities: the first is deliberate drug ingestion or epileptic phenomena. In support of that possibility is the fact that there was an abrupt onset and a quick resolution with no further indication of mental deterioration or psychosis. Dr Beech also noted the history of EEG abnormality.

1. He considered that the second possibility was that it was a brief psychotic episode which is sometimes seen in a severely personality disordered vulnerable person. Dr Beech stated that in keeping with this was the brief nature of the symptoms, the association with his partner who made unwanted sexual advances to him in the context of earlier childhood sexual abuse and an increasing sense of anxiety, danger and persecution in the company of Mr McMillan. Dr Beech stated that it is possible that Mr Terelinck developed brief psychotic symptoms as the intensity of the relationship with Mr McMillan increased during their stay at the Gold Coast.

1. He thought that the third possibility was that he developed a brief period of psychosis in the context of a severe mental illness such as bipolar disorder or schizophrenia which is supported by his significant family history. However, Dr Beech did not consider this was born out by any significant enduring mental illness or psychiatric assessment.

1. Dr Beech’s further report documented an interview with Mr Terelinck’s sister, Narelle Lee. Ms Lee indicated that his early childhood was very disrupted, particularly as she took over the care of Mr Terelinck when he was only several months old given his mother’s severe mental illness. She then cared for him until he was approximately 16 years of age. At the age of 16 he was admitted to hospital for two days when he tried to cut his wrists. At that time he disclosed that a family friend had been molesting him for money and had been doing this since the age of 14. Ms Lee said that she was aware that the man had been giving Mr Terelinck expensive gifts.

1. Mr Terelinck married briefly at the age of 18, but the marriage broke up after about two weeks. Ms Lee also stated that Mr Terelinck had longstanding paranoia from childhood. She confirmed that he did not take illicit substances and that he had never been violent to family members.

1. Dr Beech also summarised the Ipswich Hospital records in his report and noted that on 13 April Mr Terelinck had been seen by a consultant liaison psychiatrist. He gave a vague account of the events and mentioned feeling trapped. There is also a history given of heavy alcohol use and previous occasional use of Ecstasy.  The mental state examination indicated he had normal speech but that his mood was reduced and his affect was restricted and that the thought content included “the will of God”. The assessment was that Mr Terelinck appeared delirious. Dr Beech confirmed in his evidence that he thought a delirium was consistent with the ingestion of the drugs and occurred after the stabbing.

1. Dr Beech also referred to Ipswich Hospital records and particularly noted the assessment by Dr Van de Hoef who saw him on 14 April 2008 at 12.30pm. Dr Van de Hoef records Mr Terelinck advising her that he had moved in with Mr McMillan who he had met at the pub. He denied any conflict with him and he denied being on any medication or that he had used alcohol or drugs on the day of the offence. He told Dr Van de Hoef “Ian had come to him in God’s form and had forgiven his sins”. He told Dr Van de Hoef that he took the overdose after killing Ian and he recalled phoning Lifeline as he had done earlier, perhaps earlier that weekend when they had advised him to go next door to the neighbours for safety.

1. Dr Beech also considered Dr Van de Hoef notes which recorded that Mr Terelinck told the neighbours he had killed his boyfriend and he remembered being naked when the police arrived but could not say when he removed his clothes. Although he thought he was clothed when he killed Ian.  He stated in the lead up to the weekend he had had poor sleep. He stated he had had a few beers and rums on 11 April but had not used cannabis. He had used Ecstasy in the past but not for a long period of time. Dr Beech noted that when seen by Dr Van de Hoef, Mr Terelinck was not agitated but he was in discomfort from a painful scrotum and perineum. He was alert and oriented. He was irritable and at times belligerent although there was no evidence of formal thought disorder. Dr Beech observed that Dr Van de Hoef thought that Mr Terelinck was not obviously psychotic or depressed but noted long term personality traits of a borderline type and a past history of alcohol abuse. She could discern no ongoing delirium but questioned its presence on 12 and 13 April. She did not think intoxication was an issue.

1. In a further report dated 8 July 2010 Dr Beech reviewed the electroencephalographs which had been performed on 21 May 2010. Dr Beech also noted the onset of psychotic symptoms associated with a belief that his victim was a threat which was associated with significant anxiety and ideas of persecution. He noted that subsequent psychiatric assessment revealed no evidence of psychosis but continuing anxiety. He noted that he had raised the issue of whether the psychosis had an organic cause, in particular epilepsy. This was supported by the abrupt onset of symptoms and the quick resolution as well as the history of EEG abnormality.

1. Dr Beech confirmed that Mr Terelinck’s presentation is an unusual one and that the rather abrupt onset of symptoms and their resolution indicates the possibility of organic causes as well as the possibility of psychogenic ones. He considered that given the severity of the offence, the unusual presentation and the past history of an abnormal EEG and the current report of an abnormal EEG, it was his opinion that it would be important to exclude the possibility of some form of ictal phenomena. Dr Beech did not consider that the history is consistent with Mr Terelinck’s suffering an actual seizure during the killing, but rather, the purposeful nature of the events suggested to Dr Beech that Mr Terelinck may have suffered a postictal psychosis. Subsequent testing however seems to have ruled out that possibility.

1. In his evidence to the Court Dr Beech confirmed that he had come to a contrary view to Dr Van de Hoef and, on his reading of Dr Van de Hoef’s history and examination, considered that what Mr Terelinck described to Dr Van de Hoef was a resolving brief psychotic episode. 

1. Dr Beech explained a brief psychotic episode in the following way when asked to consider whether it could have been an offshoot of or product of his personality disorder:[17]

“I think – the brief psychotic episodes certainly I think are more likely to occur in people with severe personality disturbance.  I don't know if there's a direct link to the personality disturbance to the brief psychotic episodes, but they certainly seem to occur more commonly in personality disturbance. And so I think if you could see it as someone psychologically has limited resources, limited reserves so that they're, they're more likely to lose touch with reality if they are stressed than, than the average person. All people eventually can be stressed enough to develop psychotic symptoms.  You see that in interrogation techniques, solitary confinement, things like that.  You can stress people, everyone to the extent they become psychotic.  I think people with personality disturbance seem to break down, if I can use those terms, sooner and with less stress.  Mr Terelinck's case is a bit more complicated because there is a family history of severe mental           illness and so you might think that biologically he's also more vulnerable to breaking down and he has, there's evidence of some EEG abnormality and I guess more clearly an abnormality on his MRI brain scan which possibly indicates that he has an underlying propensity to break down in psychotic episodes because of that.  The only caveat to that is he doesn't seem to have done it before this incident and he doesn't seem to have done it since that incident ---”

[17]Transcript day 1 p 12 ll 30-55.

Dr Reddan’s Report

1. In a report dated 23 December 2009, Dr Jill Reddan confirmed the history which had been given to Dr Beech. In particular, she confirmed that Mr Terelinck had been living with Mr McMillan for a number of months. He also stated that he had been to the Gold Coast on the weekend of 5 and 6 April with friends and had a good time out drinking with them. He had then returned to the Gold Coast with Mr McMillan on 8 April as he had left his keys at the Coast. During that trip to the Coast he had stayed at Paradise Point and had gone to the Paradise Point Bowls Club for some beers and went to the Casino and a nightclub. However, at the Paradise Point Bowls Club which he returned to with Mr McMillan a number of strange things happened.

1. He stated that Mr McMillan kept disappearing and that he noticed the number 35 kept coming up and that he concluded Mr McMillan was the “Keno king”. He also stated that after they had dinner and a few drinks at the Paradise Point Bowls Club they went to board the courtesy bus but he felt a sudden overwhelming high and had feelings of euphoria. He concluded that a man on the bus had a bag with a gun in it and that the man was going to kill him. He therefore decided to walk back to the residence from the Club and during the trip he smashed his mobile phone. He stated that when he arrived back at the house, he broke down in tears and then he informed Mr McMillan about his life. He said that he obtained a saucepan and washed Mr McMillan’s feet and Mr McMillan reassured him that all the bad stuff he had done had been forgiven. He stated that Mr McMillan seemed to have a glow about him and a sparkle in his eye.

1. Mr Terelinck then said he had stayed up all night smoking cigarettes but was hesitant to go outside as he was frightened someone might shoot him. On the Thursday they drove back to Ipswich and he was convinced that a white Nissan Patrol vehicle was driving up quickly behind him as if to run him off the road. After their return to Ipswich he helped Mr McMillan at Meals on Wheels and then they went to the local hotel. However he noticed that his number was up on a board written in large letters. He also described experiences at the hotel as like being in a dream and he felt he might be dead. He stated that when he informed Mr McMillan of this, Mr McMillan told him to ring Lifeline, although he also thinks that it was possibly the bar maid who told him to ring Lifeline.

1. Mr Terelinck described then returning home to the address at North Ipswich and having a conversation with the next door neighbour about suicide. He also stated that he can recall sitting with Mr McMillan on the back patio and that he walked around after Mr McMillan got up and left and said that he found him sitting in the toilet in the backyard. He asked Mr McMillan if he was the Lord. When they returned to the house he noticed Mr McMillan had two newspapers. As Mr McMillan lifted one newspaper, he placed it on the ground. The headlines changed from reporting positive events to reporting negative events. He stated that Mr McMillan wrote down the Lifeline number for him. He stated he rang Lifeline but was hearing whistling noises outside. Mr McMillan had followed him into the bedroom and that whilst he was speaking Mr McMillan was shaking his head and nodding.

1. He stated that he was scared someone was going to kill him but he denied being angry with Mr McMillan. Mr Terelinck reported that he took a knife from the kitchen, walked into Mr McMillan’s bedroom and began stabbing. He stated it was night time but that he had not consumed any drugs or alcohol that day. He said he does not know why he stabbed Mr McMillan. He also stated that he could not explain how there were faeces in the toilet or on the walls and in Mr McMillan’s bedroom. Mr Terelinck could not describe why his testicles were swollen and inflamed and neither could he explain why there was uneaten food on the dinner table.

1. Dr Reddan stated that Mr Terelinck had no recollection of taking Mr McMillan’s drugs and he has no recollection of telephoning Lifeline again and informing the counsellor that his partner was dead and that he had stabbed him. Dr Reddan also outlined his very prejudicial childhood and indicated that Mr Terelinck minimised homosexual experiences but stated that the accompanying material indicates that he had on a number of occasions been involved in a low key way with prostitution or in relationships where sexual favours were exchanged for money or goods. Dr Reddan also reviewed accompanying material which supported the calls to Lifeline.

1. Dr Reddan also indicated that when he spoke to police initially at the scene he informed them that Mr McMillan had been “head fucking me” and that he thought Mr McMillan must have supplied him with some sort of drug whilst they were at the Gold Coast. He told police that he had been driven to the point of insanity. He also said that Mr McMillan “made me feel every emotion all at once”.

1. He also explained to police that he had been living with Mr McMillan for a number of months; that Mr McMillan spent money on him and bought him things as long as he could “play with me”. He stated to police that he had been trying to get Mr McMillan out of his head and that Mr McMillan made him feel as if “I didn’t know whether I needed to go and kill myself”. Mr Terelinck admitted to stabbing Mr McMillan on the bed and that Mr McMillan had tried to push him away. He had then washed the knife and returned it to the kitchen sink.

1. He admitted to police that there had been some sexual contact between them after they returned from the Gold Coast but that he did not know why his scrotum was inflamed. He did however inform a paramedic that the “old man” had been playing with his testicles.

1. Dr Reddan also considered that Mr Terelinck as a child met a criteria for a diagnosis of conduct disorder and of attention deficit/hyperactivity disorder (DSM-IV). She also stated that as time went on he developed a personality disorder not otherwise specified with borderline and antisocial traits.

1. Dr Reddan stated that although the concept of personality disorder is a vexed one, it was the best way of conceptualising Mr Terelinck’s affective instability, identity diffusion (which is manifested in part by some sexual identity confusion), willingness to exploit others, impulsivity, lack of capacity for attachment to others and poor capacity for empathy. Dr Reddan considered he did not have a well developed conscience and that his coping skills were poor.

1. Dr Reddan noted that there is much about the killing which remains unclear. She inferred from the material that Mr McMillan probably died prior to when Mr Terelinck reported he had killed him. Dr Reddan also noted that the exact events leading up to the killing are unclear. To Dr Reddan, Mr Terelinck’s earlier statements and the crime scene suggest that it is possible that the killing occurred during some intense sexual encounter or perhaps shortly after. Dr Reddan considered it is possible that Mr Terelinck took the overdose earlier than he stated and that this could account for his confused memory.

1. Dr Reddan thought it seemed clear that Mr Terelinck’s mental state change occurred suddenly and also rather abruptly ended. She considered that Mr Terelinck’s behaviour and his description of his mental state subsequently is consistent with the development of a Brief Psychotic Disorder without marked stresses.

1. Alternatively, Dr Reddan states that as a result of the drug overdose Mr Terelinck could have developed a delirium and that his subsequent accounts of his mental state represents confabulation or a confused account and timeline of events. Dr Reddan notes that it is significant that the three psychiatrists who interviewed Mr Terelinck noted no clear objective signs of a psychosis.

1. Accordingly Dr Reddan considered that whatever mental state he was in after the murder it resolved rapidly. Dr Reddan stated that pre-existing personality disorders, particularly on the borderline spectrum, seem to predispose some individuals to the development of brief psychoses which are sometimes referred to as reactive psychoses.

1. Dr Reddan stated that in Mr Terelinck’s case there is no evidence of any objectively severe psychosocial stressors. However it is possible that some intense emotional and/or sexual encounter was the precipitant to the murder in a person predisposed such as Mr Terelinck.

1. Dr Reddan stated that Mr Terelinck may have killed Mr McMillan as a result of a brief psychosis or during a delirium, but the exact reason why he killed Mr McMillan remains elusive. Dr Reddan acknowledged that the overdose of medication makes it difficult to determine Mr Terelinck’s state of mind at the time of the killing.

1. Initially, Dr Reddan considered that it was unclear whether he was deprived of one of the capacities set out in s 27 of the Criminal Code 1899 (Qld) or whether he had a substantial impairment of one of the capacities specified in s 304A of the Code.

1. Ultimately in her evidence to the Court Dr Reddan’s view was that on the balance of probabilities, Mr Terelinck was deprived of one of the relevant capacities due to a brief psychotic episode.  Dr Reddan does not consider there is a dispute of facts.

Dr Sundin’s Report

1. In a report dated 27 April 2010 Dr Josephine Sundin also confirmed the history given by Mr Terelinck about his early childhood which had been extremely prejudicial. The report also confirmed the history that Mr Terelinck had begun living with Mr McMillan some months prior to the killing. He stated that initially he would pay $100 per week board and that he initially paid that rent regularly but then began to struggle. Mr Terelinck told Dr Sundin that in the last two months they were living together Mr McMillan made a more explicit offer of financial support in return for sexual favours. He explained that these sexual favours included genital fondling and cuddling but nothing more intense than that. He denied that fellatio took place or that anal penetration was part of the liaison.

1. Mr Terelinck told Dr Sundin that things had progressed harmoniously until they went to Paradise Point to collect his car keys. During this trip Mr McMillan told him he was a millionaire and that they went to the Bowls Club on the first night and then Mr Terelinck went to the Casino where he became intoxicated. The next morning Mr McMillan once again repeated the offer of providing regular financial support in return for more regularised sexual activity.

1. The second evening they went once again to the Bowls Club for dinner during which time Mr Terelinck claimed that a number of odd events occurred. They included Mr McMillan disappearing. He also stated to Dr Sundin that when they were ready to go home on the courtesy bus he felt odd and high. He also stated that during the evening he became concerned by the Keno number 35 continually coming up. He wondered if Mr McMillan was the “king of Keno” and as the evening wore on he became increasingly fearful of Mr McMillan for reasons he could not entirely understand. He then also developed a spontaneous fear that a stranger had a gun in his pocket and was going to kill him. He also told Dr Sundin that by the time they returned to the home he was feeling distressed and broke down crying to Mr McMillan, telling him about all the bad things he had done.

1. He then described driving home and working at Meals on Wheels with Mr McMillan. They then went to the pub and various things happened at the hotel which were perplexing to him. He also stated he asked Mr McMillan if he was dead. Dr Sundin noted that Mr Terelinck explained that he was concerned that the spirit of the Lord was inhabiting Mr McMillan and that when they got home that evening he continued to have concerns about religious interference with Mr McMillan.

1. Mr Terelinck stated that Mr McMillan went to bed that night and that he remembers wandering around the house going into the kitchen and grabbing a knife out of the knife block. He then remembers going to the bedroom and proceeding to stab him at which time he then took all his prescription pills and then said he rang Lifeline and told him that he killed Ian. In relation to what his thoughts were he explained to Dr Sundin:

“It was nothing. It was absolutely clear. There was no thought. It just happened. It was unreal. It was like watching a movie. It wasn’t real but it was. It was like someone had taken over my being; whether it be the devil or God or a spirit; whether I’d had my drink spiked”.

1. Mr Terelinck was unable to explain the genital bruising or excoriation. He reiterated that he had not drunk at the pub that afternoon or consumed alcohol during the day. Dr Sundin considered that alcohol was significant in Mr Terelinck’s history and that in the two months prior to these offences he had been consuming 24 spirit drinks a day, commencing at around 10am or 11am and then drinking continuously into the evening.

1. In relation to the potential diagnoses Dr Sundin offers several different options. One is in the context of his borderline personality disorder. Dr Sundin suggests that Mr Terelinck, under the stress of Mr McMillan’s increasing demands for a sexually reciprocal relationship and against the background of childhood and adolescent sexual abuse, psychologically decompensated. She considers he may have had a brief psychotic episode during the course of which he perceived Mr McMillan to have become his persecutor. As a result of that belief he then attacked and stabbed him. Whilst Mr Terelinck denies it, Dr Sundin does not exclude the possibility that the killing may have occurred during or immediately after an intense sexual encounter between the two men, noting that this scenario is confirmed by the trauma to Mr Terelinck’s genitals.

1. An alternative diagnosis in a context of borderline personality disorder and in a setting of regression is that Mr Terelinck may have taken the overdose of medication prior to attacking Mr McMillan and did so in a state of delirium. Dr Sundin considered this is a possible explanation but less likely given Mr Terelinck’s description of the 48 hours of preceding paranoid and religiose delusions pertaining to Mr McMillan.

1. The third potential diagnosis Dr Sundin considers is that he may have developed a substance induced psychotic disorder with prominent delusions as a consequence of his excessive and prolonged alcohol abuse over the previous two months with the psychotic disorder onsetting during the one to two days withdrawal. Dr Sundin stated that this diagnosis is suggested given the intensity of the psychotic symptoms were much more severe than those usually described in an alcohol induced withdrawal state.

1. Additionally, Dr Sundin considers that in an alcohol withdrawal state tactile and visual hallucinations are more commonly described than the religiose and paranoid delusions reported by Mr Terelinck. In support of this possible diagnosis, Dr Sundin noted Mr Terelinck’s lack of any preceding history of any other psychotic episodes and the relatively rapid resolution of the psychotic symptoms in the days after his admission to hospital.

1. Dr Sundin was unsure of which diagnosis provided the best account for Mr Terelinck’s mental state, however she considered it most likely that Mr Terelinck suffered either a brief psychotic episode in the context of a severe borderline personality disorder or a substance induced psychotic disorder with prominent delusions onsetting during alcohol withdrawal.

The advice of the assisting psychiatrists

1. Dr McVie stated that she had some difficulty in relation to the evidence about Mr Terelinck’s mental state at the time of the offence as well as difficulty with the facts in general.  Dr McVie also considered that the uncertainty surrounding the time of death posed significant difficulties, as did the uncertain timing of the overdose. Accordingly she found it difficult to attribute a mental state to the incident, particularly where Mr Terelinck’s mental state reportedly changed significantly over a short period.

1. In this regard Dr McVie also noted that there could have been more than one overdose and that the exact mixture of the tablets and quantity of tablets was unknown. Dr Mc Vie also referred to the uncertainty regarding the relationship with Mr McMillan.

1. Dr McVie referred to the consistent psychiatric assessment of borderline personality disorder and a history of severe alcohol abuse, but commented that there was no previous diagnosis of any psychotic disorder or a psychotic episode and no recurrence of the psychosis since the killing.  Dr McVie considered that the calls to Lifeline were indicative of emotional distress and not necessarily psychosis.

1. In terms of the drugs that were known to have been ingested by Mr Terelinck, Dr McVie referred to Alprazolam, Amitriptyline and Prednisone and stated that Alprazolam is a benzodiazepine which can cause confusion and delirium. Dr McVie considered that it would have had a significant effect on Mr Terelinck’s thinking and could have caused “patchy retrograde amnesia”.

1. Dr McVie noted:[18]

“Drs Reddan, Sundin and Beech in oral evidence all gave the opinion that Mr Terelinck did suffer with a psychotic episode at the time of the killing. The general consensus appeared to be that this most likely had arisen out of   his Borderline Personality Disorder in the context of stress in some way being related to the sexual nature of the relationship or a change in the sexual nature of the relationship.”

[18]Transcript day 5 p 30 at ll 35-42.

1. However Dr McVie commented that none of the psychiatrists actually clinically observed any definite psychotic symptoms, and that while it was theoretically possible to develop a psychosis severe enough to deprive a person of capacity, it is very unusual for it to spontaneously resolve within 48 hours. Dr McVie noted that most cases of brief psychotic episodes are “substance related”. Dr McVie agreed with Dr Van de Hoef that one would expect that if stress triggered the episode in a vulnerable young person such as Mr Terelinck then that psychosis would have been present when Dr Van de Hoef interviewed him.

1. Dr McVie concluded:[19]

   [19]Transcript day 5 p 33 at ll 10-38.

“Overall, my advice is that the facts in relation to this man's mental state at the time of the killing are not clear.  The diagnosis of brief psychotic episode seems to be made retrospectively and solely on Mr Terelinck's self-        report.  It's based on his accounts of his reported thoughts in the 48 hours prior to the killing.  This account may well have been reconstructed, no necessarily deliberately, but possibly due to the effects of the overdose of Alprazolam.

It's impossible to test the quality of his thoughts in the lead-up to the killing, whether the thoughts were really fixed and unshakable or simply his attempts to describe a period of stress-induced dissociation.  They may have been merely fleeting ideas or odd experiences which he recalled and now has fixed in his memory in an attempt to explain his own actions at the time of the killing, which are not clear to him because of the effects of the Alprazolam overdose.

Any psychosis, if it was indeed present, would have emanated from his borderline personality disorder.  It's not clear to my mind that a micropsychosis, as described, would constitute a mental disease, but it certainly could qualify as an abnormality of mind.

Overall, on balance of probabilities, I would advise that it's highly unlikely Mr Terelinck developed a psychosis of sufficient severity as to deprive him of capacity, and then that psychosis resolved spontaneously, all within three to four days.

If he did indeed have a psychosis emanating from his borderline personality disorder, I would advise that this is unlikely to be a true, serious, severe            psychosis and it would be unlikely to have deprived him of capacity.  It could be viewed as an abnormality of mind.  It's not clear to me whether it would have substantially impaired his capacities, as the actual thinking at the time of the killing is not known.”

1. Dr Lawrence also had similar concerns about the fact that certain aspects of the evidence were simply unknown. Dr Lawrence noted the history of his arrest and his assessments since that time and his relatively stable condition in prison. She stated that Dr Scott’s report of 17 April 2008 should not be taken into account as it was based on an inaccurate interpretation of Dr Van de Hoef’s notes. 

1. Dr Lawrence noted that the three reporting psychiatrists had access to a large amount of material including Mr Terelinck’s past medical history, and the police material including the transcripts of interview and the witness statements.  She also noted that further assessments were undertaken including an MRI, without any real resolution of the matters which were in doubt.

1. Dr Lawrence concluded that there is little doubt that Mr Terelinck has a significant personality disorder of predominantly borderline personality type with additional features consistent with “a general classification of cluster b personality traits.” She also noted a strong family history of psychosis and of suicide.  Dr Lawrence also noted that much depends on Mr Terelinck’s self reports and that there is little corroborative evidence.  Her view was that Mr Terelinck had been an unreliable historian at times and that whilst there were inconsistencies in his reports there were “persistent themes in the story”[20] as previously noted.  Dr Lawrence also agreed that Alprazolam causes interference with memory and if taken over a longer period could have contributed to disturbance of memory earlier in the week.

   [20]Transcript day 5 p 37.

1. Dr Lawrence noted the conclusions of the three reporting psychiatrists and the fact that despite acknowledging the uncertainties and unknowns, they all considered Mr Terelinck was of unsound mind at the time.  Dr Lawrence’s advice was in the following terms:[21]

   [21]Transcript day 5 p 39.        

“Now, on clinical grounds, I would have to advise that I cannot accept that ultimate opinion of the three psychiatrists.  It is my view from the evidence that has been put before the Court in various ways that there are many inconsistencies, many unknowns and uncertainties and the fact upon which the assessing psychiatrists have based their opinion, by their own admission, rely entirely on unknowns or a significant degree of possibility.

In particular, the unknowns as to the actual chronology in terms of drug ingestion or withdrawal, the nature and types of the substances which have been used, both long-term and short-term, the quantities of those       substances, the effect of those substances at relevant times and, of course, the timing of the death are all extremely relevant to the issue of David Terelinck's mental state at the time of the killing of Ian MacMillan.

There's no dispute as to the fact that David Terelinck killed Mr MacMillan by stabbing but there is such a plethora of uncertainty about details surrounding the timing, the chronology, the motivation, issues of intoxication, delirium as opposed to psychosis, intentional versus unintentional consumption of substances that I would have to advise that in my opinion it would be unsafe to form a conclusion as to David Terelinck's mental state at the time and, thus, the whole issue of whether or not he has a defence on the basis of mental illness or an abnormality of mind is in doubt.

I could add that - personally, I could add some more hypothesis to speculate upon but I think that is not my role but it also just highlights the enormous number of uncertainties and unknowns and I believe that the          facts on which the psychiatrists have based their opinion, therefore, has to be thrown into some doubt.

At the present time, David Terelinck has been in a controlled, contained environment for three years.  He has been receiving psychiatric treatment and supervision during this period of time and has apparently benefited from it.  There are no concerns about his mental health needs at the present time and, indeed, his current treating psychiatrist has indicated that it was   anticipated that the medication he'd been receiving would be reduced significantly once the stress of the Court hearings were completed.

That is to say that there's been no evidence or suggestion either prior to this killing or after and since the killing, in spite of the enormous number of stressors to which this man would've been exposed in those period of time, there has been no evidence whatsoever to support that he's ever decompensated as a result of his personality disorder into a state of      psychosis at any other time. One has to wonder what was the particular stress that led to the decompensation at that particular incident in time.”

The Issues

1. This Court’s task is to determine whether the defendant was of unsound mind at the time of the killing. If it finds he was not of unsound mind in relation to the charge of murder, then it must determine whether he was of diminished responsibility.

1. “Unsound mind” is defined in schedule 2 to the Mental Health Act 2000 (Qld) (the Act) in the following way –

“‘unsound mind’ means 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 Code 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.”

“Diminished responsibility” is defined in schedule 2 to the Act –

“the state of abnormality of mind described in the Criminal Code, section 304A”.

Section 304A of the Code 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.
(3) When 2 or more persons unlawfully kill another, the fact that 1 of such persons is by virtue of this section guilty of manslaughter only shall not affect the question whether the unlawful killing amounted to murder in the case of any other such person or persons.”

1. Thus the deprivation of one of the cognitive capacities, namely the capacity to understand what one is doing and the capacity to know that what one is doing is wrong or of the volitional capacity namely the capacity to control one’s actions caused by a disease of the mind is the essential ingredient for a finding of unsoundness of mind.

1. The substantial impairment of one of those capacities caused by abnormality of mind is the essential ingredient for a finding of diminished responsibility.

Intoxication

1. There is no evidence to indicate that intoxication with alcohol was operating at the time of the stabbing.

1. Similarly there is no evidence to indicate with any certainty that Mr Terelinck was intoxicated by cannabis, amphetamines, ecstasy or other illicit drugs at the time. 

1. In terms of whether Mr Terelinck was intoxicated with prescription drugs I agree with the submission of Counsel for Mr Terelinck that the preponderance of evidence is that he very probably took the overdose after the killing.  There is in fact no objective evidence to indicate that Mr Terelinck’s mind was affected by the deliberate ingestion of Mr McMillan’s prescription drugs prior to the stabbing although it remains a possibility. It is most likely, as Mr Terelinck himself states and as most psychiatrists postulate, that the overdose occurred after the stabbing.

1. Accordingly, I do not consider that there is evidence of deliberate intoxication prior to the commission of the alleged offence.

Dispute of Facts

1. Is there a dispute of facts?

1. Section 269 of the Act provides as follows:

“269 Dispute relating to substantially material fact

(1)The Mental Health Court must not make a decision under section 267(1)(a) or (b) if the court is satisfied a fact that is substantially material to the opinion of an expert witness is soin dispute it would be unsafe to make the decision.

(2)       Without limiting subsection (1), a substantially material fact
             may be –

(a) something that happened before, at the same time as, or after the alleged offence was committed; or

(b) something about the person’s past or present medical or psychiatric treatment.”

1. There is no doubt that there are many uncertainties in the evidence.  There is much that is simply not known. The lead up to the stabbing, the motivation for the stabbing, the time of the stabbing, the time of the overdose as well as the actual quantity and combinations of drugs are simply not known.

1. Similarly, much of the evidence of Mr Terelinck’s state of mind in the lead up to the killing is his self report of what he was seeing, hearing and believing during those days.  There is a real issue as to whether Mr Terelinck’s description of his state of mind, whilst at the Gold Coast and after his return to Ipswich during the period from 8 April to 13 April 2008, is an accurate representation of his actual state of mind at the time.  In simple terms, is Mr Terelinck’s self description of his mental state over the days from 8 April to 13 April 2008 an accurate recollection of his developing state of mind in that time or is it a reconstruction of events viewed through the cloud of a drug overdose?

1. Is his recollection in fact a reconstruction?  It may not even be a deliberate reconstruction but rather it could simply be Mr Terelinck’s memory is not accurate because it has been genuinely affected by his overdose of Mr McMillan’s prescription drugs.  Complicating this question is the fact that whilst the type of drugs he overdosed on is known, the quantities in which they were taken are not known. Was Mr Terelinck’s description of events a result of delirium? 

1. In this regard I am persuaded by Dr Beech’s view that even with a delirium present the odd statements Mr Terelinck made are not usual for a delirium. He stated:

“You know, you might be disoriented.  You might see strange things or hear strange things, but usually if you've got a delirium they are gross abnormal perceptions.  You might hear chains rattling or maybe your name being called, but he describes a much more I feel like schizophrenic-type psychotic beliefs. You know, there's a paranoia there about religious themes which goes beyond what I would think if you'd just taken a whole bunch of pills and had now become delirious.  It seems to me more than an organic delirious cause of psychosis that he's even describing to Dr Van de Hoef.  And when he saw Dr Van de Hoef that was the day after - this is on the 14th.  So by then I would have thought that anything he had taken on the 13th would have cleared and she doesn't comment that she believed that he was cognitively disturbed.  She was just getting strange talk from him about strange matters.”

1. Can the court be confident that the state of mind as described was actually present?  Dr Beech clearly considers the court can be so satisfied because an overdose of the particular combination of drugs would not have affected his memory of events for the period of time which was days prior to the overdose. This is also endorsed by Dr Van de Hoef who considered that his memory of events days prior should not have been affected even if the delirium was present on 13 April 2008.

1. Ultimately I consider that there is sufficient certainty about Mr Terelinck’s self report of his mental state upon which to come to a conclusion, on the balance of probabilities, about his mental state at the time of the stabbing.

1. In this regard I consider that it is significant that there has been a consistent version of events and a consistent description of his state of mind in the lead up to the stabbing. This consistency was apparent whilst he was affected by delirium as well as after the delirium resolved. As I have indicated the inconsistencies referred to by the Crown which relate to the extent of his sexual relationship and his memory of events on the night are not significant in my view. Significantly he does not try and bolster his case or improve his image. He admits to the heavy drinking and to his previous fraud conviction. He does not rely on his injuries to try to argue self-defence or provocation.  He tries to convince police he is not insane rather than trying to rely on his mental state.

1. I think it is also significant that nothing Mr Terelinck said, which has been checked, has been found to be inaccurate. His movements in the days leading up to the offence were checked and found to be accurate. He did go to the Gold Coast as verified by Mr McMillan’s brother. They worked at Meals on Wheels and then went to the pub afterwards. The nature of his meeting and his subsequent relationship with Mr McMillan, the amount he drank, as well as his childhood are all verified. He said he rang Lifeline on Thursday night and over the weekend and those calls are all verified. There is simply no objective evidence which contradicts his account in any way.

1. Furthermore, Mr Terelinck rang Lifeline three times on Thursday night over a short period of time and the calls were of increasing duration. He was given the advice to go next door but says Mr McMillan refused to go. There is therefore verification of his statement that he was concerned about his safety and fearful. The advice he says he was given also has a ring of truth to it and is not something a person is likely to make up. I consider that there is therefore objective evidence that he was at least in a state of some distress about his safety on Thursday night, at a point in time before there is any suggestion he took an overdose.

1. There is also evidence that Mr McMillan was alive on Friday, 11 April as he was seen by Josephine Iddles.  Furthermore, the paper was brought in that day as usual, but remained outside on Saturday, 12 and Sunday, 13 April. Accordingly, Mr Terelinck’s calls to Lifeline had to predate Mr McMillan’s death.  I consider the calls to Lifeline to be a significant factor in supporting Mr Terelinck’s version of events and as his counsel submitted there was no history of him having prior contact with Lifeline.

1. Accordingly whilst there are clear gaps in the evidence as well as other uncertainties there is in fact a body of evidence which is clear.  Accordingly I do not consider that there is a dispute of facts and I do not consider therefore that this Court is constrained by s 269 from proceeding to determine the reference.

1. Is there insufficient evidence upon which to determine the reference?

Was Mr Terelinck of unsound mind?

1. The assisting psychiatrists consider that there is insufficient material upon which to come to a conclusion that Mr Terelinck was of unsound mind on the balance of probabilities.

1. The Crown also argues that there is not sufficient evidence for the Court to be satisfied to the requisite standard that Mr Terelinck was suffering from a disease of the mind or that he was deprived of one of the relevant capacities. The Crown in particular argues that the factual uncertainties including when the victim died, the events leading up to the killing, the cause of the scrotal excoriation and when the overdose occurred make it unsafe to be satisfied on the balance of probabilities.

1. Counsel for the Crown also submits that there are inconsistencies in the evidence particularly with respect to the exact nature of the relationship between Mr Terelinck and Mr McMillan because at times Mr Terelinck has minimised the relationship. The Crown also submits that there is an inconsistency about Mr Terelinck’s memory of the stabbing as he told Dr Reddan that Mr McMillan had followed him into the bedroom but he told other reporting psychiatrists that he had been asleep then woke up and committed the offence. It is argued that it is hard to determine Mr Terelinck’s state of mind when it’s not known how the offence occurred. The third inconsistency relates, the Crown says, to the events at the Gold Coast and whether there was an escalation in the relationship at that point in time.

1. The Crown also submits that there is significance in the fact that there have been no psychotic episodes since the offence particularly when one considers Dr Van de Hoef’s evidence about the stress Mr Terelick was under when she saw him at the Ipswich Hospital. Counsel for the Crown also referred to the white matter changes in the MRI which is most commonly due to previous drug use and submitted that this puts into doubt the possibility that there was ingestion of substances and this accordingly adds to the uncertainties.

1. The Crown also points to the uncertainties in relation to the use of alcohol as well as his cessation of drinking and the role that could have played in a possible psychosis. Counsel also referred to the issue of retrograde amnesia and the role of Alprazolam and argued that this also added to the uncertainties.

1. Counsel for the Crown also submitted that, whilst the three reporting psychiatrists all stated that they were satisfied on the balance of probabilities that there was a brief psychotic episode, when each of their reports or evidence is analysed Counsel submitted that there are still areas of doubt expressed.

1. The Crown also submitted that, even if there was sufficient evidence that Mr Terelinck was suffering from a disease of the mind, there was insufficient evidence to indicate that he was deprived on any of the relevant capacities.

1. Section 405 of the Act clearly provides that a matter to be decided by the Mental Health Court is to be decided on the balance of probabilities.  Ultimately I agree with the submission of Counsel for Mr Terelinck that that standard of proof “leaves room for doubt”. I also agree with the views of Fryberg J (with whom Williams JA agreed) in McDermott v The Director of Mental Health; ex parte A-G (QLD)[22] as follows:

“... that proceedings in the Court are not intended to be a substitute for a criminal trial. On the other hand, because the alleged offender can challenge a finding of unsoundness of mind by requiring a trial before a jury, there is no reason to qualify the standard of proof by regarding the proceeding as being at the grave end of the Bringinshaw principle. The plain words of s 405 should therefore be given effect. The Court should proceed to a finding if it is able to do so on the balance of probabilities, except in the circumstances set out in ss 268 and 269 of the Act.”

[22][2007] QCA 51 at [84].

1. Dr Beech, Dr Sundin and Dr Reddan all consider that, irrespective of the uncertainties in the evidence, there is sufficient material upon which they could be satisfied on the balance of probabilities that Mr Terelinck was suffering from a brief psychotic episode at the time of the commission of the offence and that he was deprived of the capacity to know he ought not do the act. All were aware of Dr Van de Hoef’s contrary view and all held fast to their views.

1. Whilst I acknowledge the helpful advice of the assisting psychiatrists which has been of great benefit to me in my task of weighing the evidence, ultimately I am persuaded by the views of the three reporting psychiatrists Drs Beech, Sundin and Reddan.  They are all experienced forensic psychiatrists who prepared thorough, thoughtful and detailed reports.

1. It is of significance to me that all reporting psychiatrists were fully acquainted with all the material and had all the relevant material at the time they interviewed Mr Terelinck. All the reporting psychiatrists interviewed Mr Terelinck for several hours and all prepared lengthy reports after a full consideration of both their interview with him and of the evidence. All the reporting psychiatrists accepted that Mr Terelinck’s account was true. The reporting psychiatrists all had the opportunity to directly question and observe Mr Terelinck over a long period, and had a distinct advantage in assessing his credibility over Dr Van de Hoef, who saw him for a relatively short period, without the benefit of the statements of all the witnesses. Significantly the assisting psychiatrists did not have this opportunity at all. I must accordingly take those factors into account and accordingly when there is such a disparity of views as there is in this case I must place particular significance on the reports of the reporting psychiatrists.

1. Furthermore, Dr Beech ultimately concluded that, despite Dr Van de Hoef’s clear view that Mr Terelinck was not psychotic, it was his view that there was indeed evidence that he was experiencing a resolving brief psychotic episode.  His conclusion was based on a very clear reading and understanding of Dr Van de Hoef’s opinion but he clearly came to a different conclusion after an analysis of all of the other collateral material.  Dr Beech indicated that he was surprised that Dr Van de Hoef, whilst acknowledging that Mr Terelinck had strange things to say about Mr McMillan and about his concerns about his safety, “couldn't though pin down any clear psychotic detail”.  In this regard he responded to counsel for the Director of Mental Health as follows:

“Did that surprise you?‑‑ Well, it - yes, when I spoke with Mr Terelinck, when I read the material it seemed to me to be a reasonably consistent, credible account of the sudden onset and rapid progression of a psychosis.  I see that as symptoms, you know, that the odd beliefs, becoming delusional, certainly making lots of I think delusional inferences about what's going on around him; a sense of confusion and anxiety and paranoia from that and yet perhaps two days later there's some odd things still going on but nothing that points to a [indistinct] psychotic process.  So you've got this very discrete, relatively short, well short-lived period of psychosis which is quickly waning within the hospital setting.  So, I mean, it concerns me because given his family history, the mental illness on his mother's side, given his own adolescent history of affective disturbance the thought would          be that in fact that this is, you know, the sudden onset of a severe mood disorder such as bipolar disorder, possibly the sudden onset of a         schizophrenic illness to be, but is quickly resolved.  So then you have to  consider the causes of a relatively brief psychosis in a young man.”

1. Dr Beech’s conclusion was that what Mr Terelinck described was a resolving psychotic episode, this is supported by Drs Reddan and Sundin.  He also stated that that is how he read Dr Van de Hoef’s history and her examination. Drs Sundin and Reddan also confirmed that they had reached the same conclusion based on Dr Van de Hoef’s notes.

1. There are uncertainties, and clearly I would not be satisfied beyond reasonable doubt that Mr Terelinck at the time of the stabbing was of unsound mind.  However having considered all of the evidence I am satisfied on the balance of probabilities that he was and I agree with the views of the three reporting psychiatrists.

1. Accordingly I consider that Mr Terelinck was of unsound mind at the time of the stabbing due to a brief psychotic episode which deprived him of the capacity to know he ought not due the act.

1. A forensic order is clearly required and will be in the terms of the draft submitted by the Director of Mental Health.

1. I will also make a direction pursuant to s 292 of the Act.