Re Wilson
[2011] QMHC 15
•6 July 2011
MENTAL HEALTH COURT
CITATION:
Re Wilson [2011] QMHC 15
PARTIES:
REFERENCE BY THE DIRECTOR OF PUBLIC PROSECUTIONS IN RESPECT OF COLIN BERNARD WILSON
PROCEEDING:
No 0071 of 2010
DELIVERED ON:
6 July 2011
DELIVERED AT:
Brisbane
HEARING DATE:
16 June 2011
JUDGE:
Boddice J
ASSISTING PSYCHIATRISTS:
Dr McVie
Dr Khoo
FINDINGS AND ORDERS:
At the time of the alleged offence, the defendant was of diminished responsibility;1.
The defendant is fit for trial, 2.
The proceedings against the defendant for manslaughter continue according to law. 3.
CATCHWORDS:
MENTAL HEALTH – DECLARATION OR FINDING OF MENTAL ILLNESS OR INCAPACITY – where defendant charged with murder of mother – where defendant unsuccessfully attempted suicide – whether defendant suffered from “abnormality of mind” – whether Acute Adjustment Disorder an inherent cause – whether abnormality of mind substantially impaired defendant’s capacity to know that he ought not do the act - whether defendant was of diminished responsibility at the time of the offences
Criminal Code Act 1899 (Qld)
Mental Health Act 2000 (Qld)
HM Advocate v Braithwaite 1945 J.C. 55
McDermott v Director of Mental Health; Ex parte Attorney General (Qld) (2007) 175 A Crim R 461
Re CWB [2003] QMHC 012
Re Day [2008] QMHC 25
R v Byrne [1960] 2 QB 396
R v Dietschmann [2003] UKHL 10
R v Rolph [1962] Qd R 262
R v Whitworth [1989] 1 Qd R 437
COUNSEL:
Tate, J for the Director of Mental Health
Campbell, B for the Director of Public Prosecutions (Qld)
Henry S.C. for the defendant
SOLICITORS:
Crown Law for the Director of Mental Health
The Director of Public Prosecutions (Qld)
Gilshenan & Luton as Town Agent for Preston Law for the defendant
BODDICE J:
Colin Bernard Wilson (“the defendant”) is charged with murdering his 92 year old mother on 7 February 2008. It is alleged the defendant struck his mother in the rear of the head with a tyre leaver and then utilised a personal pocket knife to cut her throat, before stripping off his clothing and decamping into nearby bushland, where he attempted to commit suicide. The mother’s body was located by police on 9 February 2008. On 10 February 2008, at approximately 8:00am, the defendant was located by an SES search party.
By reference dated 1 April 2010, the Director of Public Prosecutions referred the question of the defendant’s mental health to this Court pursuant to Chapter 7, Part 4 of the Mental Health Court Act 2000 (Qld) (“The Act”). It is not in dispute that the defendant is presently fit for trial. The issue for determination, on the balance of probabilities,[1] is whether the defendant was of diminished responsibility when the alleged offence was committed.[2]
Background
[1]Mental HealthAct 2000, s 405
[2]Mental HealthAct 2000, s 267
The defendant was born on 26 July 1939. He has no prior criminal history and no history of mental illness or substance abuse. The defendant had been gainfully employed for 56 years and was an active member of the Mareeba community, where he and his wife lived happily for some 40 years prior to the incident in 2008.
Prior to the alleged offence, the defendant had been in a close relationship with his mother. He had been extensively involved in her care after she suffered from a progressive dementing illness. This illness had become severe and caused significant problems for those involved in her care, in particular, the defendant.
Despite these problems the defendant continued to care for his mother whilst she resided alone in a Council cottage. However, in the last few months before her death, she had started to wander and it was necessary to place her in nursing home care. This care was difficult to obtain due to her needs, necessitating numerous applications and negotiations on the defendant’s part. A nursing home was found in early February 2008.
The defendant’s account
According to the defendant, he was distressed by his mother’s deteriorating condition, and had had a difficult time trying to find a nursing home. He was greatly relieved when she was eventually admitted to the Fred Leftwich Nursing Home. On the afternoon of 7 February 2008, some five days after being placed in the nursing home, the defendant received information from the nursing home in relation to his mother’s difficult behaviour. When the defendant went to the nursing home, the nursing staff were obviously upset with her behaviour and he left believing it was unlikely his mother would be allowed to stay at the nursing home long term. He said nursing staff “didn’t want her”.[3] The defendant collected his mother and drove her to bushland.
[3]Report of Dr Heffernan, p 4
In records of interview, the defendant contended that he had intended to take his mother to the bush to try to settle her and convince her to stay in the nursing home. However, when they got there she immediately “trotted off up the road”. Upon realising he could not rationalise with her, the defendant “lost it”, deciding in a split second that his life was finished and that his mother’s life was finished too. He decided to kill his mother and himself. He admitted to feeling hopeless, angry and then relieved. He cut a length of rope and, after killing his mother, cut his own wrist, stabbed himself in the armpit and tried to hang himself from a tree branch. When that failed he lay there intending to starve himself to death. After two days, he heard searchers and walked from the bush to them. Collateral evidence indicates the defendant felt extreme remorse for what he had done. He again unsuccessfully attempted suicide in April 2010.
Medical Evidence
Cairns Base Hospital
After he was located, the defendant was treated medically and admitted to the Orthopaedic Ward in the Cairns Base Hospital. The discharge summary written by Dr Mason on 25 February 2008, indicated the defendant had a left wrist laceration, left forearm stab incision, a superficial laceration to the right groin and there was evidence of attempted hanging. The defendant was also assessed by a Psychiatric Registrar, Dr Anderson, on 12 February 2008, who suggested there was no clear evidence of a pervasive mood disorder or other mental illness that preceded his suicide attempt. A further inpatient psychiatric assessment report written on 13 February 2008 by Dr Bayley, concluded there was no evidence of psychiatric disorder and the defendant did not represent an ongoing risk to himself or others.
Dr James
The defendant was seen and assessed by Dr James on 4 September 2009. Dr James made a diagnosis of Dissociation at the material time. Dr James relied upon a description of that diagnosis given in the DSM IV, namely “a disruption in the usually integrated functions of consciousness, memory, identity, or perception of the environment that may be sudden or gradual, transient or chronic”.[4] Dr James considered the defendant’s behaviour was a complete or extreme reversal of his habitual characteristics, which was a “dramatic, quite abrupt and transient transformation”. Dr James opined that the defendant’s state of mind followed upon the exhaustion, over time, of his coping capacities, and was precipitated by the particular nature and vicissitudes of the stressors to which he was exposed, resulting in an uncontrollable impulse. Although the defendant had some degree of basic sense that the killing of his mother was wrong, the impulse to kill her and to take his own life were indivisible. This represented to him, at the relevant time, the only possible course of action.
[4]Diagnostic and Statistical Manual, 4th Edition, of the American Medical Association
Dr Reddan
In her report dated 21 March 2010, Dr Reddan concluded that Dr James’ diagnostic advice was theoretically correct. However, Dr Reddan cautioned that Dissociation, which may also be regarded as a psychological defence mechanism, usually occurs in those who have been prone to Dissociation as the result of severe childhood or adult trauma and that none of those features were present in the defendant’s case. Dr Reddan nevertheless accepted that the victim’s behaviour in light of her dementia must have been both worrying and frustrating for the defendant.
Dr Reddan opined that the defendant was a person who has an “over control of his emotions”. The difficultly in dealing with his mother’s cognitive decline and the likely rejection of her continued residence by the nursing home may have created a sense of powerlessness, leading to an explosion of despair culminating in the impulsive act. Dr Reddan noted, in conclusion, that this raised the possibility that at the time of the alleged offence, the defendant was suffering from an abnormality of mind which may have substantially impaired one of the three capacities specified in s 304A of the Criminal Code Act 1899 (Qld) (“Criminal Code”).
Dr Heffernan
The defendant was assessed by Dr Heffernan on 7 September 2010. Dr Heffernan provided a report dated 8 September 2010 giving a provisional diagnosis of an Acute Adjustment Disorder. Dr Heffernan surmised that despite the defendant’s relatively positive self account, it was likely he was suffering from anxiety and distress during the period leading up to the incident as a result of significant life stressors. In his opinion, the defendant was not suffering from a major mental illness, nor was he deprived of any of the relevant capacities for the purposes of s 27 of the Criminal Code. However, the defendant was suffering from overwhelming emotional distress, to an extent that constituted an abnormal state of mind at the time of the events. As a result of the defendant’s overwhelming state of hopelessness and grief, he was substantially impaired of the capacity to know that he ought not do the act.
Dr Heffernan maintained in evidence that the defendant was suffering from an abnormality of the mind at the time of the alleged offence.[5] The abnormality of mind arose in the context of the defendant having inherent personality traits, namely, difficulties in expressing, articulating and understanding emotions.[6] In that personality construct, the significant stressors of his mother’s deteriorating health impacted on his mental health leading to an abnormality of mind, namely, an Acute Adjustment Disorder.[7] This abnormality of mind substantially impaired his capacity to know that he ought not do the act.[8] Dr Heffernan summarised the position as follows:
“… Mr Wilson has a vulnerability to responses in stress that has – that had not become apparent throughout his life. He had a personality style that – that dealt with stress in a certain way, but when you had the application of a particular stressor at the same time as this inherent vulnerability, it was the combination of the factors that led to the – the abnormality of mind and the impaired capacity.”
[5]T 1-3/50, T 1-22/10
[6]T 1-6/22; T 1-10/30; T 1-18/20
[7]T 1-6/20-40
[8]T 1-7/35, T 1-10/50, T 1-11/50, T 1-13/30-50
Dr Grant
Dr Grant assessed the defendant on 7 July 2010. In his report dated 20 July 2010, Dr Grant concluded that although the defendant was not subject to a major mental illness, at the precise time of the offence he was in a state of emotional decompensation as a result of his frustration, despair and hopelessness. Dr Grant concluded that at the time of the offence, the defendant was suffering from diminished responsibility. The defendant suffered an Acute Adjustment Disorder, evidenced by homicidal and suicidal behaviour, which substantially impaired his capacities to control his actions and to understand their wrongfulness.
In evidence, Dr Grant noted that while the defendant did not express clear signs of distress prior to the commission of the offence, collateral evidence would suggest he was in fact agitated, anxious and not coping.[9] This was quite consistent with the defendant’s personality traits and coping style. He was a man with obsessional, conflict avoidant characteristics, who was eager to please and did not show negative emotions.[10] These inherent personality vulnerabilities left the defendant vulnerable to the significant stressors on him, leading to a psychological injury, namely an Acute Adjustment Disorder.[11] This disorder substantially impaired his capacity.[12]
[9]T 1-30/50, T 1-31/15, T 1-32/15
[10]T 1-26
[11]T 1-30/20; T 1-34/40; T 1-35/30
[12]T 1-29/45-55
Opinions of the Assisting Psychiatrists
Dr McVie advised the defendant exhibited clear symptoms of worry, sleep disorder and anxiety as a result of his “premorbid obsessional personality structure” and various external stressors, which evidenced “reactive depression” or what is classified in the DSM-IV as an Adjustment Disorder.[13] She advised the evidence of Dr Heffernan and Dr Grant was correct in that a disorder was present at the time of the alleged offences, namely an Adjustment Disorder, and it was sufficient to substantially impair the defendant’s capacity to reason his actions.[14]
[13]T 1-47/10-40
[14]T 1-47/50
Dr Khoo concurred with Dr McVie, that at the time of the alleged offence the defendant was suffering from an Acute Adjustment Disorder. She further noted that it was clear the defendant was overwhelmed with a sense of helplessness and despair in regard to his mother’s condition, and the possibility of a major depressive disorder could not be excluded.[15]
[15]T 1-48
Diminished Responsibility
“Diminished responsibility” is defined in the Schedule of the Act as “the state of abnormality of mind described in the Criminal Code, section 304A”.
Section 304A of the Criminal Code provides:
“When a person who unlawfully kills another under circumstances which, but for the provisions of this section, would constitute murder, is at the time of doing the act or making the omission which causes death in such a state of abnormality of mind (whether arising from a condition of arrested or retarded development of mind or inherent causes or induced by disease or injury) as substantially to impair the person’s capacity to understand what the person is doing, or the person’s capacity to control the person’s actions, or the person’s capacity to know that the person ought not to do the act or make the omission, the person is guilty of manslaughter only.”
What is required to be considered is whether at the relevant time:[16]
[16]R v Byrne [1960] 2 QB 396
(a) the defendant was suffering from an abnormality of mind, and
(b) that such abnormality of mind
(i) arose from a condition of arrested or retarded development of mind or any inherent causes, or was induced by disease or injury, and
(ii) was such as substantially impaired his mental responsibility for his acts in doing or being a party to the killing.
The term “abnormality of the mind” is not explained further by any statutory provision. In R v Byrne [1960] 2 QB 396, Lord Parker CJ at 403, described abnormality of mind as:
“A state of mind so different from that of ordinary human beings that the reasonable man would term it abnormal. It appears to us to be wide enough to cover the mind’s activities in all its aspects, not only the perception of physical acts and matters and the ability to form a rational judgment as to whether an act is right or wrong, but also the ability to exercise will power to control physical acts in accordance with that rational judgment.”
Lord Parker’s dictum was qualified by Hanger J in R v Rolph [1962] Qd R 262 at 288 in that a jury would need to be reminded:
“… that normal people in the community vary greatly in intelligence, and disposition; in their capacity to reason, in the depth and intensity of their emotions; in their excitability, and their capacity to exercise self restraint, etc., etc., the matters calling for mention varying with the facts of the particular case; and that until the particular quality said to amount to abnormality of mind, goes definitely beyond the limits marked out by the varied types of people met day by day, no abnormality exists”.
That approach has prevailed in Queensland.[17]
[17]R v Whitworth [1989] 1 Qd R 437 at 445; McDermott v Director of Mental Health; Ex parte Attorney-General (Qld) (2007) 175 A Crim R 461
The need for caution has been emphasised when considering a defence of diminished responsibility as:[18]
“… it will not suffice in law for the purpose of this defence of diminished responsibility merely to show that an accused person has a very short temper, or is unusually excitable and lacking in self-control. The world would be a very convenient place for criminals and a very dangerous place for other people, if that were the law. It must be much more than that.”
[18]McDermott v Director of Mental Health; Ex parte Attorney-General (Qld) (2007) 175 A Crim R 461 at 474 citing HM Advocate v Braithwaite 1945 J.C. 55 at 57-58
In R v Whitworth [1989] 1 Qd R 437 at 445-7, Thomas J noted there “are certain mental qualities and states of mind that for reasons of policy (mainly law and order) as much as the logic of the law will not allow to be put into the balance for the purpose of this exercise in legal accountability.” Normal propensities or emotions such as prejudice, anger, temper, jealousy, and the effects of intoxication are not abnormalities of the mind; nor are they to be regarded as valid contributing causes to an abnormal state of mind.[19]
Conclusion
[19]Re Day [2008] QMHC 25
Abnormality of mind
Having considered the evidence of Dr Heffernan and Dr Grant, and the report of Dr Reddan, I am satisfied the defendant’s emotional distress went beyond the catalogue of normal propensities or emotions. I accept the evidence of Dr Heffernan and Dr Grant that the defendant was suffering an abnormality of mind at the time of the commission of the alleged offence. An Acute Adjustment Disorder can constitute an abnormality of mind arising from a prescribed cause.[20] This was conceded by the Director of Public Prosecutions.[21]
[20]McDermott v Director of Mental Health; Ex parte Attorney-General (Qld) (2007) 175 A Crim R 461 affirming R v Dietschmann [2003] UKHL 10. See also, Re CWB [2003] QMHC 012 at [38] - [39] and Re Day [2008] QMHC 25 at [72]
[21]T 1-40/10
Inherent cause
The contentious issue in this case is whether that abnormality of mind “arose from an inherent cause”. The Director of Public Prosecutions contends the defendant merely suffered external stressors, and that any personality issue in response to the stressors were insufficient to constitute an inherent cause. However, both Doctor Heffernan and Doctor Grant gave evidence the abnormality of mind was derived from inherent causes, namely his personality traits and coping styles. The doctors opined that that inherent cause, having regard to the significant stressors resulted in abnormality of mind. I accept that evidence. The defendant’s action went beyond a person “cracking under environmental strains”.[22]
[22]T 1-17/50. See also T 1-15/15
Whilst caution is properly to be exercised when permitting vulnerability to stress to be recognised as an inherent cause,[23] I am satisfied, on the balance of probabilities, that the defendant’s state of abnormality of mind arose from an inherent cause.
[23]R v Whitworth [1989] 1 Qd R 437 at 447, 455
The final consideration is whether that abnormality of mind, arising from an inherent cause, was such as to substantially impair the defendant’s mental responsibility for the act in question. The capacity to know that one ought not do an act is the capacity to reason with a moderate degree of composure as to the moral rightness or wrongness of the act. It is not coterminous with knowing that the act is unlawful. It is not uncommon for someone to lack the capacity for moral reasoning at the same time as knowing an act is unlawful.[24] Dr Heffernan and Dr Grant both gave evidence the defendant’s capacity to know that he ought not do the act was substantially impaired. I accept that evidence.
[24]Re CWB [2003] QMHC 012 at [31]
I am satisfied, on the balance of probabilities, that the abnormality of mind the defendant was suffering at the time of commission of the alleged offence substantially impaired his mental responsibility for his actions in killing his mother.
Orders
I am satisfied, on the balance of probabilities, that at the time of the alleged offence the defendant was suffering an abnormality of mind, which arose from an inherent cause, and that that abnormality of mind substantially impaired his mental responsibility for his actions in killing his mother. That is sufficient to satisfy the requirements of s 304A of the Criminal Code, and so reduce the charge from murder to manslaughter.
There was no dispute the defendant was fit for trial. I am satisfied he is fit for trial.
I order:
1. At the time of the alleged offence, the defendant was of diminished responsibility;
2. The defendant is fit for trial,
3. The proceedings against the defendant for manslaughter continue according to law.