Re TM

[2009] QMHC 2

MENTAL HEALTH COURT

CITATION:

Re TM [2009] QMHC 2

PARTIES:

REFERENCE BY THE LEGAL REPRESENTATIVE IN RESPECT OF TM

PROCEEDING:

No 162 of 2008

DELIVERED ON:

11 March 2009

DELIVERED AT:

Brisbane [Ex tempore]

HEARING DATE:

11 March 2009

JUDGE:

Dutney J

ASSISTING
 PSYCHIATRISTS:

Dr J Lawrence
Dr E McVie

FINDINGS AND ORDER:

1.       I am satisfied that the defendant was of unsound mind at the time of the commission of the offence.

2.       I am satisfied that a forensic order should be made and, accordingly, I order that the defendant be detained to the Redcliffe Caboolture Authorised Mental Health Service, and I approve limited community treatment to commence immediately at the discretion of the authorised psychiatrist on the conditions set out in the submission from the defendant's legal representative lodged with the Mental Health Court on the 6th of March 2009, my copy of which I have signed and placed with the papers.

3.       I order that a copy of the reports, the transcript of the evidence and the decision be given to the treating team.

CATCHWORDS:

MENTAL HEALTH – DECLARATION OR FINDING OF MENTAL ILLNESS OR INCAPACITY – where defendant charged with attempted murder – where both psychiatrists are of the opinion that defendant presently unfit for trial – whether a forensic order should be made

COUNSEL:

Mr B G Devereaux SC for the Defendant
Mr J Tate for the Director of Mental Health
Mr S Vasta for the Director of Public Prosecutions (Qld)

SOLICITORS:

Legal Aid Queensland for the defendant
Crown Law for the Director of Mental Health
The Director of Public Prosecutions (Qld)

1. DUTNEY J:  The defendant is charged with one count of attempted murder.  The charge relates to an incident on the evening of Saturday, the 6th of October 2007.

1. The defendant was found semi-conscious by the side of the road not far from the Maroochy River bridge with her five year old son.  She had been pushing her son in a pram, presumably towards the bridge, and had a suicide note addressed to her older child, then aged 12 years.

1. She also had an empty wine bottle, a half full bourbon bottle, an empty bottle of diazepam and other prescription tablets and other medications.

1. The child indicated that he had been given a small quantity of medication but the medication he had been given was not sufficient to cause him any particular distress or engender a need for any treatment.

1. The suicide note made it plain that the expressed intention of the defendant was to drown herself and her child and the medication was intended as an aid to that end.

1. Three psychiatrists have assessed the defendant for the purpose of furnishing reports to this Court.  All of them have agreed that the defendant suffered from a major depressive disorder overlying a personality disorder.

1. There was some divergence of opinion as to whether or not the major depressive disorder also had mood-congruent psychotic features and, at the end of the day, I am not satisfied that that makes any real difference in this case.

1. The major point of disagreement between Dr Reddan on the one hand and Drs van der Hoef and Sundin on the other hand was as to whether or not at the time of the commission of the offence the defendant was deprived of the capacity to know she ought not do the relevant act or whether her capacity to know that she ought not do the act was merely significantly or severely impaired.  The disagreement is as narrow as that.

1. The basis of Dr Reddan's dissenting opinion appears to rely upon what she considered to be indications that the defendant did not, in fact, intend to go through with the killing of the child.  In particular, Dr Reddan was influenced by statements to her from the defendant that as she was walking along the river she was praying to God and praying that something would happen or that someone would see them both and help them and also, and perhaps more significantly, on the minimal quantity of drugs that were provided to the child and the defendant's perception, even at the time, that the child was not in any significant way being sedated by the medication he had been given.

1. The assessment of those facts by Dr van der Hoef and Dr Sundin was not such as to create, in their minds at least, any difficulty with accepting that, in fact, the intention was to kill both herself and her child and that the offence, in the absence of a defence of unsoundness of mind, was made out.

1. From my point of view, I prefer the conclusion that the existence of a hope of some sort of divine intervention was not such as to have led the defendant to believe she had any actual option but to go through with her plan and that therefore she did intend to kill both herself and the child and that that intention was driven by her perception of her own and the child's position.

1. The child was, on the evidence, a difficult child and the defendant perceived that the child was rejected and, apart from her own affection for the child, alone and abandoned and that the only option was to kill the child and that she had to go with the child.

1. In those circumstances, I accept the opinion expressed by Dr van der Hoef and Dr Sundin that the defendant was, in fact, deprived of the capacity to know that she ought not do the act because she was deprived of the capacity to appreciate there was any alternative to carrying out what she had planned to do.

1. Such a conclusion is consistent with the advice which I have received.  On the basis that I have outlined, I am satisfied that the defendant was of unsound mind at the time of the commission of the offence.

1. A question arises as to whether or not a forensic order ought to be made in this case.  I am satisfied, for the reasons expressed by Dr van der Hoef when asked this question, that a forensic order should be made and, accordingly, I propose to order that the defendant be detained to the Redcliffe Caboolture Authorised Mental Health Service, and I approve limited community treatment to commence immediately at the discretion of the authorised psychiatrist on the conditions set out in the submission from the defendant's legal representative lodged with the Mental Health Court on the 6th of March 2009, my copy of which I have signed and placed with the papers.

1. I should note that in relation to this particular offence, as a result no doubt of the quantity of drugs and alcohol she herself had consumed, no harm at all was done to the child and the outcome has not been, on the evidence before me, disadvantageous to the child.

1. The consumption of alcohol and drugs is not relevant in this case because the consumption of alcohol and drugs by the defendant was, in fact, an act intrinsic to the commission of the offence itself and the offence was not in any way driven by the consumption of that alcohol and drugs.

1. I order that a copy of the reports, the transcript of the evidence and the decision be given to the treating team.