Re Wabara

[2007] QMHC 33

MENTAL HEALTH COURT

CITATION:

Re Wabara [2007] QMHC 33

PARTIES:

REFERENCE BY THE DEFENDANT’S LEGAL REPRESENTATIVE IN RESPECT OF MARCUS KIKI WABARA

PROCEEDING:

No 0252 of 2006

DELIVERED ON:

17 July 2007

DELIVERED AT:

Brisbane

HEARING DATE:

17 July 2007

JUDGE:

Philippides J

ASSISTING PSYCHIATRISTS:

Dr J F Wood
Dr J M Lawrence

FINDINGS AND ORDERS:

1.    In respect of the alleged offences of 1 September 2006:

a. the defendant was not of unsound mind as defined in Schedule 2 of the Mental Health Act 2000 (Qld) at the time of the alleged offences;

b.   the defendant is fit for trial; and

c.   the proceedings be continued according to law             

2.    In respect of the alleged offences of 30 August, 31 August and 4 September 2006:

a.   there is a reasonable doubt that the defendant committed the alleged offences;

b.   the defendant is fit for trial; and

c.   the proceedings be continued according to law.     

CATCHWORDS:

MENTAL HEALTH – DECLARATION OR FINDING OF MENTAL ILLNESS OR INCAPACITY – where defendant charged with 25 offences, including various violent offences – where defendant denied two of the charges – whether defendant’s denial of those two charges arose from the defendant’s mental condition – whether defendant fit for trial

MENTAL HEALTH – DECLARATION OR FINDING OF MENTAL ILLNESS OR INCAPACITY – where defendant charged with 25 offences, including various violent offences – where expert opinion as to whether the defendant was suffering from a delusional disorder at the relevant times differed – where defendant has a history of cannabis abuse – where evidence that the defendant's mental state at the time of the alleged offences was significantly affected by cannabis intoxication – whether the defendant was of unsound mind at the relevant times – whether the defendant is fit for trial

COUNSEL:

R Frigo for the defendant
W Isdale for the Director of Mental Health
D Holliday for The Director of Public Prosecutions

SOLICITORS:

Provest Law for the defendant
Crown Law for the Director of Mental Health
The Director of Public Prosecutions (Qld)

1. PHILIPPIDES J:  The defendant Marcus Wabara, a 24 year old Nigerian citizen, is charged with 25 offences, including attempted murder, unlawful wounding, serious assault, and going armed in public so as to cause fear.  The offences are alleged to have been committed on various dates between 30 August 2006 and 4 September 2006. 

1. The defendant's mental condition at the time of the alleged offences has been referred to this Court.  The offences are disputed bar two.  They concern possession of a dangerous drug on 1 September 2006 and possession of property suspected of being used in connection with drug misuse, also on 1 September 2006.

1. Briefly, the offences are alleged to have occurred on 30 and 31 August 2006, and 1 and 4 September 2006.  The alleged offences of 30 August 2006 concern the defendant approaching vehicles in a street and attempting to access them by lifting handles.  Police found a kitchen knife on the defendant and following this, sought to arrest him. 

1. He is alleged to have resisted that and to have assaulted police officers.  He is also said to have been in possession of tainted property. 

1. On 31 August 2006 he was observed to have been sitting in a motor vehicle which he did not own.  When questioned by police he told them that he had no reason for entering the vehicle, did not know the owner and could not offer an explanation. 

1. In relation to the offences of 1 September 2006 police approached the defendant to question him in relation to the earlier offences.  They found on the defendant three stainless steel knives.  He again is alleged to have resisted arrest, kicking and lashing out, and on that occasion he is also alleged to have been in the possession of one gram of cannabis and also a pair of scissors said to be used to cut up cannabis. 

1. The offences of 4 September concern the defendant approaching a woman and seizing from her a mobile phone.  When she tried to prevent him from doing so he grabbed her hand and is alleged to have said, "If you move so help me God I will kill you."  Later, on that day, he is alleged to have ripped a set of car keys from the mouth of a woman who was unloading her car and decamped with the keys.  Two off-duty police officers pursued the defendant and he is alleged to have assaulted them and to have produced a knife and to have inflicted a wound on one of the officers in the course of a struggle with them.  On that occasion the defendant is said to have been in possession of four knives.

1. Dr Fama interviewed the defendant on 18 October 2006 at which stage he had been in custody for some six weeks.  The defendant volunteered that he had a problem with excessive alcohol use which had resulted in a period in rehabilitation.  He also indicated that he smoked marijuana from time to time indicating a bong on a Saturday.  He denied being under the influence of alcohol or drugs at the time of the alleged offences. 

1. Dr Fama saw the defendant's denial of the alleged offences as attributable to a mental condition arising from delusional paranoia.  The defendant gave an account to Dr Fama that he believed there was an ongoing conspiracy against him, possibly racially based, involving the police and people at a hotel where he had stayed.  He told Dr Fama that he believed that he had been injected with drugs at the hotel and that that was when his problems began.  He also gave an account of carrying the knives in question for an innocent purpose as a requirement for his participation in a hospitality course at TAFE.

1. Dr Fama saw the defendant as suffering from a delusional disorder which deprived him of the capacity to know that he ought not do the acts in question.  He opined that the delusional belief which was present at the relevant times continued and that in those circumstances the defendant ought to be afforded a defence of unsoundness of mind with any dispute being attributable to the mental illness.

1. Dr Varghese saw things differently.  He obtained a much more extensive account of cannabis use from the defendant who told him that he had been using cannabis at the age of 15, that he had been spending about $90 a day on cannabis and used between 20 to 25 joints per day.  Dr Varghese, when he interviewed the defendant on 2 May 2007, did not consider that there was any persisting delusional thinking.  He considered that the defendant's mental condition was completely normal at interview.  He opined that the defendant's mental state at the time of the alleged offences was significantly affected by cannabis intoxication.  He did not consider that the defendant had a delusional disorder and was of the view that, if there was ever a time when there was a delusional ideation, it was probably secondary to cannabis use.  He, therefore, did not support a defence of unsoundness of mind at the relevant times considering that it was highly likely that the defendant's actions were significantly influenced by mental changes brought about by cannabis intoxication.  He pointed in this regard particularly to his assessment that there was no account of persisting delusional beliefs.

1. The defendant therefore had a further interview with Dr Fama where he admitted to more extensive cannabis use than he had done on the first interview.  Nevertheless, Dr Fama did not believe that the account of cannabis use was a particularly reliable one.  To Dr Fama he gave two further versions; that he used cannabis in the amount of $90 twice a week and that on the night of 30 August he had smoked about three and a half joints and also had smoked a joint on 31 August and 1 September.  Dr Fama centred his view that the defendant suffered from a delusional disorder on his opinion that the defendant's delusions had persisted for a lengthy period during which the defendant did not have access to cannabis.  However, he admitted that on the second interview he did not specifically ask the defendant about the delusion concerning the injection with drugs at the motel.  I note that the position which Dr Varghese came to is supported by the report of Dr Calder-Potts, who saw the defendant soon after the first interview with Dr Fama and did not find evidence of any psychotic symptoms and who also obtained from the defendant a history of daily cannabis use.

1. In the circumstances, I am unable to be persuaded that the disputed charges can be seen in terms of a dispute attributable to a delusional disorder.  I prefer Dr Varghese's evidence on the matter of diagnosis.  Accordingly, in relation to all but the two offences which are not disputed I am of the view that there is a material dispute giving rise to reasonable doubt which is not attributable to mental illness.  I make no finding as to the defendant's state of mind at the relevant times.  As regards those matters the defendant is fit for trial.  The proceedings will continue according to law.

1. In relation to the two charges that are not disputed, I find that the defendant was not of unsound mind.  The defendant is fit for trial.  Those proceedings will continue according to law.  I grant leave to the parties to use any medical reports in those proceedings.