Re Zischke
[2013] QMHC 13
•22 October 2013
MENTAL HEALTH COURT
CITATION:
Re Zischke [2013] QMHC 13
PARTIES:
REFERENCE BY DEFENDANT’S LEGAL RESPRESENTATIVE IN RESPECT OF TREVOR ERNIE ZISCHKE
PROCEEDING:
No 0239 of 2012
DELIVERED ON:
22 October 2013
DELIVERED AT:
Brisbane
HEARING DATE:
19 June 2013
JUDGE:
Boddice J
ASSISTING PSYCHIATRISTS:
Dr E N McVie
Dr A S DavisonFINDINGS AND ORDER:
1. At the time of the commission of the alleged offence, the subject of the reference, the defendant was suffering from unsoundness of mind as defined in the Schedule to the Mental Health Act 2000.
2. The proceedings according to law against the defendant are discontinued and further proceedings must not be taken against the defendant for the acts constituting the alleged offence the subject of the reference.
3. The defendant be detained, pursuant to a forensic order, in the Park High Secure Program Authorised Mental Health Service.
4. There be no approved limited community treatment at this time.
5. A correctional officer escort the defendant to the Park High Secure Program Authorised Mental Health Service.
6. Copies of the reports, and of the transcript, be provided to the parties, to the treating team, and the Mental Health Review Tribunal.
CATCHWORDS:
MENTAL HEALTH – DECLARATION OR FINDING OF MENTAL ILLNESS OR INCAPACITY – where the defendant was charged with the murder of his wife – where the defendant reported suicidal ideation and suicide attempts in the weeks preceding the alleged offence – where the reporting psychiatrists opine the defendant was suffering a major depressive episode at the time of the alleged offence – where each of the reporting psychiatrists opine the major depressive episode completely deprived the defendant of the capacity to know he ought not to do the act of killing his wife – whether the defendant retained the capacity to reason about the wrongness of the act of killing his wife – whether defendant was of unsound mind as defined in the Schedule of the Mental Health Act 2000 (Qld) at the time of the alleged offence – whether a Forensic Order should be made – whether Limited Community Treatment should be approved
Criminal Code 1899 (Qld), s 27
DAR v DPP (Qld) & Anor[2008] QCA 309
Re HW [2008] QMHC 14
R v Porter (1933) 55 CLR 182
R v Stapleton (1952) 86 CLR 358
R v Schafferius [1987] 1 Qd R 381COUNSEL:
S L Kissick for the defendant
K A Parrott for the Director of Mental HealthS P Vasta for the Director of Public Prosecutions (Qld)
SOLICITORS:
McMillan, Kelly & Thomas for the defendant
Crown Law for the Director of Mental Health
Director of Public Prosecutions (Queensland)
By reference, filed 15 October 2010, the legal representatives for Trevor Ernie Zischke referred to this Court his mental condition at the time of an offence of murder, alleged to have been committed on 9 May 2012. The issue for determination is whether the defendant was suffering from unsoundness of mind or, alternatively, diminished responsibility at the time of the alleged offence. There is no dispute the defendant is fit for trial.
Background
The defendant was born on 1 January 1959. He was aged 53 at the time of the alleged offence. The victim was the defendant’s wife. They had been married for almost 30 years. They have two adult children. Prior to 9 May 2012, the defendant and his wife were in an apparently happy relationship.
The defendant has no history of any previous psychiatric condition. He denied any alcohol or substance abuse issues, and any previous forensic history. Close family members described the defendant as a patient, placid person who was level headed and a “voice of reason”.
In the months preceding May 2012, a number of detrimental events occurred in the lives of the defendant and his wife. The defendant’s wife suffered debilitating restrictions on her daily activities following a back injury in 2009. More recently, the defendant also suffered a lower back injury. He was unable to continue to operate a lawn mowing business he had conducted for some 10 years. The defendant sold this business and commenced searching for other work. That search had been unsuccessful. In the days before the alleged offence, the defendant had investigated the availability of Centrelink payments.
The defendant reports that these events caused him to fear for the future of his wife and himself. He became particularly concerned about financial and other pressures. He ruminated over their predicament. He lost a large amount of weight. He was unable to sleep. He saw their future as hopeless.
Alleged offence
In the early hours of 9 May 2012, the defendant’s wife was struck with a tow ball whilst lying in bed. It is alleged the defendant collected the tow ball from the garage area of the house, returned upstairs to the bedroom and struck his wife with it. When the wife made a noise, the defendant is alleged to have obtained a knife and stabbed her in the back.
When police located the deceased in her bed, she was found to have significant head injuries. A steel vehicle tow ball was located adjacent to her body.
Police had attended the defendant’s residence following a 000 call received by the Police Communications Centre on the morning of 9 May 2012. In that call, the defendant reported he had killed his wife and she could be found at his home. He said he was in the Noosa area and police would need to force entry into the house. In response to a question from the operator as to why he had killed his wife, the defendant stated “none of us could stand it any longer”.
Later that morning police located the defendant in an area adjacent to the Bruce Highway north of the Caboolture area. He agreed to participate in an electronically recorded interview. He did so without any legal representative being present. In that interview, the defendant accepted he had telephoned Police Communications Centre earlier that morning and stated he had killed his wife.
Defendant’s version
On the version given to police, the defendant and his wife had not argued on the evening before and had gone to bed after watching television. The defendant awoke between 1.30am and 2.00am and left the bed because he could not sleep. After pacing around he went into the garage area of the house where he located the tow ball. The defendant carried it upstairs “maybe a couple of times”. The defendant then hit his wife with the tow ball “a couple of times”. The defendant pulled a pillow and sheet over his wife when she made a noise. He then went into the kitchen area, obtained a knife, and returned to the bedroom where he stabbed his wife in the back.
The defendant said after he had killed his wife, he walked around the house for a period. During this time his son returned home. The defendant stayed in the bedroom with the door shut. When his son left the house, the defendant went downstairs. He tried to commit suicide by stabbing but could not do so. The defendant then drove to Noosa Heads where he again unsuccessfully tried to commit suicide by jumping from a cliff. He then travelled back to Brisbane. He was intercepted by police whilst he was driving back from Noosa Heads.
During the interview, the defendant spoke about their “predicament”. The defendant reported his wife suffered from a very bad back and bladder issues. He had also injured his back and had required analgesic medication for about two months. He had not been able to obtain any work. Their house needed repair work. However, his relationship with his wife remained good, and as it should be for a husband and wife.
The defendant said he killed his wife “just to put her out of the miseries we were in and also myself”. His wife was “just sick of everything”. The defendant accepted the reason he hit his wife with the tow ball was probably to end her life. He could not say when he had formed the intent to kill his wife. He denied ever having a conversation with his wife about ending their lives. He had tried to take his own life earlier in the week. At that time, he also picked up the tow ball.
Reporting psychiatrists
Dr Mann examined the defendant on 24 May 2012 and 16 August 2012. On the first assessment, the defendant was very teary and had been prescribed sedative medication to assist his sleep. He had also been offered antidepressant medication which he had declined to take. Dr Mann noted that whilst the defendant has no significant past psychiatric history, the defendant was prescribed antidepressant medication on 13 April 2012 by his general practitioner.
In the first interview, the defendant said he had been forced to stop working his mowing business due to back injuries. These injuries had not improved with analgesic medication and the defendant decided to sell the business in the weeks prior to the alleged offence. As a consequence, he had earned no income for about five weeks and was in the process of applying for social security benefits. His wife also faced uncertain times as she suffered from back pain following an accident at work in 2009, and suffered from urinary incontinence since 2008.
The defendant reported that prior to the alleged offence he was very worried about what was going to happen. He was concerned about their finances. In the five weeks after he gave up work he reported having slept for only two or three hours per night. He described ruminating about his predicament and about what the future held for him and his wife. He felt he was going to be a failure. He reported having only briefly spoken to his wife about his concerns for their future.
At the time of the second interview, on 16 August 2012, the defendant had commenced antidepressant medication. He reported his mood was jittery. When he was alone, he experienced vivid recollections of the events that led to the death of his wife. He also experienced frequent distressing dreams. He denied any ongoing suicidal ideation.
In respect of prior events, the defendant reported he had lost a significant amount of weight in the five weeks after he sold his business. The defendant also reported his wife was suffering ongoing pain as a consequence of her injuries sustained in 2009. Although she had received compensation payments from WorkCover, and was in receipt of a disability support pension and superannuation benefits, he and his wife were unhappy with the way his wife’s compensation payments had been handled and were awaiting a decision regarding the need for a further operation. Whilst his wife was learning to cope with her injuries, the defendant reported she was “always in pain” which stopped her completing activities such as housework.
The defendant reported that in the five weeks prior to the alleged offence he suffered from declining mood. He was feeling depressed as he had not been unemployed in the past. He found applying for jobs difficult. They both had concerns about their financial situation, particularly as the house was in need of repairs which he was unable to complete due to his back injury. The defendant accepted they had access to additional funds through his superannuation fund, but said it had not occurred to him at the time. He excessively worried about simple day to day issues. For example, he ruminated about possible asbestos in a spa that had been removed from their home.
The defendant reported he first contemplated suicide about two weeks before the alleged offence. He recalled thinking it was the easiest way out. He began to consider ways of killing himself. He did not discuss his thoughts with his wife, or anyone else. The defendant said he tried to commit suicide with knives but could not go through with it. He said when he was arrested he had marks on his chest from previous suicide attempts. The defendant reported he had taken the tow ball into their bedroom about two days before the alleged offence and had contemplated killing his wife with it, but was unable to do so. He denied thinking she had wanted to die. He also denied discussing his suicidal thoughts or his intent to kill his wife with his son.
The defendant estimated in the two weeks prior to the alleged offence he had attempted to kill himself about 10 times, all of which had occurred while he was pacing around at night as his wife slept. He had used fishing knives. The defendant denied attempting other forms of suicide, such as taking an overdose or driving recklessly. He also denied drinking alcohol excessively. He describes his suicidal thoughts as becoming more intense in the lead-up to the alleged offence. He denied ever having contemplated suicide prior to selling his business.
The defendant reported he and his wife had a positive relationship. They had been able to work through issues together in the past. There had never been any previous violence in the relationship, or any contemplation of separation. He denied any significant arguments with his wife in the weeks leading up to the alleged offence. He was unable to explain why he involved his wife. It may have been so that she would not have to confront everyone with the defendant having killed himself. His wife’s pain and operations had been ongoing for so long. He expressed feelings of hopelessness in relation to her health.
In the weeks prior to the offence, the defendant reported he had stopped enjoying previous activities of relaxation. He did not even watch television. He was unable to have conversations with those close to him. He developed a pre-occupation that he had been unsuccessful and had let everyone down. He denied being intoxicated at the time of the alleged offence.
In Dr Mann’s opinion, at the time the defendant committed the alleged offence, he was suffering a major depressive episode characterised by melancholic features and delusional beliefs about his hopeless situation and associated guilt. The defendant fulfilled the diagnostic criteria for mood congruent psychotic features with feelings of personal inadequacy and guilt.
The defendant had suffered from deteriorating mood over the five weeks prior to the alleged offence. He became preoccupied with worries about his and his wife’s deteriorating health and financial situation. He was unable to discuss his feelings with others. He became self-absorbed. He had difficulty sleeping. He lost a considerable amount of weight. He ruminated excessively about minor problems. In the days leading up to the alleged offence, the defendant developed suicidal ideation which he attempted to act on on several occasions. He also developed an intention to kill his wife.
Dr Mann noted that whilst the defendant was inconsolable at the time of his first assessment, his mood had improved somewhat at the time of his second assessment although he became easily distressed and tearful when discussing the events. After receiving antidepressant medication, the defendant was able to accept the concerns he felt at the time of the alleged offence were not acute or critical.
Dr Mann opined the defendant’s mental illness did not deprive the defendant of the capacity to understand what he was doing, or of the capacity to control his actions. However, at the time of the alleged offence it did deprive him of the capacity to know he ought not to do the act in question. The defendant’s depressed mood and delusional ruminations about the financial and health situation he and his wife were facing, and his associated preoccupation with feelings of guilt and personal failure, rendered the defendant unable to reason with even a moderate degree of sense and composure as to the moral wrongness of his actions.
Dr Mann further opined that at the time the defendant committed the alleged offence he was suffering from a state of abnormality of mind arising from his depressed mood. That abnormality of mind substantially impaired his capacity to understand that he ought not to do the act. Dr Mann supported a finding of diminished responsibility, if the defendant was not found to have been of unsound mind at the time of the alleged offence.
In reaching these conclusions, Dr Mann noted the defendant did not have a past history of offending or of aggressive or other antisocial behaviour and there were no reports suggesting he and his wife had any marital difficulties. There was no other plausible explanation as to why the defendant had killed his wife “other than those related to mental illness and his delusional ruminations associated with hopelessness and personal failure”.
In a subsequent report, Dr Mann opined that even though the defendant was noted by the prison counsellor to have no wounds consistent with his assertion that he had attempted to commit suicide by stabbing himself, such a finding was not inconsistent with the defendant’s report of having attempted suicide as the defendant had never claimed to have actually stabbed himself, merely that he had attempted to do so in the past. That assertion is somewhat surprising having regard to Dr Mann’s own record of the defendant having reported that when he was arrested he had had marks on his chest from previous suicide attempts.
Dr van de Hoef interviewed the defendant on 12 December 2012. The defendant gave a similar account of the alleged offence, and of his attempts to commit suicide after the alleged offence. His first attempt was with a knife to the chest. The defendant “could not do it and was not sure if he even drew blood”. His second attempt was when he walked around the Noosa National Park to the edge of a cliff. Again, the defendant “could not do it”.
In her first report, Dr van de Hoef noted the defendant’s prison file contained an assessment by the prison counsellor on 14 May 2012. In that assessment, the defendant reported having attempted suicide five days earlier and at least three similar attempts in the fortnight prior to that “all by stabbing in the chest with a knife”. The defendant reported he had been unable to follow through with it. The prison counsellor noted there was no scarring or wounds to the chest.
Dr van de Hoef opined the defendant was suffering from a major depressive episode at the time of the alleged offence. This illness was characterised by markedly depressed mood, negative hopeless cognitions, social withdrawal, significant insomnia, anorexia and considerable weight loss and distractibility. In the weeks prior to the alleged offence, the defendant had developed suicidal ideation and had made repeated attempts to stab himself. He also developed ideas of murder/suicide.
Dr van de Hoef noted several striking aspects to the defendant’s case. First, there was the “seeming absolute ordinariness of this man’s life until early 2012”. Second, there was the rapid catastrophic change following his belief as to the seriousness of his back pain which triggered a cascade of responses that meant for him his life was over and his wife was better off dead. Third, there was the shocking and uncharacteristic savagery and violence associated with the alleged offence.
Dr van de Hoef opined that in the absence of any material to indicate otherwise, these striking features meant an acute severe mental illness offered the most reasonable explanation of the alleged offence. Importantly, symptoms and signs of a major depressive episode were evident on reception to prison, and the defendant responded reasonably well to antidepressant medication within three to four months, and without antipsychotic medication.
In Dr van de Hoef’s opinion, the defendant’s severe major depressive episode (with probable psychotic features) constituted a state of mental disease within the meaning of s 27 of the Criminal Code. This illness deprived the defendant of the capacity to know he ought not to do the act. This illness did not deprive him of either of the other relevant capacities.
Dr van de Hoef further opined that should the defendant not be found to have been of unsound mind, his major depressive episode constituted a state of abnormality of mind which substantially impaired his capacity to know he ought not to do the act. Dr van de Hoef supported a finding of diminished responsibility.
Dr Schramm interviewed the defendant on 4 February 2013. He was given a similar history to that of the other reporting psychiatrists. In Dr Schramm’s opinion the defendant was suffering a mental disease, major depression, in the lead up to and at the time of the alleged offence. That major depressive episode had feelings of hopelessness and neuro-vegetive features, especially marked insomnia. However, Dr Schramm does not agree the defendant was delusional or psychotic per se.
Dr Schramm opined the defendant’s depressive condition was so severe, and his consideration that his wife would be better off dead was so genuine, that the defendant was deprived at the time of the alleged offence of the ability to consider the issue of not doing the act with a “moderate degree of sense and composure”. Accordingly, the defendant was deprived of the capacity to know he ought not to do the act. Dr Schramm also considered the condition was an abnormality of mind which substantially impaired the defendant’s capacity to know he ought not to do the act. Dr Schramm also supported a defence of diminished responsibility.
At the hearing, each of the reporting psychiatrists maintained their opinion the defendant was suffering from a mental illness at the time of the alleged offence and that that mental illness deprived him of the capacity to know that he ought not to do the act. Each said the fact the defendant had been unable to commit suicide, after having violently attacked his wife, was not inconsistent with the existence of a complete deprivation of the capacity to know that he ought not to do the act.
In addendum reports, provided following the hearing, the reporting psychiatrists each opined the fact the defendant had no scars or injuries consistent with previous suicide attempts did not cause a revision of their earlier evidence.
Assisting psychiatrists
The assisting psychiatrists advised I ought to accept the opinions of the reporting psychiatrists as to the existence of a mental illness at the time of the alleged offence, and as to that illness having completely deprived the defendant of the capacity to know that he ought not to do the act.
Dr McVie advised there was substantial evidence the defendant had developed a significant severe major depressive illness following a number of stressors in his life. These severe depressive conditions were most likely verging on the level of psychosis, and were central to the view that he and his wife’s lifestyle and future were hopeless. Dr McVie advised I ought to accept the defendant was in such a state of severe depression at the time of the alleged offence that he was deprived of the capacity to know he ought not to do that act. There was no clinical evidence that supported an alternate view.
Dr Davison concurred with Dr McVie’s advice.
Discussion
There is substantial evidence the series of adverse events that befell the defendant in the months prior to the alleged offence caused the defendant to become despairing of the future. They affected his weight, sleep patterns and relationships with those around him. A sense of hopelessness developed, pervading his views of his wife’s health and their future lives together.
I accept the defendant’s feelings of hopelessness developed from his unrealistic assessment of the depth of difficulties confronting the defendant and his wife due to their poor health and changed financial circumstances. Whilst Dr Schramm would not characterise the features of hopelessness as psychotic or delusional, Dr van de Hoef and Dr Mann characterised the defendant’s belief as to the hopelessness of his situation, as ultimately delusional and, to that extent, psychotic. I accept that this belief was delusional.
I accept the opinion of the reporting psychiatrists that the defendant was suffering a major depressive episode at the time of the alleged offence. I also accept their opinion that this condition amounted to an abnormality of mind which substantially impaired the defendant’s capacity to know he ought not to do the act of killing his wife. Absent a finding of unsoundness of mind, the defendant would be entitled to a finding of diminished responsibility.
As to unsoundness of mind, each of the reporting psychiatrists opined the defendant’s major depressive episode was a mental disease within the meaning of s 27 of the Criminal Code. I accept that evidence. The issue for determination is whether this major depressive episode completely deprived the defendant of the capacity to reason, with a moderate degree of sense and composure, as to the wrongness of his act, at the time of the alleged offence. There is no suggestion the defendant was totally deprived of either of the remaining relevant capacities by this major depressive episode.
Whilst each of the reporting psychiatrists opined the major depressive episode was of such a magnitude at the time of the alleged offence as to have completely deprived the defendant of the capacity to know he ought not to do the act, and the assisting psychiatrists advise I ought to accept those opinions, the Director of Public Prosecutions submits aspects of the evidence do not favour a finding that the defendant’s mental illness completely deprived the defendant of that capacity. Those aspects include the defendant’s failure to kill himself and his actions after the alleged offence, including his statements to police.
A finding of unsoundness of mind is not to be lightly made. Whilst the standard of proof is on the balance of probabilities, a finding is only to be made “in reliance on clear and convincing evidence, and upon a firm satisfaction consistent with the gravity of the proceeding”.[1] The proper approach is to search “for clear and convincing evidence of the direction in which the balance of probabilities tilted”.[2]
[1]R v Schafferius [1987] 1 Qd R 381 at [383].
[2]DAR v DPP (Qld) & Anor [2008] QCA 309 at [83].
It is, as Dr van de Hoef observed, “an important matter of judgment” whether the defendant’s major depressive episode totally deprived the defendant of the capacity to know that he ought not to do the act. That judgment must be made having regard to the available material, and an assessment of the expert evidence as to the defendant’s state of mind at the time of the alleged offence.
A central feature of the defendant’s reports of an overwhelming sense of hopelessness in the lead up to, and at the time of the alleged offence, was the development of suicidal ideation. The description given by the defendant as to the suicidal ideation has been consistent. It involved “stabbing” himself with a knife. He reported attempting to do so on a number of occasions.
Whilst each of the reporting psychiatrists express caution in interpreting the defendant’s stated history of previously stabbing himself too literally, and suggest the reference to “stabbing” is consistent with attempts without actually inflicting injury, the defendant’s report to Dr Mann was clear and specific; he had wounds from previous suicide attempts at the time of his arrest by police. The notation of the prison counsellor, following his arrest, is of there being no such wounds. I accept the accuracy of that notation. There is no suggestion from the defendant’s legal representatives that the defendant contends he did have such wounds.
Doctors Mann and Schramm opined the lack of any physical injury is consistent with an inability to commit suicide, notwithstanding the ability to inflict extreme violence to his wife. I accept different factors may play on a person when attempting to carry out an act of suicide as opposed to inflicting violence on another. However, the failure to carry out the act of suicide, in circumstances where suicide was the primary issue, together with the lack of any physical signs of any such previous attempt, calls into question the accuracy of the history relied on by the psychiatrists.
This is particularly so where the available material establishes the defendant had, at the time of committing the alleged offence, access to a knife, his reported means of committing suicide. Not only did he not do so, there is no objective evidence he even attempted to do so. The defendant’s failure to do so is not explained by diurnal mood variations in a depressed person. Dr Schramm said the defendant gave no such history. In any event, the particular time of day when the alleged offence took place, in the early hours of the morning, was the worst time in any day for the defendant.
Both Dr Mann and Dr Schramm viewed the defendant’s primary motivation on the night in question as killing himself rather than his wife. Dr Mann saw the driver of the defendant’s actions was “primarily suicidal and that taking his wife with him was secondary”.[3] The driver was suicide because the defendant had “attempted suicide several times. He’d stabbed himself in the chest”.[4] Dr Schramm also characterised the defendant’s decision as being “to kill himself and his wife”.
[3]T1-7/25.
[4]T1-7/35.
Having regard to the importance of the defendant’s suicidal ideations, and the express history given to Dr Mann of actual attempts at suicide, Dr Mann’s dismissal of the non-existence of wounds consistent with actual attempts at stabbing his chest lacks cogency. Further, Dr Mann’s assertion that he does not believe the defendant “stated that he had actually stabbed himself in the chest” is contrary to the history given to Dr Mann. If the central driver for the defendant’s actions was his own suicide rather than the death of his wife, the lack of wounds, against a stated history of actual attempts at suicide by stabbing, is inexplicable.
Dr Schramm’s dismissal of any significance to the lack of wounds also lacks cogency. Dr Schramm explained the defendant’s inability to kill himself as a combination of the “primitive part”[5] which prevented the defendant from killing himself and the fact that killing his wife “had been a sobering event in itself”.[6] He opined there was “the danger of taking too forensic a view of [the defendant’s] mind”, which was hard to fathom.[7] Whilst I accept it is inappropriate to take too forensic a view of the defendant’s actions, the absence of any objective evidence of an attempt to kill himself on the morning of the alleged offence is significant if, as Dr Schramm opines, the decision of the defendant was to kill himself and his wife.
[5]T1-24/25.
[6]T1-24/20.
[7]T1-24/42.
The alleged offence was committed in the early hours of the morning, whilst the defendant had in his possession a fishing knife, the very type of weapon he allegedly had previously used to attempt to kill himself. Dr Schramm noted it was a biological symptom of severe depression to wake up early or to have generally impaired sleep. In those circumstances, it was likely early in the morning was the worst time of day for the defendant as he was alone and had nothing to distract him except his own pessimistic thoughts. Those were the times when the defendant had thought about killing himself in the days before the alleged offence. Against that background, the defendant’s failure to complete his stated plan is equally inexplicable.
I do not accept the opinions of Dr Mann and Dr Schramm that the defendant’s failure to kill himself is only consistent with a total deprivation of the defendant’s capacity to reason with a moderate degree of sense and composure. The failure to do so is consistent with the retention of some capacity to reason with a moderate degree of sense and composure. This conclusion is consistent with the evidence of Dr van de Hoef, who accepted that a possible explanation for the defendant not killing himself is that he retained some capacity to reason.
Dr van de Hoef also conceded the defendant’s actions on the night were consistent with the defendant having retained some capacity to know he ought not do the act. However, Dr van de Hoef cautioned against relying on the defendant’s actions in calling emergency services, and his answers in the interview with police, to support a conclusion the defendant retained some capacity.
In Dr van de Hoef’s opinion, the defendant was “terribly depressed” and sleep deprived when being interviewed, and it was possible “in this inarticulate depressed stressed man that he actually might have misinterpreted the questions somewhat”.[8] It was also not inconsistent that a person who was psychotic and out of touch with reality could quickly thereafter be able to reason in terms of making a call to emergency services and shut the bedroom door. Dr van de Hoef observed:
“I think the police get a lot triple-0 calls from people who are out of touch with reality. They remember the number, they dial, they give their address, they say what’s wrong and when it happened and I think, in his case, even some of the events leading to it. Shutting the door- I think it was so that his son – I would think it was essentially to protect his son. So I – I Don’t see that as being inconsistent with being either substantial impaired or fully deprived.”[9]
[8]T1-29/40.
[9]T1-31/20-25.
I found Dr van de Hoef’s explanation of the defendant’s actions following the alleged offence, together with the explanation of the defendant’s responses in the police interview, persuasive. I accept those matters are not properly to be relied upon to support a conclusion that the defendant retained some capacity to reason with a moderate degree of sense and composure.
As to the defendant’s failure to kill himself, whilst Dr van de Hoef accepted this failure could properly be viewed as being consistent with the retention of some capacity to reason with a moderate degree of sense and composure at the time of the alleged offence, the issue is not whether the defendant retained some capacity to reason generally. The issue is whether he retained the capacity to reason about the wrongness of the act of killing his wife.[10]
[10]R v Porter (1933) 55 CLR 182 at 190, and endorsed in R v Stapleton (1952) 86 CLR 358 at 372; Re HW [2008] QMHC 14 at [25].
In respect of that act, Dr van de Hoef opined the defendant was completely deprived of that capacity at the time of the commission of the alleged offence. Her reasoning is instructive in understanding that opinion:
“On the balance of probabilities, why is that your opinion?--- Because I thought the conclusions he came to, in his own mind, in the weeks before the commission of the offence, were clearly so far removed from the reality of his situation, starting with the severity of his back problem, how it was going to render him a lifelong invalid, how it was never going to get any better, how he was always going to be in pain, how he must give up his business, how he must give up work, how he must sell his boats. And then the house started to fall apart, staring with the spa, where, by the way, there was no real problem. And then his wife, with her back problem, which had been chronic and didn’t seem to worry her nearly as much, reading the witness statements from other people, and her bladder problem – another problem. I thought he catastrophised everything in his life in the weeks prior to the commission of the offence and it – by the end, it boar (sic) little or no relationship to reality and so where to then? The next step was to take them both out of the equation together, very poor judgement no matter which way you look at it, only a makes a vestige of sense if, indeed, they had been bereft and finished and washed up as they thought they were. And I think he was psychotic by the end of it and out of touch with reality and came to all the wrong conclusions.”[11]
[11]T1-31/0-17.
I found Dr van de Hoef’s explanation as to why it was more likely than not the defendant was totally deprived of this capacity to reason as to wrongness of the act of killing his wife cogent and compelling. I accept that explanation.
I am satisfied, on the balance of probabilities, that the defendant’s major depressive episode was a mental illness, and that that mental illness totally deprived the defendant of the capacity to reason with a moderate degree of sense and composure as to the wrongness of the act of killing his wife. The defendant was suffering from unsoundness of mind at the time of the alleged offence the subject of the reference.
Forensic order
It is not in dispute that if there is a finding of unsoundness of mind, a forensic order is properly to be made in the circumstances. There is an issue whether limited community treatment ought to be approved at the present time.
The defendant’s legal representatives submit it would be appropriate to approve limited community treatment, on a graduated basis, at the discretion of the authorised psychiatrist. They rely on the opinions of Dr Mann and Dr Schramm, who support the approval of graduated limited community treatment.
The Director of Mental Health, and the Director of Public Prosecutions, oppose the granting of any limited community treatment. They rely on the contents of the most recent reports of Dr Timmins, and concerns expressed by Dr van de Hoef.
The report of Dr Timmins raises significant concerns as to the need for further investigation of the defendant’s mental illness, and careful consideration as to the adequacy of any treatment to date and as to the requirements for treatment in the future.
Dr van de Hoef found Dr Timmins’ second update report “very disturbing” because she would have expected the defendant to be better than he appeared to be based on the contents of that report. In Dr van de Hoef’s opinion, the defendant sounded like he was “still significantly depressed”. Dr van de Hoef noted the defendant had been in the Arthur Gorrie Correctional Centre to date, and had only received a relatively modest course of antidepressants which he was continuing to resist against a backdrop of poor insight.
Although the assisting psychiatrists advise some limited community treatment could be approved, on a graduated basis, once there is undertaken a proper assessment of the defendant’s condition and his treatment needs, Dr van de Hoef’s observations raise serious concerns as to the risks of approving any limited community treatment at this time. I accept Dr van de Hoef’s opinion that these risks are real, and that there is a need for the defendant to be carefully assessed in a hospital setting without any limited community treatment at the outset.
Having considered the contents of Dr Timmins’ reports, together with the evidence of Dr van de Hoef, I am satisfied the appropriate forensic order is one that requires the defendant to be detained at the Park High Secure, without any approved limited community treatment. The defendant needs to be carefully assessed over an extended period of time, in that setting, to ensure his mental health is properly assessed, and treated, before any consideration is given to the approval of limited community treatment, even on a graduated basis.
I order:
1. at the time of the commission of the alleged offence, the subject of the reference, the defendant was suffering from unsoundness of mind as defined in the Schedule to the Mental Health Act 2000;
2. The proceedings according to law against the defendant are discontinued and further proceedings must not be taken against the defendant for the acts constituting the alleged offence the subject of the reference;
3. the defendant be detained, pursuant to a forensic order, in the Park High Secure Program Authorised Mental Health Service;
4. there be no approved limited community treatment at this time;
5. a correctional officer escort the defendant to the Park High Secure Program Authorised Mental Health Service;
6. copies of the reports, and of the transcript, be provided to the parties, to the treating team, and the Mental Health Review Tribunal.
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