Re Wright

[2014] QMHC 9

MENTAL HEALTH COURT

CITATION:

Re Wright [2014] QMHC 9

PARTIES:

REFERENCE BY THE DIRECTOR OF MENTAL HEALTH IN RESPECT OF DAMALI PETER WRIGHT

FILE NO/S:

194 of 2011

DELIVERED ON:

19 September 2014

DELIVERED AT:

Brisbane

HEARING DATE:

3 June 2014, 29 August 2014

JUDGE:

Boddice J

ASSISTING PSYCHIATRISTS:

Dr J M Lawrence
Dr J J Sundin

ORDERS:

There is a dispute of fact within the meaning of s 268 of the Mental Health Act 2000 in relation to the alleged offence of additional acts intended to cause grievous bodily harm or transmit serious disease on 27 October 2010.1.  

The Defendant is fit for trial in respect of that alleged offence.2.  

The proceeding in respect of that alleged offence is to proceed according to law.3.  

The reports are to be released to the parties in the criminal proceeding in respect of that alleged offence.4.  

In respect of the alleged offences of breach of an order and contravene a direction on 13 December 2011, stealing on 8 January 2012 and common assault on 9 January 2012, the Defendant was suffering from unsoundness of mind as defined in the Schedule to the Mental Health Act 2000.5.  

The Defendant is to be detained, pursuant to a forensic order, to the Mackay Authorised Mental Health Service.6.  

Limited community treatment is approved, at the discretion of the authorised psychiatrist, on the conditions set out in the draft forensic order proffered by the Director of Mental Health.7.  

Copies of the reports, and of the transcript, are to be provided to the parties, to the treating team, to the Mental Health Review Tribunal and to the Attorney-General.8.  

9.   The determination of the Defendant’s mental condition in respect of each of the remaining offences the subject of the amended references is adjourned to a date to be fixed.

CATCHWORDS:

MENTAL HEALTH – DECLARATION OR FINDING OF

MENTAL ILLNESS OR INCAPACITY – where the defendant is charged with various offences over a 15 month period – where it is not in dispute there ought to be a finding the defendant was of unsound mind at the time of alleged offences of breach of an order and contravene a direction, stealing and common assault – where it is not in dispute there is a need for further evidence before a determination can be made in respect of the offences alleged to have been committed between 27 October 2013 and 16 January 2014 – - whether, in respect of an alleged offence of additional acts intended to cause grievous bodily harm or transmit serious disease, a dispute of fact exists within the meaning of s 268 of the Mental Health Act 2000 – whether, in the event there is no dispute of fact in respect of the alleged offence of additional acts intended to cause grievous bodily harm or transmit serious disease, the defendant was of unsound mind at the time the alleged offence took place – whether, in respect of the alleged offence of additional acts intended to cause grievous bodily harm or transmit serious disease, the defendant is fit for trial

Mental Health Act 2000, s 268

COUNSEL:

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

C Kelly for the Director of Public Prosecutions

SOLICITORS:

Legal Aid Queensland for the defendant
Crown Law for the Director of Mental Health

The Director of Public Prosecutions (Qld)

1. BODDICE J: By amended references, this Court has had referred to it the mental condition of Damali Peter Wright at the time of various offences alleged to have been committed between 27 October 2010 and 16 January 2014.

1. It is not in dispute that there ought to be a finding the Defendant was of unsound mind at the time of alleged offences of breach of an order and contravene a direction on 13 December 2011, stealing on 8 January 2012 and common assault on 9 January 2012.  It is also not in dispute there is a need for further evidence before any determination can be made in respect of the offences alleged to have been committed between 27 October 2013 and 16 January 2014. 

1. What is in dispute is the Defendant’s state of mind at the time of an alleged offence of additional acts intended to cause grievous bodily harm or transmit serious disease on 27 October 2010. There are also the issues of fitness for trial in respect of that alleged offence, and whether there is a dispute of fact within s 268 of the Mental Health Act 2000 (“the Act”).

Background

1. The Defendant was born in Tanzania on 15 August 1983.  She is married and has three children.  She has resided in Australia for approximately seven years. 

1. The Defendant first came to the attention of Mental Health Services in June 2008 when she presented with a manic episode characterised by increasingly bizarre behaviour.  She reported psychotic symptoms, and exhibited poor insight into the existence of any mental condition.  The Defendant was diagnosed as suffering from Bipolar Affective Disorder.  She was treated with medication, and discharged after a period as an inpatient.

1. Since 2008, the Defendant has had a number of admissions to mental health units for episodes relating to her Bipolar Affective Disorder.  These episodes have often occurred against a background of non-compliance with medication, and a corresponding increase in her bizarre behaviour.  The Defendant also has a history of alcohol and substance abuse.

1. The Defendant has exhibited a continuing lack of insight into the existence of any mental illness, and the need for treatment.  As a consequence, the Defendant has been the subject of involuntary treatment orders in the past.

Alleged offence

1. It is alleged that early on the afternoon of 27 October 2010, police were called to the Defendant’s residence in relation to an alleged break in.  Upon arrival, police observed an 11 year old male child with his left wrist three-quarters severed.  On the kitchen bench was a blood-stained butcher’s knife.  Examination of the victim revealed no defence wounds, and there was no clinical evidence to suggest the victim had fought off an assailant.  Medical opinion was that the injury to his wrist was caused either by the child’s arm being held and a sharp non-serrated knife being dragged across the wrist in a single action or by the child’s arm being held on a surface and “chopped” using an instrument with a sharp edge.

1. The Defendant gave a version of events in the course of her telephone conversation seeking police assistance, and whilst police were at the residence.  The Defendant said that some days prior, the victim had come to her house asking for work.  She declined to give him a job.  A few days later the boy returned and asked if he could use the toilet.  She refused him access.  The Defendant stated that in the days after the boy first came to the house she noticed things were missing from the house.  This included cigarettes and her video camera.  The Defendant became concerned things were being stolen from the house.  She called police who attended the residence but, in the Defendant’s view, the police did not take any action.

1. The Defendant said a day or two after she had first spoken to police she was at home when she saw the boy outside.  She watched him jump the fence into her backyard.  The Defendant telephoned police and told them the boy was at the residence.  The boy then entered her house.  The Defendant confronted him in the kitchen.  The boy picked up a large butcher’s knife from the bench and threatened her with it.  The Defendant said she was afraid and feared he could kill her.  She felt a strong need to defend herself.  A struggle ensued and the boy’s arm was accidently cut.  Police arrived shortly thereafter.

1. The Defendant attended the Mackay police station on the day of the incident.  She declined a recorded interview.  Later that evening, police received a statement from a female witness to the effect the Defendant had admitted to dragging the male child into her kitchen and confronting him about a stolen video camera.  The Defendant also had admitted to grabbing the child by the arm, and slicing it with a meat cleaver.  The Defendant said “that is how it’s done in Africa”.

1. Police interviewed the alleged victim.  He said that on the day of the incident he had gone to wait for a friend outside a lady’s house.  The friend was not there so he jumped a six foot high fence to have a look out the back.  The Defendant came out the back door and dragged him inside the house.  When in the kitchen, the Defendant grabbed a butcher’s knife and asked for her video camera.  He denied stealing the camera but said it had been stolen by his brother.  The Defendant swung the knife before grabbing him by his left hand and holding it down as she brought the butcher’s knife down from behind her head in a downward motion.  The Defendant then dragged him outside.  Police arrived shortly thereafter.

Treating psychiatrist

1. At the time of the alleged offence, the Defendant was under the clinical care of Dr O’Sullivan.  He did not see the Defendant at or around the time of the alleged offence.  He did see her later.  Her mental state at that time was noted as stable.  It appears Dr O’Sullivan was not aware the Defendant had been charged in relation to the alleged incident until some months after the alleged incident. 

1. According to Dr O’Sullivan’s report, the Defendant attended an appointment with him on 31 August 2014.  He admitted her to hospital at that time due to a deterioration in her mental state.  She was noted to have elevated mood, poor sleep, disinhibited behaviour and was erratic.  She was not taking her oral medication.  The Defendant was discharged on 12 October 2010.  Her medications on discharge included anti-psychotic medication by depot injection, although the Defendant later refused any further depot injections.

1. Dr O’Sullivan gave evidence that in his opinion the Defendant’s mental illness at the time of the alleged offence was being inadequately treated, and was such that she was deprived of the capacities to control her actions, and to know that what she was doing was wrong.  The difference in the version of events supplied by the Defendant to that alleged by the victim was also as a consequence of the Defendant’s mental illness.  She was in a heightened sense of alert because she believed she had been the subject of theft.  She also had a persecutorial view of the world.  The Defendant was so unwell at the time of the alleged offence her paranoid thoughts informed her version of events. 

Reporting psychiatrists

1. Dr Voita examined the Defendant and her husband on 17 November 2011.  At that time the Defendant answered questions appropriately and her speech was normal in rate and rhythm.  There was no evidence of formal thought disorder.  The Defendant denied the presence of auditory hallucinations, delusions and other psychotic phenomena.  There was no evidence of passivity phenomena.  The Defendant, however, exhibited very limited insight into her illness, or the need for treatment.  She did not accept she suffered from a mental illness or required treatment.

1. In her report, Dr Voita opined, the Defendant suffers from a mental illness, namely, Bipolar Affective Disorder with Manic Episodes.  It was first diagnosed in 2008 and the Defendant has had a number of hospital admissions since that initial diagnosis.  At times she has required seclusion.

1. Whilst Dr Voita accepted the Defendant suffered from a mental illness, Dr Voita opined the Defendant was not mentally unwell at the time of the alleged offence, and was not deprived of any of the relevant capacities.  There was no evidence in the police material that she behaved in a bizarre or disinhibited manner.  There was no suggestion her actions at the time of the alleged offence were secondary to the presence of an active mental illness.  Dr Voita noted the Defendant had consistently disputed the facts.  In her opinion, the dispute of fact was not secondary to the presence of a mental illness.  Dr Voita considered the Defendant to be fit for trial.

1. Dr Voita maintained those opinions in evidence.  Dr Voita explained that whilst the Defendant was not free from her illness at the time of the alleged offence, she was not exhibiting any manic symptoms.  The recording with police did not exhibit any severe signs of manic illness.  If a person is manic, it is usually maintained over a period of time.  Dr Voita found it hard to reconcile the Defendant would have been exhibiting the florid symptoms of her mental illness at the time of the alleged offence but present the way she did with police shortly thereafter.

1. Dr Voita opined the dispute of fact was not as a consequence of the Defendant’s mental illness.  The Defendant had given the same account at various times.  If the Defendant’s version of events derived from her mental illness, it would be expected differing accounts might be given. 

1. Dr Voita did not accept the Defendant was unmedicated on the day in question.  She had had a depot injection prior to discharge from hospital some two weeks earlier.  A failure to be compliant with oral medication thereafter would not result in her instantaneously becoming unwell.  Dr Voita noted the Defendant’s medical team did not admit her to hospital when she was seen by them after the incident.  She was not admitted to hospital until 2012.

1. Dr Grant examined the Defendant on 2 December 2011.  On interview, her speech and thought were noted to be normal.  She did not appear pervasively depressed nor was she pervasively elevated in mood.  There was no definite presence of any psychotic features, although she did appear to have possibly paranoid beliefs in relation to the behaviour of her husband and others.

1. In his report, Dr Grant opined that notwithstanding the matters raised by Dr O’Sullivan in his report, the Defendant did not give a history of significant symptoms of mental illness at the time of the alleged offence.  While she was not taking her oral medication, she had received a depot injection one month prior to the episode.  Her behaviour at the scene after the alleged offence did not demonstrate any significant symptoms of hypomania.

1. Further, the audio recordings of conversations at the scene by police revealed the Defendant was calm in her interactions.  Her speech was normal in speed with no pressure.  She gave an account similar to that provided on interview with Dr Grant.  She told police “I cut him, he took my knife, a big knife from the kitchen, he was going to cut me anyway”.  Whilst police were at the scene the Defendant rang her husband.  She gave a similar account.  She gave the same account to a friend of the husband when he arrived at the scene.

1. In Dr Grant’s opinion, whilst the Defendant has a diagnosis of Bipolar Affective Disorder, there was no evidence at the time of the alleged offence of active illness of any significance, and there was no basis to find her illness deprived her of any of the relevant capacities.  Dr Grant also noted the Defendant had consistently given an account at variance to the victim’s account.  In his opinion, the difference in account did not arise as a consequence of the Defendant’s mental illness.  Dr Grant considered the Defendant otherwise fit for trial.

1. Dr Grant maintained these opinions in evidence.  He noted Bipolar Affective Disorder is an episodic illness.  Persons with that illness can go for some time with no symptoms being present.  Although the Defendant had on occasions in the past been floridly manic necessitating admission to hospital, her condition fluctuated.  Whilst the Defendant had not been compliant with her medication following her discharge from hospital before the alleged offence, the Defendant’s condition had settled prior to that discharge, and she was regarded as well enough to be discharged.  Further, the Defendant did not appear to exhibit signs of mania when interviewed by police, and she was not admitted to hospital following the alleged incident.  She was not admitted until many months later. 

1. Dr Timmins interviewed the Defendant on 22 March 2013.  At that time, the Defendant was being managed under an involuntary treatment order.  She was receiving medication by depot injection.  The Defendant reported feeling “quite well”.  She denied any suicidal thoughts or intent, and any thoughts or intent to harm others.  There were no psychotic symptoms and no evidence of a pervasive mood disturbance at the time of the interview.

1. In her report, Dr Timmins opined the Defendant suffered from a mental illness, namely, Bipolar Affective Disorder.  Her symptoms included irritability, euphoria, elevated mood, pressured speech, racing thoughts, poor sleep, high energy levels, increased spending, impulsivity, flamboyant dress, aggressive behaviour and sexually disinhibited behaviour.  She also had ideas of reference, persecutorial beliefs and auditory hallucinations.  She had episodes of depression, which included suicidal thoughts and attempts, in addition to manic episodes. 

1. In Dr Timmins’ opinion, the Defendant had been very unwell over the entire 15 month period the subject of the alleged offences in the amended references.  Her compliance with medication had been poor.  Whilst the alleged offences were not driven by psychotic symptoms, such as delusional beliefs or auditory hallucinations, the Defendant had evidence of elevated mood, irritability and extreme impulsivity which led to poor judgment over those many months.  It is likely her impulsivity and manic symptoms contributed to the commission of the offences.

1. Dr Timmins opined that on the balance of probabilities, the Defendant was completely deprived by reason of her mental illness, of the capacity to know she ought not do the acts in question.  Dr Timmins noted there was a substantial dispute of fact.  In her opinion, it was arguable this dispute was due to her mental illness, or at least her misunderstanding of events over the course of the offences when she was unwell.  Dr Timmins considered the Defendant fit for trial.

1. Dr Timmins maintained these opinions in evidence.  Dr Timmins opined that at the time of the alleged offence, the Defendant was effectively unmedicated and the presence of the alleged victim would have been viewed by her against a background of increasing vigilance and concern as to her situation.  The fact the Defendant was calm when police arrived was explicable by reason she was at that time, in the company of those who could provide her safety.  Her level of arousal would certainly have decreased as a consequence of less stress. 

1. Dr Timmins further opined that at the time of the alleged offence the Defendant had an almost complete inability to understand the gravity of the situation, which pointed towards the nature of her capacity to reason at that time.  The dispute of fact was a direct result of the Defendant’s mental illness.  Her symptoms of mania, including persecutorial beliefs, resulted in the Defendant perceiving the presence of the alleged victim as part of a home invasion.  Dr Timmins did not accept that symptoms of mania should have been evident in the police recorded versions on the day.  However, she noted the Defendant was loud and speaking very fast in those recordings.

Assisting psychiatrists

1. Dr Sundin advised I ought to accept the Defendant suffers from a significant Bipolar Affective Disorder which was “quite brittle” and difficult to control.  The illness was characterised by episodes of hypomania and mania, with the condition aggravated by non-compliance with medication and abuse of alcohol and cannabis.

1. Dr Sundin advised the contemporaneous police material provided no evidence of hypomania or mania at the time of her discussions with the police.  Further, the Defendant had consistently expressed a version of events that differed from the complainant’s version.  That dispute did not arise out of a disturbed mental state.

1. Dr Lawrence advised the evidence supported a finding the Defendant suffered from a Bipolar Affective Disorder which was obviously very severe.  However, there was a clear dispute of fact in relation to the alleged offence.  Dr Lawrence advised I ought otherwise accept the opinion of Dr Grant that whilst the Defendant suffers from a mental illness, that mental illness did not deprive her of any requisite capacity at the time of the alleged offence.

Submissions

1. The Defendant submits the essential question for the Court to determine was whether the nature and extent of the Defendant’s illness at the time of the alleged offence was sufficient to have governed her thinking such as to inform the version of events she supplied to police.  Dr Timmins’ opinion, that the dispute of fact arose as a consequence of the Defendant’s mental illness, ought to be accepted as that opinion was informed by a lengthy interview, and after obtaining a very detailed history which included evidence of the nature and extent of the Defendant’s illness at the time.  The evidence of Dr O’Sullivan was also significant.  He was the Defendant’s treating psychiatrist, and able to interpret the Defendant’s behaviour at the time of the alleged offence in the context of her longitudinal history.

1. The Director of Public Prosecutions submits there is a dispute of fact, within the meaning of s 268 of the Act. Further, there is no evidence the Defendant’s mental illness was sufficient to deprive her of any of the requisite capacities at the time of the alleged offence.

Discussion

1. There is no doubt the Defendant suffers from a significant, longstanding mental illness.  That mental illness, properly diagnosed as Bipolar Affective Disorder, is characterised by manic episodes when the Defendant is unwell.  I accept the Defendant has a past history of poor compliance with medication, consequent upon a lack of insight into the existence of her mental illness, and the need for treatment.  However, I do not accept the Defendant’s mental illness was such that she was exhibiting signs and symptoms of mania on the day in question.

1. On this issue, I found the evidence of Dr Grant and Dr Voita highly persuasive.  Their opinions, that the Defendant was exhibiting no signs of active mania at the time of the alleged offence, were supported by the objective evidence.  Nothing in the Defendant’s presentation to police on the day in question, and her recorded accounts of the events, supported the existence of mania. 

1. Importantly, their opinions gave proper regard to the significance of the consistent version given by the Defendant to police, to her husband and to her husband’s friend, as to the circumstances of the alleged offence.  That consistency is contrary to a conclusion the Defendant was suffering florid symptoms of mania at the time of the alleged offence.

1. Once it is accept the Defendant was exhibiting no symptoms of mania at the time of the alleged offence, the Defendant’s inconsistent version of events is properly to be considered a dispute of fact within the meaning of s 268 of the Act. It is a dispute which raises a reasonable doubt as to whether the Defendant committed the alleged offence.

1. I am satisfied that dispute of fact does not arise out of the Defendant’s mental illness.  The consistency of her accounts is contrary to a finding the Defendant’s account is explained by her perception of events, in the context of her mental illness.  I am satisfied she was not exhibiting mania or the symptoms of it on the day in question.

1. Whilst Dr O’Sullivan opined to the contrary, and had the advantage of being the Defendant’s treating psychiatrist, I did not find his evidence persuasive.  His conclusion the Defendant was psychiatrically unwell at the time of the alleged offence involved a retrospective analysis based on his belief the Defendant, at the time of her discharge approximately two weeks before the alleged offence, was still unwell and her medication was insufficient to maintain her illness. 

1. That conclusion appears inconsistent with Dr O’Sullivan’s notes when he reviewed the Defendant in the months following the alleged offence.  It was some months before it was considered necessary for the Defendant to be hospitalised again.  More importantly, Dr O’Sullivan’s retrospective analysis is not supported by the objective evidence as to the Defendant’s presentation on the day in question.  That objective evidence provides no support for a conclusion the Defendant was exhibiting manic symptoms.  To the contrary, she provided a clear consistent account, whilst exhibiting no florid symptoms of mania.

1. Similarly, although Dr Timmins may have had the advantage of a lengthier interview with the Defendant than the other reporting psychiatrists, I did not find her evidence persuasive.  Her opinion was based on a belief the Defendant’s mental illness was insufficiently medicated at the time of the alleged offence.  Dr Timmins’ opinion also was based on a conclusion the Defendant was psychiatrically unwell over an entire 15 month period.  That conclusion was inconsistent with the objective evidence on the day of alleged offence.

1. If I am wrong in the conclusion there is a dispute of fact within the meaning of s 268 of the Act, I accept and prefer the opinions expressed by Dr Grant and Dr Voita that at the time of the alleged offence the Defendant’s mental illness was not such as to deprive her of any of the requisite capacities. The objective evidence does not support the existence of mania or other symptoms on the day in question, or any deprivation of any of the relevant capacities. In that event, I would be satisfied, on the balance of probabilities, the Defendant was not suffering from unsoundness of mind at the time of the alleged offence on 27 October 2010.

1. All of the reporting psychiatrists opine the Defendant is fit for trial.  The most recent report from her treating team supports a finding the Defendant is fit for trial.  I accept those opinions.  I am satisfied the Defendant is fit for trial in respect of that alleged offence on 27 October 2010.

Conclusions

1. In respect of the alleged offence on 27 October 2010, there is a dispute of fact within the meaning of s 268 of the Act. As the Defendant is fit for trial, the proceeding for that offence should continue according to law.

1. In respect of the alleged offences on 13 December 2011, 8 January 2012 and 9 January 2012, I accept Dr Timmins’ evidence that the Defendant was, as a consequence of her mental illness, deprived of at least one of the requisite capacities.  The Defendant was suffering from unsoundness of mind at the time of each of those alleged offences. 

1. In respect of future management, having regard to the brittle nature of the Defendant’s longstanding mental illness, and the risk to the community from her lack of insight into the need for ongoing treatment, I am satisfied there is a need to impose a forensic order.  The Defendant should, however, be granted approved limited community treatment, at the discretion of the authorised psychiatrist, on the conditions set out in the draft proffered by the Director of Mental Health.

1. In respect of the remaining alleged offences, there is a need for additional evidence.  A determination of the Defendant’s mental condition in respect of the remaining alleged offences should be adjourned to a date to be fixed.

Orders

1. There is a disputed fact within the meaning of s 268 of the Mental Health Act 2000 in relation to the alleged offence of additional acts intended to cause grievous bodily harm or transmit serious disease on 27 October 2010.

2.          The Defendant is fit for trial in respect of that alleged offence.

3.          The proceeding in respect of that alleged offence is to proceed according to law.

4.          The reports are to be released to the parties in the criminal proceeding in respect of that alleged offence.

5.          In respect of the alleged offences of breach of an order and contravene a direction on 13 December 2011, stealing on 8 January 2012 and common assault on 9 January 2012, the Defendant was suffering from unsoundness of mind as defined in the Schedule to the Mental Health Act 2000.

6.          The Defendant is to be detained, pursuant to a forensic order, to the Mackay Authorised Mental Health Service.

7.          Limited community treatment is approved, at the discretion of the authorised psychiatrist, on the conditions set out in the draft forensic order proffered by the Director of Mental Health.

8.          Copies of the reports, and of the transcript, are to be provided to the parties, to the treating team, to the Mental Health Review Tribunal and to the Attorney-General.

9.          The determination of the Defendant’s mental condition in respect of each of the remaining offences the subject of the amended references is adjourned to a date to be fixed.