Re Van Der Merwe
[2010] QMHC 36
•30 September 2010
MENTAL HEALTH COURT
CITATION:
Re Van Der Merwe [2010] QMHC 36
PARTIES:
REFERENCE BY THE LEGAL REPRESENTATIVES IN RESPECT OF JASON GEORGE VAN DER MERWE
PROCEEDING NO:
213 of 2009
DELIVERED ON:
30 September 2010
DELIVERED AT:
Brisbane
HEARING DATE:
28 September 2010
JUDGE:
Ann Lyons J
ASSISTING PSYCHIATRISTS:
Dr E N McVie
Dr J LawrenceFINDINGS AND ORDERS:
1. That at the time of the alleged offence on 29 January 2005 the subject of the reference the defendant was suffering from unsoundness of mind as described in Schedule 2 of the Mental Health Act 2000 (Qld);
2. That the defendant be detained as a forensic patient at the Gold Coast Authorised Mental Health Service
3. That limited community treatment is approved to the Gold Coast Authorised Mental Health Service at the discretion of the authorised psychiatrist, on the conditions set out in the submission of the Director if Mental Health
CATCHWORDS:
MENTAL HEALTH – DECLARATION OR FINDING OF MENTAL ILLNESS OR INCAPACITY – where the defendant is charged with one count of a serious assault on a police officer – whether the defendant was of unsound mind at the time of the alleged offence as described in Schedule 2 of the Mental Health Act 2000 (Qld).
COUNSEL:
J Briggs for the Defendant
B McMillan for the Director of Mental HealthS Vasta for the Director of Public Prosecutions (Qld)
SOLICITORS:
Legal Aid Queensland for the Defendant
Crown Law for the Director of Mental HealthThe Director of Public Prosecutions (Qld)
ANN LYONS J:
The alleged offence
This is a reference by the legal representatives for Mr Van Der Merwe. Mr Van Der Merwe is charged with one count of a serious assault on a police officer on the 29th of January 2005.
Factual Background
On the 29th of January 2005 police were called to a park where Mr Van Der Merwe was alleged to have been threatening members of the public who considered he was under the influence of a drug. When police arrived he ran into nearby bushland and climbed a tree. He refused a request to come down and it is alleged that he hit out and threw branches at police. He was ultimately sprayed with capsicum spray and after he fell to the ground he got up and started throwing punches at police. He was warned to stop but apparently continued to fight and was sprayed again. He was then handcuffed and lead back to the park where it is alleged that he once again became violent. When other officers arrived he continued to kick out at police and when he was placed in the police vehicle he continued to be violent and head-butt the cage and windows of the vehicle as well as spitting blood and mucus at an officer. He was warned again and sprayed once again during which it is said that he is alleged to have attempted to bite and spit again on the officer he had previously spat at.
Dr Schramm’s report
Dr Schramm’s report dated 14 May 2009 indicates that at around the time of those offences Mr Van Der Merwe had become increasingly unwell. On the 27th of January 2005, two days before the alleged offence, Gold Coast Mental Health Service was contacted by the defendant’s parents who indicated that he was becoming aggressive and threatening to kill them as well as becoming grandiose and insightless. Mr Van Der Merwe’s mother reported he was using cannabis and was not compliant with his medication. He had excessive energy, was delusional and not sleeping.
On 30 January 2005 the day after the offences he was also brought into the emergency department at the Gold Coast Hospital. On that admission he admitted to using one gram of cannabis every two days as well as stimulants. On that admission his parents informed the psychiatric registrar that his mental health had been deteriorating. He was assessed on 31 January 2005 by a psychiatrist who considered there was no evidence of hypomanic state. His involuntary treatment order was revoked and he was discharged to be followed up by the Acute Care team in the community. A urine drug screen taken on the 31 January was positive for cannabis, opiates and sympathomimetic amines which indicates the probable use of amphetamines in the previous 24 to 72 hours.
Mr Van Der Merwe was then returned to hospital under a Justices Examination Order (JEO) on 5 February 2005. He was threatening to burn his residence down and his housemates indicated he had been aggressive and was expressing bizarre grandiose ideas, was spending excessive money, using illicit drugs and was non-compliant with medication. On examination on that date he was clearly experiencing delusional ideals including irritability and grandiosity. He was placed on an involuntary treatment order and admitted to the ward. After a week on the ward despite sedation with an anti-psychotic medication he was reported to continue to be elevated in mood, over-feeling and grandiose and without insight.
On 9 February 2005 a urine drug screen was positive for benzodiazepines and cannibiniods but not opiates or sympathomimetic amines. He was absent without leave from the ward and returned on 24 February and it was obvious he had used numerous illicit drugs whilst off the ward and was highly elevated in his mood. He admitted to taking cannabis, amphetamines and cocaine. A urine drug screen on 1 March 2005 was positive for cannabis and opiates but not for sympathomimetic amines. After three weeks of his admission he was given unescorted leave and he was ultimately discharged to a rehabilitation clinic on 22 March 2005. Dr Schramm notes in his report that the hospital documents indicate that the differential diagnosis at discharge was a “bipolar disorder (recent manic episode or a substance induced psychotic disorder or substance induced mood disorder).”
Dr Schramm in his report initially indicated that Mr Van Der Merwe was disputing some of the factual material in the Court brief. In particular he denied continuing to be violent after he was capsicum sprayed and fell out of the tree. However Dr Schramm stated that Mr Van Der Merwe conceded at the end of the interview that his lack of memory could be explained by his disturbed mental state given that he had lost a significant amount of time in the days after the offence.
Dr Schramm’s opinion was that since 2000 Mr Van Der Merwe has, on an annual basis, experienced marked deteriorations in his mental health which is entirely consistent with a manic psychosis. The differential diagnosis he considers is clearly between a recurrent bipolar effective disorder type 1 which he considers is slightly unusual but not unheard of in that he does not seem to suffer from depressive episodes, and a substance induced mood disorder. Dr Schramm indicated he would favour the latter diagnosis given that Mr Van Der Merwe has always remained well even without medication until he returns the very heavy use of cannabis.
Dr Schramm considered that because of his disturbed mental state at the time of the alleged offence he would not have been able to control his behaviour or to reason about the wrongfulness of it. He considered he had grossly disturbed including various grandiose and other delusional ideas and was acting in an uncharacteristically disinhibited and entitled state. Dr Schramm considered that this disturbance went beyond simple intoxication as it lasted for several weeks leading up to the offence and then at least several weeks after the offence. Dr Schramm considers that the clinical notes indicate that Mr Van Der Merwe remained in a significantly disturbed state even after being admitted and commenced on medication.
Dr Schramm considers that a substance induced mood disorder is a mental disease which exists without acute intoxication on cannabis. Accordingly he considers Mr Van Der Merwe would have been deprived of capacity by virtue of his mental disease alone even if not intoxicated. He considers however that he probably was intoxicated at the time of the alleged offence. This is on the basis that Mr Van Der Merwe stated that he had ‘probably’ consumed cannabis beforehand and the urine drug screen indicated that he had probably used amphetamines in the proceeding 24-72 hours prior to the alleged offences. Dr Schramm said that the intoxication on cannabis would have had some affect on his total mental state.
Dr Schramm considered that whilst there were some issues in relation to a dispute of fact, he was satisfied that the disputed fact could be explained by Mr Van Der Merwe’s grossly disturbed mental state at the time of the commitment of the alleged offence.
Dr Chalk’s report
In his report dated 11 January 2010 Dr Chalk gives an extensive history of psychiatric illness which commenced with an admission to hospital in South Africa in 2000. That admission had been initiated by a substantial use of marijuana in the months leading up to his hospital admission. Dr Chalk noted admissions in 2001, 2003, 2005, 2007, and 2008, all of which were for approximately two months duration and which occurred in similar circumstances.
Dr Chalk considered that Mr Van Der Merwe’s symptomatology prior to his admission on each occasion is similar in that he becomes elevated to a point where he no longer requires the cannabinoids to sustain his mood and that he could “carry on like a maniac for days with no artificial help”. Dr Chalk also noted that Mr Van Der Merwe disputed the facts surrounding the alleged offence. Dr Chalk reports that Mr Van Der Merwe accepted he was smoking marijuana up to some hours before the events and that he has used ecstasy in the preceding days but was unclear as to how many days before.
Dr Chalk noted however that his past history would suggest that as he becomes more unwell he smokes less as his illness gets to the point when he does not need to take any drugs. Dr Chalk also considered that any dispute of the facts arises from Mr Van Der Merwe’s limited recollection of events. Dr Chalk’s ultimate view was that Mr Van Der Merwe at the time of committing the alleged offence had a substance induced psychosis and that at the time he was deprived of the capacity to understand what he was doing, the capacity to control his actions and the capacity to know he ought not do the act.
However he considered that the issue ultimately came down to one of intoxication and whether at the time of committing the alleged offence he had an illness that had a life of its own in spite of his drug use or one that was continuing to be fuelled by drug use. Dr Chalk considers there was clearly an indication of drug use given the positive urine screen and it was unclear when he ceased using the marijuana. Dr Chalk considers that Mr Van Der Merwe’s history of drug taking is unreliable.
Dr Chalk considers that Mr Van Der Merwe was very unwell at the time and was clearly impaired of the capacities at the time of the alleged offence however his view was that on balance one could not rule out the fact that amphetamine intoxication was in operation at the time of the offences.
The views of the assisting psychiatrists
Dr Lawrence
Dr Lawrence considered that Mr Van Der Merwe’s case was clinically a very issue. She considered that the evidence supports the view that Mr Van Der Merwe suffered at the time from a drug induced or substance induced disorder, with psychotic features although she noted that Dr Schramm put more emphasis on the fact that there was mood disorder as well at that time.
Dr Lawrence stated that both psychiatrists, Dr Schramm and Dr Chalk, agreed on that diagnosis and that it qualified as a mental illness. They also agreed that at the time of the offences the mental illness was sufficient to deprive him of the relevant capacities of knowing and control.
Dr Lawrence noted however the difference in the views of the two psychiatrists as to the question of intoxication. Dr Chalk was very clearly of the view that the intoxication was a relevant factor because of the finding of the amphetamines in the urine two days after the offences. Dr Schramm also acknowledged that in spite of Mr Van Der Merwe denials about the use of amphetamines, the amphetamines must have been in his system up to 72 hours prior to the taking of the urine drug screen on 31 January 2005. Dr Chalk believed that that was the prime evidence of the intoxication. Dr Schramm however lent towards the concept of the illness already being present and exacerbated by the use of the substances at the time. His view was that it stopped short of the affect of intoxication.
Dr Lawrence noted that neither psychiatrist put a great deal of emphasis on the fact that there had also been some acknowledgement of probable further ingestion of cannabis on the morning of the offences.
Dr Lawrence’s view was that the substances were relevant, intoxication was present and that the use of substances contributed to the development of the disorder in the first place. She would favour the view that there was ingestion of substances, particularly amphetamines which must have occurred at about the time of the commission of the offences and would have of itself contributed to some extent to the mental state that pertained at the time of the actual offences.
Dr Lawrence considered however that this view was open to discussion and debate and differing opinion when you translate clinical phenomena into a legal concept in this particular case. She considered that as Dr Schramm has pointed out, there is a pattern of behaviours which culminate, apparently, in very disturbed behaviour and mental illness as such. That pattern is clearly associated with an increased ingestion of cannabis, at least, and probably the use of other substances as well, as very disturbed behaviour over a period of months.
Dr Lawrence considered that in consideration of the patient's needs as well as the protection of the community there should be a forensic order if there was a finding of unsoundness of mind.
Dr McVie
Dr McVie stated that both Dr Schramm and Dr Chalk considered that Mr Van Der Merwe was psychotic at the time of the offences and his psychosis was severe enough to deprive him of the capacity to know he ought not do the act. She considered that the history was one of a recurrent psychotic disorder which has required at least six admissions from 2000 and these psychotic episodes appear to have been precipitated by episodes of heavy cannabis abuse and at times non-compliance with prescribed medication.
Dr McVie stated that the history indicated that it took some time for the psychosis to develop and from Dr Schramm's description the psychosis doesn't arise from an acute intoxication but rather develops in the context of ongoing substance use. In her view the pattern of relapses suggested some possibility of underlying Bipolar disorder, even though the history was unable to clearly delineate such a disorder.
Dr McVie considered that in relation to the offences, it was clear that Mr Van Der Merwe had been unwell for some time prior to the offences. She noted the Gold Coast service was contacted by his parents on 27 January, and they reported him not sleeping, having excessive energy, and being delusional, aggressive and threatening. Dr McVie noted that a JEO was taken out on that date and that after the offences, he remained unwell, being re-admitted on 5 February with beliefs that he had special psychic powers; that he was being tracked by a satellite camera; was dishevelled, restless, distractible, elevated, irritable, with pressured speech, and delusional.
Dr McVie noted that Dr Chalk considered that his mental state developed as a consequence of the use of cannabis, but he didn't consider that he was intoxicated with cannabis at the time of the offence. Dr McVie considered that Dr Schramm saw the psychotic illness most likely as a drug-induced psychosis, and he stated very clearly that the illness in itself was sufficient to deprive him of the capacity to know he ought not do the act. Dr Chalk however considered that he was probably intoxicated with amphetamines at the time, and the amphetamines contributed to his mental state which caused the deprivation of capacity such that a defence would not be available to him.
Dr McVie advised that some facts in this case were in doubt. Those facts are whether or not there is an underlying bipolar disorder; whether Mr Van Der Merwe had actually used amphetamines at all as the urine drug screen result was not confirmed. Furthermore if he did actually use the amphetamines, the question is whether he took the amphetamines before or after the offence.
Dr McVie noted that the documentation is not clear in what happened between his arrest and his presentation to the Gold Coast Hospital on 30 January. Dr McVie stated that Dr Schramm's report on page 17 indicates that Mr Van Der Merwe thought he was released after a few hours and then he walked home. The hospital documentation indicates he was brought to hospital on a JEO on 30 January. He was clearly in hospital on the night of the 30th prior to the urine drug screen being taken on the 31 January 2005.
Dr McVie also noted that a factor which goes against amphetamine intoxication being a significant feature at the time is the description of his mental state which persisted for several weeks, requiring a total of a seven-week admission to hospital from the beginning of February. At that time, he was considered to be still grandiose and delusional and aggressive, and this mental state continued in the absence of any further amphetamine use, as no urine drug screen showed any evidence of amphetamines.
Ultimately Dr Mc Vie advised that the opinion of Dr Schramm be preferred. She also considered that if a finding is made of unsoundness of mind, it's very clear that a forensic order is indicated, and that limited community treatment be ordered as per the submission of the Director of Mental Health.
Was Mr Van Der Merwe of Unsound Mind at the Time of the Commission of the Offence?
There is clear evidence that Mr Van Der Merwe was suffering from a mental illness at the time of the alleged offence. All the psychiatrists agree that Mr Van Der Merwe suffers from a recurrent psychotic disorder. This disorder has been in existence since at least 2000 and he has required at least six admissions since that date. There is also no doubt that the psychotic episodes appear to have been precipitated by episodes of heavy cannabis abuse and at times non-compliance with prescribed medication. There is general consensus that Mr Van Der Merwe suffers from a substance induced disorder, with psychotic features although Dr Schramm considered there is a mood disorder as well. Dr McVie also considers that the pattern of relapses suggests some possibility of underlying Bipolar disorder, even though the history was unable to clearly delineate such a disorder. Clearly then I consider that Mr Van Der Merwe was suffering from a mental illness on 29 January 2005 when he assaulted the police officer.
Not only is there consensus amongst the psychiatrists that Mr Van Der Merwe suffers from a mental illness there is also consensus that the mental illness was such that it would have deprived him of the relevant capacities of knowing he ought not do the act and the capacity to control his actions. Mr Van Der Merwe was clearly psychotic at the time.
The real question that arises for determination by the court is whether intoxication played a part in the deprivation of those capacities at the time of the commission of the alleged offence.
Intoxication
The term ‘unsound mind’ is defined in schedule 2 to the Mental Health Act2000 (Qld) (the Act) to mean “the state of mental disease or natural mental infirmity described in s 27 of the Criminal Code 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”. It is clear that intoxication per se does not necessarily deprive a person of the defence of unsoundness of mind. The intoxication must play a part in the deprivation of one of the capacities referred to in s 27 of the Criminal Code 1899 (Qld) (the Code).
Justice Dowsett in the 1998 decision of Re Claybourn[1] in the then Mental Health Tribunal considered the definition of unsound mind. His Honour considered that if the medical witnesses were able to identify a state of mind caused solely by mental illness which was such as to deprive someone of capacity, that state of mind would not to any extent be caused by intoxication even if there was a concurrent intoxication. In Re Claybourn it was clear that excluding the effects of substances the patient was deprived of a relevant capacity by his drug-induced psychosis. Justice Dowsett adopted that reasoning in his later decision of Re Plant[2] where he held
“As in Claybourn, the doctors here opine that even excluding the effects of alcohol and other drugs, the patient was deprived of a relevant capacity by his drug induced psychosis. I adopt my reasoning in Claybourn. In those circumstances I am satisfied that at the relevant time, the patient was suffering from unsoundness of mind....”
[1]Unreported 27 March 1998.
[2]Unreported 27 March 1998.
This reasoning was specifically approved of by Applegarth J in R v Clough.[3]
“[38] I only wish to add that the appellant's reliance on R v Whitworth and Re Plant is misplaced. Thomas J in Whitworth drew a distinction between the "temporary effects" of intoxication and the "enduring damage occasioned thereby". Dowsett J in Re Plant was concerned with a case of the latter kind. It was described as a case of a neuro-chemical change "created by sustained abuse of amphetamines but enduring past the expiry of the intoxicating effect thereof."
[39] Dowsett J adopted a definition of "intoxication" that accords with the definitions relied upon by the primary judge, and which are quoted by Muir JA at [14].
[3][2010] QCA 120.
His Honour continued as follows in relation to a discussion as to ss 27, 28 and 304A of the Code and the facts of that case;
“Factually, this case is entirely different to Re Plant and Re Claybourn. As Dowsett J stated in Re Plant, in both those cases the medical opinion was that “even excluding the effects of alcohol and other drugs, the patient was deprived of a relevant capacity by his drug induced psychosis.”
[42] Thomas J observed in Whitworth that there are reasons of public policy why the law will not permit certain states of mind to be relied upon by an accused so as to affect their criminal responsibility. What his Honour described as the "temporary effects" of intentional intoxication, as distinct from the enduring damage occasioned by intoxication, is one such condition.
[43] The appellant was found to be experiencing such temporary effects at the time he murdered his wife. The primary judge applied the ordinary meaning of
"intoxication" to facts that are not challenged in this appeal. The meaning of
"intoxication" accords with earlier authority and with the policy that is implicit in s 28.”
It is clear that the medical evidence in Clough was to the effect that the methylamphetamine consumed by the defendant on a Wednesday was considered to still have a deleterious affect on his mental state on early Friday morning. In that case there was a clear finding that the defendant would not have been deprived of the capacity to know he ought not do the act but for the continuing effects on his mental state of the methylamphetamine and that there would not have been a substantial impairment of that capacity but for the continuing effects on his mental state of the methylamphetamine.
There is no such evidence in this case. Indeed the factual basis for the submission that intoxication was present in this case is not clear to me. As Dr McVie noted there is no clear evidence that Mr Van Der Merwe was in fact intoxicated at the time of the alleged offence. Both Dr Chalk and Dr Schramm concluded that the cannabis use would not have caused intoxication. In my view while the evidence indicates that Mr Van Der Merwe’s psychosis at the time of the alleged offences had arisen out of a context of increasing cannabis use in the months leading up to January 2005 there is no evidence that the psychosis arose out of intoxication with cannabis. The evidence was that in Mr Van Der Merwe’s case the psychosis takes some time to develop and Dr Schramm's description was that his psychosis doesn't arise from an acute intoxication but rather develops in the context of ongoing substance use.
As Dowsett J explained in Plant the psychosis in that case had arisen as a result of sustained use of the drug rather than intoxication as follows.
“The Director’s argument appears to be that if the patient’s drug use was at such a level as to cause intoxication, then the psychosis resulted from such intoxication. I do not accept that line of reasoning. The word ‘resulting” implies a causal connection. There is undoubtedly such a connection between use of drugs and the psychosis, but intoxication is not in any sense the cause of that condition. It is rather another consequence of the same drug use.”
Clearly then there is no evidence of cannabis intoxication at the time of the alleged offence. There is a further suggestion that Mr Van Der Merwe was intoxicated because of his positive test as to amphetamines on 31 January 2005 and presumably because one of the witnesses stated he “looked intoxicated” at the time he was involved with the assault on the policeman. A positive test for amphetamines on 31 January means that at some period probably at any time up to 72 hours previously Mr Van Der Merwe had an unknown quantity of amphetamines. As Margaret Wilson J has stated previously;[4]
“That cannabinoids and sympathomimetic amines were detected in the defendant’s urine four days after the homicide confirms the other evidence that the defendant had used cannabis and methylamphetamine, but it says nothing about the effect of those drugs on his mental state at the time of the homicide.”
[4]R v Clough [2009] QSC 231 at 60.
Furthermore there is simply no direct evidence that amphetamines were consumed prior to the offence as opposed to after the offence. There is no evidence that even if amphetamines were consumed before the alleged offence there was intoxication with that substance at the actual time of the commission of the offence. There is no contemporaneous evidence from Mr Van Der Merwe that he had consumed amphetamines. There is no information as to the quantity alleged to have been consumed or the time it is alleged it was consumed. Whilst there is evidence of amphetamine ingestion at some stage I do not consider therefore that there is evidence upon which I could be persuaded that amphetamine intoxication was operative at the time of the commission of the offence.
Significantly in my view Mr Van Der Merwe was unwell for a significant period of time after his admission to hospital. The admission lasted some seven weeks apparently in the absence of any drugs at all. In my view that indicates the presence of a mental illness in the absence of drugs and furthermore that the psychosis was not one of the temporary effects of the drug use but rather the psychosis qualified as enduring damage from the sustained use of drugs.
In any event, even if there were amphetamines in Mr Van Der Merwe’s system at the time of the alleged offence (as opposed to after) I do not consider that it contributed to the deprivation of the capacity to know what he was doing or the capacity to control his actions. In my view given the longstanding nature of his mental illness, which may have been triggered by substance abuse, such illness had a life of its own at the time of the commission of the alleged offence. Significantly the substances did not contribute to the deprivation of those relevant capacities at the time of the commission of the alleged offences.
Accordingly I am not satisfied that intoxication played a role in the commission of this offence or even if present, such intoxication contributed to a deprivation of one of the relevant capacities.
I am satisfied that Mr Van Der Merwe was suffering form unsoundness of mind as defined in schedule 2 of the Act at the time of the commission of the offence on 29 January 2005.
I consider that a Forensic Order is required and should be in terms of the conditions set out in the submission of the Director of Mental Health.
Re: Jason George VAN DER MERWE
Forensic Order
Pursuant to section 288 of the Mental Health Act 2000 (Qld), the defendant should be detained to the Gold Coast Authorised Mental Health Service.
Limited Community Treatment
Pursuant to section 289, the Court approve limited community treatment to commence immediately at the discretion of the treating psychiatrist on the following conditions:
More than Overnight
That the patient reside at 2/173 Olsen Avenue, Labrador, Queensland 4215 or a place approved in advance in writing by the authorised psychiatrist;
That the patient attend an appointment with Agnew Alexander at the Ashmore Community Mental Health Service, Ashmore Commercial Centre, 207 Currumburra Road, Ashmore Queensland 4214 on Thursday 14 October 2010 at 1:30pm and all follow up appointments and in patient care as required by the authorised psychiatrist;
That the patient comply with the requirements of the authorised psychiatrist in relation to the taking of prescribed medication and other treatment;
That the patient abstain from using alcohol and illicit drugs and co-operate fully in random medical tests for the detection of those substances as required by the authorised psychiatrist;
That the patient not drive a motor vehicle unless permitted to do so by the authorised psychiatrist.