Re Todd

[2013] QMHC 15

MENTAL HEALTH COURT

CITATION:

Re Todd [2013] QMHC 15

PARTIES:

REFERENCE BY THE LEGAL REPRESENTATIVES IN RESPECT OF RAYMOND JOHN TODD

PROCEEDING NO:

No. 0099 of 2012

DELIVERED ON:

10 April 2013

DELIVERED AT:

Brisbane

HEARING DATE:

27 March 2013

JUDGE:

Ann Lyons J

ASSISTING PSYCHIATRISTS:

Dr E N McVie
Dr Davison

FINDINGS AND ORDERS:

1. There is a reasonable doubt, pursuant to s 268 of the Mental Health Act 2000 (Qld), that the defendant committed the alleged offence of rape on 3 September 2010.

2.    The defendant was not of unsound mind at the time of the commission of the alleged offences of breaching a domestic violence order on 25 November 2011, 9 December 2011 and 22 January 2012 and breaching a bail condition on 22 January 2012.

3.    The defendant is fit for trial.

4.    The proceedings against the defendant in relation to the count of rape on 3 September 2010, the three counts of breaching a domestic violence order on 25 November 2011, 9 December 2011 and 22 January 2012 and the count of breaching a bail condition on 22 January 2012 are to continue according to law.

CATCHWORDS

MENTAL HEALTH – DECLARATION OR FINDING OF MENTAL ILLNESS OR INCAPACITY – where defendant charged with one count of rape, three counts of breach of a domestic violence order and breach of a bail condition – where the defendant denies that he is guilty of the rape charge – where there is a reasonable doubt, pursuant to s 268 Mental Health Act 2000 (Qld), that the defendant committed the rape offence due to a dispute of fact so that the Mental Health Court can no longer proceed in relation to that offence – where there was no evidence that the defendant was mentally unwell at the time of the alleged offences of breaching domestic violence orders and breaching a bail condition – whether the defendant is fit for trial – where expert opinion differed as to whether the defendant was suffering from formal thought disorder

COUNSEL:

J Briggs for the defendant
J Tate for the Director of Mental Health
J Thomas 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)

A LYONS J:

1. This is a reference by the legal representatives for Raymond John Todd initially filed on 11 May 2012 and amended on 9 July 2012. Mr Todd is charged with three sets of offences, namely:

(i)         One count of rape on 3 September 2010;

(ii)        Three counts of breach of a domestic violence order on 25 November 2011, 9 December 2011 and 22 January 2012; and

(iii)       Breach of a bail condition on 22 January 2012.

1. In relation to the charge of rape on 3 September 2010, Mr Todd has consistently disputed that he is guilty of that offence. In particular, Mr Todd has indicated that the sex was consensual and that both he and the complainant were intoxicated. It is clear therefore that given the requirements of s 268 of the Mental Health Act 2000 (Qld), this Court cannot proceed further to determine the reference to that offence, as Mr Todd is disputing that he is guilty of that offence.

1. In relation to the other offences, the Court has the benefit of a number of reports, in particular, an extensive report by Dr Scott dated 5 October 2012, as well as the two reports of Dr Flanagan dated 19 March 2012 and 14 February 2013. The court also has a report by Mr Todd’s treating psychiatrist, Dr Chauhan dated 14 March 2013.

1. In his first report, Dr Flanagan indicated that Mr Todd suffers from a chronic psychotic illness, namely bipolar affective disorder type 1 or possibly a chronic schizo-affective disorder – bipolar. He also stated that Mr Todd’s illness is compounded by alcohol abuse, poor compliance and his antisocial traits. Dr Scott also considered that Mr Todd has a mental illness, namely bipolar affective disorder, together with a natural mental infirmity, namely mild mental retardation. He also indicated that Mr Todd has a history of impulsive behaviour and impaired judgment.

1. There is no indication in those reports that Mr Todd was mentally unwell at the time of any of the alleged offences involving the breach of the domestic violence order in 2011 and 2012 or the breach of the bail condition in 2012.

1. The real issue in this reference therefore is whether Mr Todd is fit for trial.

The evidence of Dr Flanagan

1. Dr Flanagan, in his report of 14 February 2013 indicated that he did not consider that Mr Todd was fit for trial. In particular, he stated that Mr Todd did not understand the charges or the seriousness of the charges. In his view, Mr Todd did not believe that there was any possibility of serious legal consequences as a result of those charges. Dr Flanagan also indicated that Mr Todd lacked the ability to plead to the charge and exercise his right to challenge due to this thought disorder as well as his inability to separate facts from irrelevancies. Dr Flanagan did, however, consider Mr Todd was able to understand the nature of the proceedings.

1. In terms of whether he could follow the course of the proceedings, Dr Flanagan considered that Mr Todd is extremely distractible and extremely self-absorbed. Accordingly, he would not be able to follow the course of the proceedings reliably or consistently. Dr Flanagan also considered that Mr Todd was unable to understand the substantial effect of any evidence that might be given against him and he would not be able to make his defence in a coherent and consistent way. He did not think he would be able to tell the court his version of the facts and stated that he thought that was demonstrated in the police interview. Dr Flanagan did not consider, however, that a court case would cause Mr Todd any serious or lasting harm but that under pressure his thought disorder would probably be made worse.

1. Both Dr Scott and Dr Flanagan gave evidence at the hearing before the Court. It is clear that the basis upon which Dr Flanagan provided his view that Mr Todd would be unfit for trial was that he considered that there was evidence of a formal thought disorder. In particular, Dr Flanagan considered that Mr Todd displayed consistently severe thought disorder, with marked loosening of association and interpenetration of theme and metonymy, which is an idiosyncratic use of a word or phrase. He considered that those aspects were observable during the police interview and during the interview he had with him.

The evidence of Dr Scott

1. Dr Scott, however, in his very careful evidence to the court, stated that he had watched the interview with police twice and, in his view, there was no indication of a formal thought disorder throughout those interviews. Dr Scott indicated that, whilst Mr Todd was quite circumstantial and over-inclusive, there was no formal disorder apparent. Dr Scott stated that Mr Todd was alert and oriented and maintained good eye contact and manifested a friendly smiling expression. He did not consider he was guarded, suspicious or distractible. Dr Scott considered that Mr Todd was euthymic and mildly fatuous, with increased reactivity. He considered he was not grandiose and neither was he overly concerned about the outcome of his current prosecutions.

1. Dr Scott’s evidence was that Mr Todd’s judgment was chronically impaired and that he demonstrated poor insight into his need to abstain from alcohol. He considered, however, that Mr Todd demonstrated reasonable insight into his mental illness and to the warning signs of his illness. Dr Scott did not consider that Mr Todd could not participate meaningfully at trial. Dr Scott carefully considered each of the criteria in accordance with R v Presser [1958] VR 45 and in his view Mr Todd was fit for trial. In particular, he considered Mr Todd had the capacity to understand what he was charged with and the nature of the proceedings. He noted that Mr Todd had multiple past convictions for breaches of domestic violence orders and other offences and that he is very familiar with proceedings in the Magistrates Court. He also stated that Mr Todd has had an opportunity to read the police brief and the statements on the brief and he has also taken advice from his solicitor in relation to the charges. Dr Scott noted that Mr Todd does not contest that he committed the breaches of the domestic violence orders and the bail condition.

1. In relation to the rape charges, Dr Scott noted that the elements of the rape charge were relatively straight forward and whilst the complainant said he was raped, Mr Todd continues to argue that the complainant was intoxicated when he came to his house and that the subsequent intercourse was consensual. There are no witnesses to the alleged rape. Mr Todd has also consistently indicated that the complainant stole money from him and that he was a disreputable character who had had similar experiences in the past. He is therefore able to put forward his version of events.

1. Dr Scott indicated that when he discussed the DNA evidence with Mr Todd, he considered that he understood the implications of that evidence. Dr Scott also stated that Mr Todd would be able to exercise his right of challenge on the advice of his counsel. In particular, Dr Scott considered that Mr Todd’s cognitive defects and his mental illness would not prevent him from following the evidence. In his view, whilst he might become distracted, he did not have a significant memory impairment which would preclude him from following.

1. Similarly he considered that, whilst Mr Todd has mild cognitive deficits and a mental illness, those conditions would not prevent him from understanding the evidence of the complainant and the other person who was in the house on the night. Dr Scott, in particular, considered that Mr Todd has capacity to instruct solicitors as to his version of events and indeed has done so on many occasions. Whilst he accepted that Mr Todd was circumstantial and over-inclusive, he did not consider there was any thought disorder. He considered Mr Todd was able to be redirected to focus on specific questions or lines of inquiry and was able to provide coherent, internally consistent and plausible answers to specific questions.

1. Dr Scott also noted that Mr Todd trusted his current solicitor, who has represented him previously, and that Mr Todd has confidence in him. He did not consider that Mr Todd was easily led or suggestible and he was not at risk of being overwhelmed or sensitive to duress. Dr Scott indicated that Mr Todd would benefit from a preparation for trial and from further advice from his legal representatives, but considered that with the support and assistance of his support persons and legal representatives he would be able to participate meaningfully in the trial.

The evidence of Dr Chauhan

1. Dr Chauhan also gave evidence and he indicated that he had been Mr Todd’s treating psychiatrist since 2006. Dr Chauhan confirmed that Mr Todd has a diagnosis of bipolar affective disorder. He stated that when he becomes hypomanic he becomes more talkative, walks a lot, drinks a lot more and becomes sleepless with grandiose ideas. Dr Chauhan considered that Mr Todd could give his point of view very well. He considered Mr Todd was fit for trial and that he would be able to concentrate during a trial. He considered that his formal thought was characterised by spells of circumstantiality but did not note any delusions or preoccupations. He considered that Mr Todd lacked insight into his disorganisation and social inappropriateness which was secondary to his intellectual disability and chronic mood disorder. He stated that no hallucinations or perceptual abnormalities were noted. Dr Chauhan noted that Mr Todd is a voluntary patient and receives oral and injectible medications as well as psychiatric reviews and assertive case management in close liaison with his general practitioner. He also told the court that Mr Todd had been successfully managed recently and that he had had no inpatient admissions in the last two and a half years.

Advice of the assisting psychiatrists

Dr McVie

1. Dr McVie advised that the clinical information indicates that Mr Todd suffers a mild intellectual disability and that he has also been diagnosed with a bipolar disorder since the early 1990s. She noted that his last admission for his bipolar disorder in the middle of 2010 was for a hypomanic episode.  Since that time, Mr Todd has remained in treatment with Rockhampton Health Services and although he is considered to have a limited insight, he has been compliant with treatment on a voluntary basis.

1. Dr McVie also noted that Mr Todd had a significant problem with alcohol abuse and that, in relation to the main offence of rape, there is a clear dispute of the facts that is not related to any mental disorder.  The reports indicate that intoxication may well have also been a factor at the time of that offence, and Dr McVie’s advice was that the finding in relation to that offence should be a dispute of the facts.

1. In relation to fitness for trial, Dr McVie referred to Dr Flanagan’s evidence that Mr Todd suffered with marked formal thought disorder and that Dr Flanagan related this formal thought disorder, not to his intellectual disability, but to a chronic psychotic process. He considered that Mr Todd was unfit for trial due to his significant marked formal thought disorder.  Dr McVie advised, however, that the treating psychiatrist, Dr Chauhan, gave very clear evidence that Mr Todd has had episodes of psychotic illness with his last episode being mid-2010, and he considered Mr Todd to be well at present with no evidence of psychosis.

1. Dr McVie also noted that Dr Scott, in his evidence, was unable to find any sign of psychosis in Mr Todd at the time of his assessment last year. She also noted that both Dr Scott and Dr Chauhan referred to disorganisation in speech and thought processes.  Dr Chauhan referred to appearance and behaviour and Dr Scott discussed the concept of circumstantiality and thought disorder extensively in his oral evidence.

1. Dr McVie’s advice to the Court was that the abnormalities in the manner in which Mr Todd presents information are most likely due to his intellectual disability and do not constitute a formal diagnosis of formal thought disorder.  Dr McVie’s advice was to accept the evidence of Dr Scott, which was very clear in this regard.

1. In terms of fitness for trial, Dr McVie advised accepting the evidence of Dr Scott, which, to her mind, follows the correct process in assessing Presser criteria.[1]

   [1]R v Presser [1958] VR 45.

1. She also had regard to the police interview conducted around September 2010, where the support person, Mr McDonald, said that Mr Todd was very difficult to have a conversation with but then stated, "Whereas he's a lot better now."  This would be consistent with his improvement after his then relatively recent episode of hypomania in the middle of 2010.  Overall, Dr McVie’s advice was to accept Dr Scott's clear evidence and the opinion of Dr Chauhan that Mr Todd is fit for trial.

Dr Davison

1. Dr Davison concurred with the remarks of Dr McVie but made one other observation.  Dr Davison indicated that it may be helpful to separate the concept of circumstantiality from the diagnosis in order to analyse the issue. Dr Davision advised that it is relatively common for people with anxiety disorders, a degree of depression, or a reactive mood state due to a stressful situation, including court proceedings, to become more circumstantial.  Dr Davision agreed with Dr McVie that Mr Todd was fit for trial.

FINDINGS AND ORDERS

1. Having considered the extensive report of Dr Scott and the advice of the assisting psychiatrists, I am satisfied that Mr Todd is fit for trial. In particular, the advice of the assisting psychiatrists is that, whilst the clinical evidence shows a mild intellectual disability and a bipolar affective disorder since 1999, his last admission was in mid 2010 and he is receiving appropriate treatment from the Rockhampton Mental Health Service.

1. Dr McVie did not consider that there was evidence of a formal thought disorder and notes that there is no diagnosis of a thought disorder. She considers that Mr Todd is fully fit for trial and that Dr Scott’s opinion should be preferred as he outlined the correct analysis of Mr Todd’s condition in relation to the Presser criteria.

1. Dr Davison also agreed that I should prefer the report of Dr Scott and that Mr Todd’s circumstantialities should be separated from his diagnosis of bipolar affective disorder. In particular, he considers that Mr Todd becomes more circumstantial due to stress and that on this occasion, his circumstantiality was a product of the stress and not a diagnosis of bipolar affective disorder. Dr Davison agreed that Mr Todd was fully fit for trial.

1. Accordingly, the charges the subject of the reference should continue according to law.

1. Mr Todd is fit for trial.

Orders

1. In relation to the count of rape on 3 September 2010, there is a reasonable doubt, pursuant to s 268 of the Mental Health Act 2000 (Qld), that the defendant committed the alleged offence.

2.   In relation to the three counts of breaching a domestic violence order on 25 November 2011, 9 December 2011 and 22 January 2012 and the count of breaching a bail condition on 22 January 2012, the defendant was not of unsound mind at the time of the commission of the alleged offences.

3.   The defendant is fit for trial.

4.   In relation to the count of rape on 3 September 2010, the three counts of breaching a domestic violence order on 25 November 2011, 9 December 2011 and 22 January 2012 and the count of breaching a bail condition on 22 January 2012, the proceedings against the defendant are to continue according to law.