Re Wheeler

[2006] QMHC 21

MENTAL HEALTH COURT

CITATION:

Re Wheeler [2006] QMHC 21

PARTIES:

REFERENCE BY THE DEFENDANT’S LEGAL REPRESENTATIVE IN RESPECT OF NOEL BERNARD WHEELER

PROCEEDING NO:

No 69 of 2005

DELIVERED ON:

19 April 2006

DELIVERED AT:

Brisbane

HEARING DATE:

19 April 2006

JUDGE:

ASSISTING PSYCHIATRISTS:

Holmes J

Dr J F Wood
Dr D A Grant

FINDINGS AND ORDER:

1. The defendant was of unsound mind, as defined in the Mental Health Act 2000 (Qld) Schedule 2, in relation to the alleged offences of 20 July 2004, and a forensic order is made with certain conditions in respect of those alleged offences
2. The defendant was not of unsound mind, as defined in the Mental Health Act 2000 (Qld) Schedule 2, in relation to the alleged offences of 6 September 2004 and proceedings against the defendant on those charges are to be continued according to law
3. The defendant is fit for trial

CATCHWORDS:

MENTAL HEALTH – DECLARATION OR FINDING OF MENTAL ILLNESS OR INCAPACITY – where defendant charged with entering premises and committing an offence, assault occasioning bodily harm, common assault and wilful damage on 20 July 2004 and grievous bodily harm, common assault and breach of a domestic violence order on 6 September 2004 – where defendant suffers from schizophrenia – where he was intoxicated during alleged offences of 6 September 2004 – whether alcohol contributed to loss of any of the relevant capacities – whether the intoxication excludes a finding of unsoundness of mind under the Mental Health Act 2000 (Qld)

Criminal Code 1899 (Qld), section 27
Mental Health Act 2000 (Qld), schedule 2

COUNSEL:

Mr S Crofton for the defendant
Mr J Tate for the Director of Mental Health
Mr S Vasta for the Director of Public Prosecutions

SOLICITORS:

Legal Aid Queensland for the defendant
Crown Law for the Director of Mental Health
The Office of the Director of Public Prosecutions

1. HOLMES J:  Mr Wheeler is charged with entering premises and committing an offence on the 20th of July 2004, an assault occasioning bodily harm, common assault and wilful damage also on the 20th of July 2004, grievous bodily harm, common assault and breach of a domestic violence order on the 6th of September 2004. 

1. In relation to the events of the 20th of July 2004 there is no clear evidence that intoxication plays a part.  The evidence of both Dr Maguire and Dr Woolridge is that Mr Wheeler suffers from schizophrenia and there is a proper basis for supposing that psychosis deprived him of relevant capacities on that date.  I find that he was of unsound mind at the time that the offences of entering premises and committing an offence, assault occasioning bodily harm, common assault and wilful damage were allegedly committed on the 20th of July 2004. 

1. The events of the 6th of September 2004 are in a different category.  There is good evidence that Mr Wheeler had consumed a good deal of alcohol.  That evidence comes from his own record of interview with the police some two days later in which he said that he and his girlfriend Ms Mussig had drunk a 40 ounce bottle of rum between them; from the evidence of Ms Mussig herself about drinking the bottle of rum and getting drunk, the pair of them; and from Mr Wheeler's account to Dr Maguire, in which he spoke of consuming a bottle of rum.  It's not entirely clear whether he explained to her that his girlfriend had taken part in that consumption.  His account to Dr Woolridge may have been less frank or perhaps his recollection was less clear.  At any rate I'm satisfied that he did drink a considerable amount of rum and was intoxicated at the time of the events in question.

1. Unsound mind, as defined in the Mental Health Act 2000, means the state of mental disease or natural mental infirmity described in sections 27 of the Criminal Code, but it does not include a state of mind resulting to any extent from intentional intoxication or stupefaction. That means that I have to come to a conclusion about whether the state of mind that Mr Wheeler was experiencing on the date in question resulted to any extent from intoxication.

1. It is clear, I should say, that the account given to both Dr Woolridge and Dr Maguire by Mr Wheeler was one of hallucinations which would indicate that he was suffering from psychosis at the time.  Those hallucinations seem to have been about his relationship with his girlfriend although there does not seem to have been any command aspect.

1. Dr Woolridge took the view that the mental illness itself was sufficient to deprive Mr Wheeler of capacity.  As I've said I don't think that is the test; it's a relevant feature perhaps, but one also has to ask whether in the events in question alcohol in fact contributed.  Dr Maguire started, I think it's fair to say, from that view, but moved somewhat from it, if in fact the events described to her by Mr Wheeler were not delusional. 

1. And I should explain here that Mr Wheeler was charged with an assault of his de facto wife and also of another woman who was living with them.  The circumstances, as Ms Mussig, Mr Wheeler's de facto wife, explains them, were that they had been drinking that day; that about 5 p.m. she and the other woman were in the kitchen area; Mr Wheeler was putting his computer together in a corner of the dining room.  She and the other woman started kissing and when Mr Wheeler saw that from his position he, as she put it, "just snapped".  He set upon her and punched her and kicked her and in the course of those events also seems to have assaulted the other woman present.

1. That's consistent with the account that Mr Wheeler himself gave the police.  He expands on it a bit to say that there had previously been some discussion of a threesome and that annoyed him.  He gave a similar account to Dr Maguire of the behaviour of the two women.  Dr Maguire initially seems to have started from the position that that may have been delusional suspicion, but it would appear from Ms Mussig's account that there was a real basis to it. 

1. Both Dr Woolridge and Dr Maguire agreed that alcohol was likely to be disinhibiting so that it would have an impact on the capacity of control.  Dr Woolridge, although he concedes that in general terms the consumption of alcohol does impair judgment, was prepared to make a distinction in this case between the capacities so as to say that the capacity to know he ought not do the act might not be affected by the consumption of alcohol.  Dr Maguire, on the other hand, conceded the contribution of alcohol, to some extent, in impairing judgment, particularly given the reality of the trigger event that I've described. 

1. In all the circumstances of the case, particularly the reality of events that day, the consumption of alcohol, the circumstances involving the two women, while I can accept that psychosis was a very strong factor in what happened, I think inevitably one concludes that alcohol contributed to some extent in the deprivation of the relevant capacities. 

1. On the balance of probabilities I'm satisfied that alcohol contributed in the deprivation of the capacity of control and the capacity to know he ought not do the act by impairing his judgment so as to exclude any finding of unsoundness within the meaning of the Mental Health Act.  Mr Wheeler on the evidence is fit for trial.  The charges of grievous bodily harm, common assault and breach of the domestic violence order arising out of events on the 6th of September 2004 should proceed according to law. 

1. In respect of those matters of July 2004 in which I have made a finding of unsoundness, a forensic order is appropriate.  Mr Wheeler is detained to the Cairns District and Area Network Authorised Mental Health Service.  I approve limited community treatment to commence immediately on the conditions that he reside at 132 Pease Street, Manoora or at an address approved in advance in writing by the authorised psychiatrist; that he attend the adult community health service at 165 Sheridan Street, North Cairns for an appointment with Dr Overland on the 20th of April 2006 at 1 p.m.; that he attend all follow up appointments and in-patient care as required by the authorised psychiatrist; that he comply with the requirements of the authorised psychiatrist in relation to the taking of the prescribed medication and other treatment; that he refrain from using alcohol and illicit drugs and make himself available and co-operate fully in random medical tests for those substances as required by the authorised psychiatrist; and that he not drive a motor vehicle unless permitted to do so by the authorised psychiatrist.  I'll make it a further condition of the forensic order that Mr Wheeler have no contact with Brian Edward Flynn.