Re Wallace

[2010] QMHC 27

MENTAL HEALTH COURT

CITATION:

Re Wallace [2010] QMHC 027

PARTIES:

REFERENCE BY THE LEGAL REPRESENTATIVE IN RESPECT OF JONATHON MONTGOMERY WALLACE

PROCEEDING NO:

0060/09

DELIVERED ON:

1 November 2010

DELIVERED AT:

Brisbane

HEARING DATE:

1 November 2010

JUDGE:

Ann Lyons J

ASSISTING PSYCHIATRISTS:

Dr F Varghese
Dr N McVie

FINDINGS AND ORDERS:

1.    The defendant was of unsound mind when the alleged offence was committed

2.    The proceedings according to law against the defendant are discontinued and further proceedings must not be taken against the defendant for the act or omission constituting the offence.

3.    The defendant is ordered to be detained for involuntary treatment or care in the authorised mental health service WEST MORETON SOUTH BURNETT Authorised Mental Health Service

4.    Limited community treatment for the defendant is approved and is to commence immediately at the discretion of the treating psychiatrist on the conditions contained in the submission from the Director of Mental Health.  

CATCHWORDS:

MENTAL HEALTH – DECLARATION OR FINDING OF MENTAL ILLNESS OR INCAPACITY – where the defendant is charged with the unlawful use of a motor vehicle and two simple offences of driving without a licence and driving under the influence of alcohol – where evidence the defendant has a long history of schizophrenia – whether intoxication is an issue – whether the defendant was of unsound mind at the time of the alleged offences as described in Schedule 2 of the Mental Health Act 2000 (Qld) .

COUNSEL:

J Briggs for the Defendant
J Tate for the Director of Mental Health

J Thomas 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)

ANN LYONS J:

1. This is a reference by the Director of Mental Health in relation to Jonathan Montgomery Wallace filed on 23 March 2009.  Mr Wallace is charged with one indictable offence and two simple offences.  He is charged with the unlawful use of a motor vehicle and also with two simple offences of driving without a licence and driving under the influence of alcohol.  

1. All of those offences occurred on 19 December 2008.  The police brief indicates that on that date police were notified of a single vehicle accident on a highway roundabout at Yorkeys Knob.  When they attended they spoke to Mr Wallace who smelt strongly of alcohol.  A roadside breath test was positive and Mr Wallace informed police he had been drinking rum and beer since 1pm that day.  Initially he told police there was an emergency which required him to drive his vehicle.  He also said he had a fight with a mate and decided to leave and he stated that he did not have a driver’s licence. 

1. In a report to the Director of Mental Health dated 25 February 2009 Dr Allen Drummond stated that

“in my opinion his disease of mind paranoid schizophrenia caused him to have persecutory delusions that his friend could read his mind.  On the balance of probabilities I think that this particular persecutory delusion sufficiently influenced his decision-making to cause him not to have capacity to know that he ought not do the act when he had the physical fight with his friend and drove off in his friend’s car while unlicensed and intoxicated with alcohol”. 

1. In an addendum report dated 13 March 2009 Dr Drummond stated:

“Mr Wallace’s  belief that his friend could read his mind was the main motivating factor in causing him to fight his friend and then drive off in his friends car without his friends permission while unlicensed and intoxicated.

Although it is reasonable to assume that being intoxicated with alcohol is likely to cause behavioural dis-inhibition, impair judgment and increase the risk of rash behaviour, I think that in this case, it is more likely than not that he would have behaved in the same way even if he had not been intoxicated with alcohol.”

1. Dr Drummond gave evidence at the hearing and conceded that alcohol did contribute to some extent to Mr Wallace’s state of mind.  He also stated that he did not consider that command hallucinations were operating at the time of the alleged offences.  Dr Drummond agreed that he and Dr Fama both agreed on a diagnosis of paranoid psychosis but that there difference of opinion related to the severity of the illness and the intensity of his psychotic symptoms at the time of the offences as well as the significance of the interaction of alcohol.  He considered his psychosis would have been strong given he had been off medication for some time.  Dr Drummond did not necessarily consider that the alcohol would have impacted on the intensity of the psychosis but considered it would have increased his desire to act on the symptoms and would have increased his dis-inhibitions. 

1. Dr Drummond considered that if a finding of unsoundness of mind was made then Mr Wallace would require a forensic order given his past convictions for assault, the partial responsiveness to medication and his continuing combined use of alcohol and substances. 

1. Dr Peter Fama has prepared a more recent report to the court which is dated 1 July 2010.  Dr Fama set out the factual background in his report which was that on Friday 19 December police officers received a complaint from Jarrah Parkinson that his car had been stolen and that it had been taken after he had had a physical altercation with Mr Wallace and suspected that after that Mr Wallace had taken his car.  Police subsequently discovered the Holden utility had been driven by Mr Wallace and when he approached the Yorkeys Knob traffic roundabout he found he was travelling too fast as he locked the brakes and mounted the kerb he came to rest on a grassed area within the roundabout causing extensive damage to the vehicle.  Dr Fama recounted that Mr Wallace recalled the charges and admits that he had been drinking.  He also believed that his friend Jarrah was hostile towards him.  Dr Fama stated Mr Wallace had told him:

“I was readin’ his mind.  He was callin’ me a gay cunt and stuff, runnin’ me down … he kicked me in the head three times.  I tried to punch him … I jumped in the car and took off.  I was pretty pissed off, thought I might speed and have a crash.  Suicidal.”

1. Mr Wallace remembers speeding through the city and the outskirts and losing control of the car when he considered he was probably driving at 120 kph.  Dr Fama stated that Mr Wallace told him that at the time he committed the offences he gave no thought as to whether what he was doing was right or wrong. 

1. Dr Fama also gave evidence at the hearing.   Dr Fama considered that the history indicates that at the time Mr Wallace was afflicted by a mental disease however the information in Dr Fama’s view was that it did not establish that his disease would have been sufficient to deprive him of a capacity.  Rather Dr Fama saw Mr Wallace’s actions as accounted for in terms of both his paranoid thinking and his concomitant intoxication. 

1. Dr Farmer considered that if there was a deprivation of the capacity to control his actions or know that he ought not do the act, then alcohol might equally have caused that.  Dr Fama considered that a blood alcohol reading of 0.165 at the time of the offences indicated he was vastly intoxicated at the time.   He considers that Mr Wallace was not deprived of capacity by mental illness alone given this level of intoxication.

1. Dr Fama conceded however that Mr Wallace was seriously psychotic at the time of the offence and that the psychotic illness would have had an impact on his capacity to know the wrongness of his action.   He considered that the alcohol would have significantly contributed to the deprivation to control his actions. 

1. Dr Fama did not consider there was a defence of unsoundness of mind under s 20 of the Code available. 

The Views of the Assisting Psychiatrists

1. Dr Varghese considers that the issue of alcohol intoxication is a vexing issue in this case.  Dr Varghese considers that Mr Wallace clearly had a long history of schizophrenia which has been present for some time given his admissions around the time of the alleged offences.  Dr Varghese stated there was a persistence of psychotic symptoms and the update from Ms Broderick notes continuing auditory and tactile hallucinations continue to this date. 

1. Dr Varghese considers that Mr Wallace was clearly psychotic at the time of the offences but also that he had a high level of alcohol in his system at the time.  The psychotic symptom that was operating was that he believed his friend could read his mind.  Dr Varghese considered that the question is “What would alcohol do to the persecutory thinking?”  Dr Varghese said that alcohol did not cause the persecutory symptoms and that those persecutory symptoms continued without alcohol.  Dr Varghese also stated Mr Wallace had also acted on these symptoms in the past. 

1. Dr Varghese advised that there is little research data on the interaction between alcohol and persecutory symptoms.  Dr Varghese noted that Dr Farma considered that alcohol would intensify the persecutory thinking, but that Dr Drummond did not think alcohol would necessarily intensify the persecutory thinking.  Overall, Dr Varghese considered that Mr Wallace was psychotic at the time of the commission of these alleged offences and that that level of psychosis would explain his behaviour. 

1. Dr Varghese considered that when looking at the longitudinal history as well as the persistence of his symptoms over a number of years, he considered that the psychotic symptoms alone would have deprived Mr Wallace of the relevant capacity and he considered he was accordingly of unsound at the time of the commission of the offences. 

1. Similarly, Dr McVie agreed that there was a fine line in this case.  Dr McVie agreed that the history including the previous criminal history indicates that there has been similar offending in the past.  Dr McVie however considers that his illness was undiagnosed and untreated until after the alleged offences were committed.  Dr McVie considered that Mr Wallace was only diagnosed after his admission for these offences. 

1. In her view Mr Wallace had chronic paranoid schizophrenia and he was accordingly extremely psychotic at the time of these alleged offences.  She considered that Mr Wallace’s illness alone was sufficient to deprive him of the capacity at the time of the actions.

Conclusion

1. In coming to an appropriate conclusion in this matter I have taken into account the views of the assisting psychiatrists as well as the views of the reporting psychiatrists. 

1. Ultimately, I accept the views of Dr Drummond and the views of the assisting psychiatrists.  I consider that at the time of the offence, Mr Wallace was suffering from a psychotic illness and that the derivation of his belief about his friend arose in the context of his ongoing paranoia which arose from his illness alone. 

1. Accordingly, I am satisfied that the illness alone deprived him of the capacity to know he ought not do the act. I consider a defence of unsoundness of mind is available to Mr Wallace. I am therefore satisfied he was of unsound mind within the definition in Schedule 2 of the Act.

1. I also consider a forensic order is required and should be in the terms of the submission of the Director of Mental Health.