SPM Re
[2011] QMHC 19
•4 April 2011
MENTAL HEALTH COURT
CITATION:
Re SPM [2011] QMHC 19
PARTIES:
REFERENCE BY THE PATIENT’S LEGAL REPRESENTATIVES IN RESPECT OF SPM
PROCEEDING NO:
0289/09
DELIVERED ON:
4 April 2011
DELIVERED AT:
Brisbane
HEARING DATE:
21 March 2011
JUDGE:
Ann Lyons J
ASSISTING PSYCHIATRISTS:
Dr E N McVie
Dr A S DavisonFINDINGS AND ORDERS:
1. That at the time of the alleged offence the defendant was not suffering from unsoundness of mind as described in schedule 2 of the Mental Health Act 2000 (Qld);
2. That at the time of the alleged offence, the defendant was suffering from diminished responsibility as described in schedule 2 of the Mental Health Act 2000 (Qld);
3. That the defendant is fit for trial;
4. That the proceedings against the defendant for manslaughter be continued according to law.COUNSEL:
J Briggs for the defendant
J Tate for the director of Mental Health
S Vasta for the Director of Public ProsecutionsSOLICITORS:
Legal Aid Queensland for the defendant
Crown Law for the Director of Mental Health
The Director of Public Prosecutions (Qld)
ANN LYONS J:
This is a reference by Legal Aid Queensland dated 3 November 2009 in relation to SPM. SPM is charged with the murder of his de facto wife and the mother of his three children.
The circumstances surrounding the death
On Sunday, 26 October 2008 at approximately 10.20am it is alleged that SPM stabbed his wife in the chest, causing her death. Shortly afterwards, SPM telephoned police and informed them of what he had done. He also told them he was going to kill himself. He inflicted serious wounds to his neck and wrists using a knife. When police gained entry SPM was found bleeding outside the house and the three children were found inside the house.
During the call to police SPM stated: “Look lady, I am their father, I just killed the mother and I am going to kill myself right now. So just get someone out here please. OK, to help my kids.” Later in the call he said “Bye. You know, get someone here please (inaudible) took my life. Okay? Cause she’s a manipulating fucking bitch and all she wanted to do was take my kids off me.”
On Monday, 27 October 2008 there was a short interview with two constables from Caboolture CIB in which SPM stated that his partner had been manipulating him. That is repeated later in another interview when he said “So that’s what I’m saying about manipulating with my mind”.
The cause of his wife’s death was stab wounds to the chest. One wound had perforated the heart and penetrated into the aorta. The second stab wound had perforated the thoracic cage, tracking through to the left lung. There were also numerous bruises and abrasions to the front of the neck which were consistent with attempted manual strangulation. The forensic pathologist concluded that given the severity of the stab wounds it was likely that the injuries to the neck had been inflicted earlier and before the stab wounds. He concluded that SPM’s wife was alive when the stab wounds were inflicted but that neither of the stab wounds were survivable.
The nature of the relationship
The evidence indicated that there had been some tension between SPM and his wife for approximately a year prior to her death. SPM’s previous employer had indicated that he was “unstable and drug fucked” and that he had been a serious speed user as well as having used heroin at some time. He said that he regularly talked about using marijuana and had used it during the time he had worked for him.
SPM’s father stated that at 10am on 26 October, he received a phone call from his son who said “She’s going to take the kids and leave me when I hang up the phone”. “She is messing with my head again.” SPM’s father then gave him two telephone numbers to seek assistance and when he told his wife, she indicated she was not interested in going. SPM then said to his father “No Dad, she doesn’t want to go, she’s messing with my head”. SPM’s father stated that his son had been calling him for the past four to six weeks with the same story. In most of the phone calls he said his son would say “[she] is messing with my head”.
SPM’s father stated that he had previously taken his son to the Caboolture Hospital for assessment in relation to his mental health some nine years previously. He stated that his son had seen a doctor in the last 12 months and been diagnosed with depression and given medication. He also stated that his son had been using illegal drugs since he was 16 and mostly smoked marijuana and he believed he smoked it every day.
SPM’s mother stated that she was aware her son and his wife had been having problems for many years due to SPM’s drug addiction. She was also aware that her son and his wife were having problems since the birth of their third child who was 16 months old at the time. SPM’s mother indicated that SPM had rung her twice on the morning of the stabbing. The first call was around 8.30 saying “I think she is up to something. I think she is going to leave and take the kids at some stage.” He said that his wife wanted him to see a psychiatrist but he wanted them to go together but she had refused. She stated that there was a second call at 9 am when she heard him say to his wife that he would see a doctor tomorrow.
SPM’s mother said he had been ringing her saying “She is really twisting my mind”. She stated that a week before the death her son had telephoned her and indicated that his wife was planning something, which she understood to mean that his wife was leaving and taking the kids with her. SMP’s mother indicated that this would have sent him over the edge. She said that in the week before the death, he had rung her three times with similar concerns. SPM had also made calls to his sister two days before the stabbing raising his concerns about his wife and he outlined his beliefs that she was unfaithful to him because she was leaving soiled underwear on top of the laundry basket. He said to her that his wife was “screwing with his mind, I can see clearer now because I haven’t been on the shit for three to three and a half weeks”. She believed he was referring to cannabis as he was a regular user. His sister managed to assure him that his beliefs about his wife being unfaithful were unfounded.
There had been no incidence of previous domestic violence or any reports of loud voices or arguments coming from the home.
Report of Dr Angela Voita
Dr Angela Voita provided a report dated 28 June 2010. Dr Voita stated that SPM told her that on Sunday, 26 October 2008, he and his partner started arguing and that their relationship had deteriorated in the two weeks before she was killed. He stated that he also believed that he was being drugged in the days prior to the offence. He reported that he did not sleep and could not sleep between the Thursday and the Sunday. He stated he smoked a joint of cannabis on the Friday night and a further joint on the Saturday night, around 7.30/8 o’clock. He was adamant that he did not use speed or any other illicit substance.
He told Dr Voita that his wife was at work on the Saturday night and they had an argument about “the drugging” and the fact he had not slept for days. SPM told her that his wife was jumpy on the evening that she came home. She went to bed in a separate bedroom and he went to bed in the main bedroom but could not get to sleep. He woke her around midnight and talked to her about “the drugging”. He also reported that he told her again on Sunday morning that someone had drugged him. On the morning of the killing an argument was underway about the fact he was being drugged and he stated that his wife said that no one gave a fuck about him and “this is why we do it to you”.
SPM told Dr Voita that he could recall grabbing her by the neck and that they fell down on the floor, at which time she hit her head. He saw the children standing near watching and he put them in the bedroom and shut the door. He stated that he grabbed half a bottle of scotch, drank it quickly, then grabbed a knife and proceeded to hack himself up. He stated that he grabbed a second knife, as the first one did not work. He stated he was in a psychotic rage and also that he had a sleep disorder and “somewhere in there I stabbed her”. He then stated he rang an ambulance and talked to a doctor. He said he could not remember the next four or five days.
Dr Voita asked SPM why he had not disclosed concerns about being drugged or poisoned earlier. He stated that he had told his neighbour, Troy, about it and believed he spoke about it to his two sisters. He said he did not tell his treating psychiatrist, Dr Scott, and only told Dr Fama about it many months later. He could not explain why he had not disclosed those concerns earlier.
He explained that he did have concerns about his food being poisoned whilst in jail. He could not explain to Dr Voita how long he had had beliefs about poisoning but said it was for a few weeks prior to the killing. When asked to explain further, he stated that he sometimes still got paranoid and believed that people talk about him.
He also stated that he was suffering from a psychotic rage because his wife said “she did not give a fuck about me”. He said he did not know what to think at the time and did not think about what he was doing. He stated that on the day of the offence he heard a voice after his wife hit her head and after he drank the half bottle of whiskey. When he was asked to describe the voice that he said he heard in his head he said it was a middle aged lady. He denied that he heard the voice at any other time. He stated that when police arrived, he was on the floor inside the house and then went out and collapsed.
Dr Voita considered that SPM was not suffering from a mental disease at the time of the alleged offence. She stated that she is not convinced by the history he provides and the collateral material that goes with it. Dr Voita considered that he was an inconsistent historian and had given a different history in relation to his alleged psychotic symptoms to Dr Fama, Dr Scott and herself.
Notably Dr Voita noted that he did not receive treatment for his psychotic illness for over five months and yet claimed to her that his symptoms had resolved spontaneously. Dr Voita noted that when Dr Scott asked SPM questions about surveillance he denied them. He also denied hearing voices to Dr Scott. Dr Voita considered that it was significant that the symptoms suggestive of a psychosis are only provided by SPM some five months after the alleged offence when he was seen Dr Fama. Dr Voita thought this was significant because he had been seen on a number of occasions by the psychiatrist, Dr Scott in prison.
She considered there was no clear evidence that he is suffering from psychosis or a delusional disorder. Furthermore, in her view the interviews by the medical team and police do not suggest he was under the influence of delusional ideas and he did not behave in a way that suggestive of this.
The report of Dr Jill Reddan
Dr Reddan considered that there was no substantial dispute of the facts in relation to the matter. It would appear that SPM can recall grabbing his wife by the throat. He does not recall stabbing her, but admits that he did so, and that it caused her death.
Dr Reddan considered that SPM’s history suggests that he manifested significant personality dysfunction, probably amounting to a personality disorder and that he manifested significant paranoid personality traits. She considered that whilst it was clear that SPM had stopped using amphetamines it was unclear when he had done so. It was also clear that he continued to use significant amounts of marijuana and it is likely that this amounted to cannabis abuse.
Dr Reddan stated that SPM had recently reported that he was provoked by his partner when she informed him that no one cared in response to his complaints that he was being drugged. To him, his wife’s response seemed to be confirming that she and other members of her family were acting against him. SPM claimed to Dr Reddan that he drank a considerable quantity of whiskey and had self-harmed with a knife. He also said that whilst in a rage he began hearing voices. He acknowledges that he stabbed his wife to death but has no memory of it.
Dr Reddan considered however that his version did not represent a likely sequence of events. She stated that even if that account was accepted it suggests he had formed the intention to kill his partner because he put the children in another room, so they would not see it. To give himself “Dutch courage” he drank a quantity of spirits quickly before the killing which further suggests that he had formed the intent to kill before ingesting the alcohol. She considers that intoxication is likely to have played some role in his acting on that intent once it was formed.
Dr Reddan considers that although SPM had, prior to the killing, commented to a number of others that his wife had been manipulating him or playing with his mind, she stated there is no evidence of his communicating to anyone prior to the killing that his wife or her relatives were drugging him or planning harm against him. She considers that SPM’s complaints about his wife that she was manipulating him can be interpreted in the light of a tendency to project.
Dr Reddan stated that after the killing SPM was clearly aware of the nature and quality of his act. He self-harmed and telephoned Emergency Services as well as his sister, asking for the children to be cared for. Furthermore, when speaking with police he declined a record of interview but asked for a doctor in relation to his mental state. Dr Reddan states that this suggests it is unlikely that he was psychotic or out of contact with reality at the relevant time.
Furthermore Dr Reddan noted that he was also evaluated by Dr Russell Scott, psychiatrist, within four days of the killing. SPM was able to provide a lengthy account himself and Dr Scott did not find, on a mental state examination, any objective evidence of a psychotic illness.
Dr Reddan concluded that on the balance of probabilities, it was her opinion that SPMwas not suffering from a psychotic disorder at the time of the murder.
Dr Reddan stated that if the Court did consider SPM had a psychotic disorder, that is a delusional disorder in relation to his wife and her family, then the question would be whether he was deprived of any of the relevant capacities and whether intoxication played a role.
Dr Reddan did not consider SPM was deprived of any of the relevant three capacities because in killing his partner he first manually strangled her and then stabbed her with a degree of force on more than one occasion. She considers that he also appears to have quickly recognised that she was dead and it is clear that he understood what he was doing. She considers that his actions in putting the children in another room so that they would not see what he was doing suggests he was not deprived of the capacity to control his actions, even in the state of heightened emotional arousal. Dr Reddan considered SPM was fit for trial.
Dr Reddan considered that whilst a delusional disorder does represent an abnormality of the mind, in her opinion, on the balance of probabilities, she did not consider that SPM was substantially impaired in any of the three capacities, such as to fulfil the criteria in s 304A of the Criminal Code.
Report of Dr Fama
Dr Peter Fama also provided reports, a report dated 7 April 2009 and a later report dated 11 November 2009. In his interview with Dr Fama, SPM indicated that for the three nights preceding the homicide he did not sleep and was convinced that he had been secretly administered a drug of some kind in his food. He apparently lay in bed thinking and worrying. He also seemed to be convinced that his wife may have been unfaithful. On the night before the alleged offence SPM told Dr Fama that after his wife came home from work, they both smoked some marijuana. He allegedly woke his wife during the night telling her that he could not sleep because someone had drugged him. He apparently told Dr Fama that after breakfast there was an argument:
“She’s standing next to the doorway cryin' --- we had a kid’s gate – she tried to stab me. I’ve gone for the knife and grabbed her. Somehow in the struggle we’ve fallen. She’s fallen over the kid’s gate. Somehow she’s got the knife stuck in her.”
He stated to Dr Fama that he could not remember trying to strangle his wife, although he thinks that he may have grabbed her in the throat “cause she was stabbing”. He cannot explain how she came to receive not one but two deep knife wounds, saying that somehow the knife went in. He told Dr Fama that he only had a vague recollection of cutting himself and of making the phone calls.
Dr Fama stated that in the interview with him SPM disputed the facts of the offence, maintaining it was his wife who flourished the knife and that his efforts to control and disarm her led unintentionally to her death with no injury to himself. Dr Fama does not consider this dispute arises as a result of his mental condition.
Dr Fama considered however that were SPM not to dispute the facts, then in his assessment, at the time of the offence, he suffered from a mental disease namely a paranoid psychosis with depressive shift. Dr Fama indicated that a delusional disorder was a paranoid psychosis which comprises a set of persistent delusions which in this case were of a persecutory kind with an element of morbid jealousy without core signs of schizophrenic process.
He also considered that he had Cannabinoid dependence syndrome. He noted that there was a report from the Caboolture Hospital in February 2003 that he had a level of paranoid thoughts about the family trying to tape his conversations. It was also recorded that SPM had been using marijuana and speed at the time.
Dr Fama believes that this would not have deprived him of the capacity to understand what he was doing namely, strangling and then stabbing his wife. Nor does he consider the evidence to be indicative of a deprivation of the capacity to control his actions. Dr Fama considers, however, that the history does support a conclusion that he was deprived of the capacity to know that he ought not do the act.
Dr Fama stated:
“He would have seen his attack upon [his wife] as a desperate measure of self-defence against the threats and conspiracy to which he had been so long subjected. By taking his money, by simulated infidelity and finally by poisoning, [she] and her relatives had, [SPM] earnestly believed, tried to drive him insane and thus to rob him of everything including his children. With this limited intelligence and a striking lack of insight, [he] wasn’t able to cope with that situation by other than an act of extreme violence to the woman who he had loved.”
Whilst Dr Fama accepts that SPM smoked marijuana prior to the alleged offence, he does not consider intoxication was a significant factor at the time of the offence. The consumption of whiskey was not mentioned to Dr Fama in the version of events given to Dr Fama.
Dr Fama stated that he would therefore support a defence of unsoundness of mind under s 27 of the Criminal Code if there were no dispute of facts.
If such a defence were not accepted then alternatively Dr Fama supports a defence of diminished responsibility under s 304A of the Criminal Code. Dr Fama considered that SPM’s mental disease constitutes an abnormality of the mind arising from a disease process and that this would have been sufficient to substantially impair his capacity to control his actions and his capacity to know he ought not do the act.
Dr Fama considered that SPM was currently fit for trial.
In the later report dated 11 November 2009 Dr Fama indicated that SPM had relinquished what appeared to be a dispute of facts. Dr Fama confirmed his view that SPM was of unsound mind at the time of the offence. He also considered that SPM, at that time, still had a “rumbling psychotic process”.
Report of Dr Scott
Dr Scott is currently SPM’s treating psychiatrist in the Prison Mental Health Service. In a report dated 10 March 2010, he stated that SPM has the capacity to meaningfully participate at trial. Dr Scott had first seen SPM after his remand to the Arthur Gorrie Correctional Centre following his serious self-harming. He considered that SPM described symptoms consistent with a pervasive depressive disorder.
He also considered that SPM also manifests features with a paranoid personality disorder and may have psychotic features consistent with a brief reactive psychosis or a delusional disorder. Dr Scott stated that SPM continues to maintain that prior to her death, she was preparing to leave him and take the children and he also continues to maintain that she and her family had conspired to distress and torment him. He considers that SPM currently holds these paranoid beliefs much less intensely than when he first assessed him in 2008.
Dr Scott stated that SPM has responded partially to supervised medication which includes Olanzapine, Venlafaxine and Mirtazapine. He considered that SPM only has intermittent middle insomnia, but his affect is dysphoric and restricted at interview. He stated that SPM has completed a number of courses whilst in custody and has worked as a cleaner in the facility.
Is there a dispute of fact?
Initially SPM indicated that his partner came at him with a knife and somehow in the altercation she was stabbed. He has now resiled from that account. It would seem clear that he accepts that he initially grabbed her around the neck and that she became unconscious. It would appear that she became unconscious as a result of the pressure to her neck and she and SPM fell over the children’s gate. She was then on the floor, apparently unconscious whilst he moved the children to another room. This view of the events is supported by the autopsy which showed petechial haemorrhages on her face which indicate strength and continuation of the strangulation.
The sequencing of the subsequent events is not clear. The autopsy also showed the two deep stab wounds both of which were probably lethal. SPM states that he then consumed an amount of alcohol before stabbing her and then stabbing himself. It is impossible however to obtain a consistent history as to if and when he consumed the alcohol. Whilst SPM did talk about a voice being present after he drank half a bottle of whiskey and not at any other time, the first reports of that voice are inconsistent and I agree with Dr Voita that they are unconvincing.
I agree with Dr McVie and Dr Reddan that it is unlikely that the sequence of events is as described by SPM. I agree that it seems unlikely that he would have inflicted his own wounds first before returning to stab her. Dr McVie stated that it is more likely in these scenarios that the stabbing of the wife would have occurred first. His wounds were significant. He had neck and abdomen wounds requiring a laparotomy and he completely severed a median nerve. Another artery and two flexor tendons all required repair.
There is no dispute that SPM first strangled his wife then removed the children to another room. He then stabbed his wife twice and himself a number of times. Whilst the sequence is uncertain, the autopsy results and the nature of SPM’s injuries indicate that his wife was stabbed first. Furthermore in the phone call to police he stated that he had stabbed her and was about to kill himself. It would also seem that at some point SPM consumed a bottle of whiskey.
The Crown submits “that the sequence of events is that he choked her, they fell over the gate, that he then got up, he saw the children are there, he put the children into another room, he then drank some whiskey, he then made two incisions into her, two deep stab wounds, and then phoned triple-0, unless that is the scenario that is accepted then there is a dispute of fact that would make it unsafe for this Court to make a decision.”
I accept that the sequence of events is as submitted by the Crown and I do not consider that there is a dispute of fact such that s268 or s269 of the Criminal Code preclude this Court from determining the reference.
In terms of intoxication by either alcohol or cannabis the evidence is unclear. Dr McVie’s advice was that whilst cannabis may well have contributed to his development of persecutory ideas her view was that this issue was not well explored in the evidence. Her advice was that the symptoms and the description don't show any evidence of cannabis intoxication. In terms of the alcohol her view was that it didn't really matter how much whiskey was taken or when it was actually taken because the sequence of events was well under way before any whiskey was consumed and it would have been unlikely to have had any change on the course of the events.
Ultimately I am satisfied that intoxication did not play a role.
Was SPM of unsound mind at the time of the offences?
The question which must be determined is whether at the time of the alleged offences SPM was suffering from “unsoundness of mind”. This expression means that state of mental disease or natural mental infirmity described in s 27 of the Criminal Code.
27 Insanity
(1) A person is not criminally responsible for an act or omission if at the time of doing the act or making the omission the person is in such a state of mental disease or natural mental infirmity as to deprive the person of capacity to understand what the person is doing, or of capacity to control the person's actions, or of capacity to know that the person ought not to do the act or make the omission.(2) A person whose mind, at the time of the person's doing or omitting to do an act, is affected by delusions on some specific matter or matters, but who is not otherwise entitled to the benefit of subsection (1), is criminally responsible for the act or omission to the same extent as if the real state of things had been such as the person was induced by the delusions to believe to exist.
It must first be shown therefore that SPM was suffering from a mental disease or natural mental infirmity. The evidence of Drs Voita and Redden was that they preferred a diagnosis of personality disorder rather than a mental illness although Dr Redden leaves open the diagnosis of delusional disorder. However on balance I prefer the views of Dr Fama and the assisting psychiatrists who support a diagnosis of a delusional disorder. I have come to this conclusion for two reasons. The first is that I consider it is significant that SPM had a previous diagnosis in 2003 when he developed similar psychotic symptoms. This is indicative of a chronic delusional disorder. I note that the Caboolture Hospital notes of 2003 indicate that the psychiatrist Dr Slack diagnosed a paranoid psychotic illness. His presentation on that occasion is well documented in the notes and that the symptoms are not dissimilar to the symptoms that he was describing in the lead-up to the events of October 2008.
The second factor is that I consider that the intensity with which SPM held his psychotic views is also persuasive. Dr McVie’s advice which was supported by Dr Davison was that the correct diagnosis was a delusional disorder because of the intensity with which he held the beliefs at the time. Dr McVie noted the fact that some of these beliefs were bizarre, as well as the fact that he still adheres to some of the beliefs despite large doses of anti-psychotics. Dr Davison stated that the three phone calls on the Friday night were along the theme that “she’s messing with my mind” and that these beliefs persisted despite being talked out of the belief on Friday night. Dr Davison’s advice was that he was possessed by a delusional state of mind that actually had control of him;
“It seems to me that he had what one might call an obsessive attachment to [his wife] and that in the context of this obsessive attachment he found it very difficult to deal with the delusion that there was scheming among her and her relatives and that they were scheming to take his children and to take his money, to make him go crazy and to poison him.”
As Dr Fama also pointed out, the belief that somebody is being poisoned or drugged is a bizarre belief. Dr Fama’s view was that the beliefs were held with such intensity that they qualified as delusions and that he acted upon them. He stated "He would have seen his attack upon [his wife] as a desperate measure of self-defence against the threats and conspiracy to which he had been so long subjected."
Dr Scott’s evidence was that he still held these beliefs but with less intensity.
In this regard Dr McVie’s advice was as follows;
“In terms of the day of the events and in the lead-up to it, the description of the evening, the long discussion with his wife about problems that he was perceiving, his reports to others that she was leaving him, which is a belief that he continues to express to the current date according to the updated report of Dr Scott, and also the beliefs that he expressed regarding his wife's possible infidelity and why he thought that to [his sister] in the phone call, together with the phone calls to his parents on the morning of the killing to me do suggest that he was becoming increasingly concerned with these ideas which I would advise are more likely to be delusional in nature rather than the over valued ideas that Dr Redden described. Though it is possible, from her description, that he is developing these ideas and they are increasing in intensity.
The phone calls on the morning do really suggest that he was very disturbed by his ideas and he continued to talk about his wife messing with his wife (sic) which is a very common description of people who believe that - who are in a psychotic state of mind, particularly schizophrenia.
Now, to Dr Voita and Dr Redden he gave a very clear story of the immediate precursor to the event as being arguing with [his wife] about being drugged. Her response was to the effect of, "Nobody cares about you. That's why we do it to you", and that was the precipitator for him grabbing her throat.”
I have also taken into account the advice of both assisting psychiatrists that there was insufficient evidence to support a diagnosis of personality disorder. Dr Davison considered that whilst there were some paranoid and narcissistic traits there was no evidence that they were pervasive across the course of his life or across his relationships. Dr McVie’s advice was that to make a diagnosis of personality disorder there should be clear evidence of a pervasive disorder that starts at least in early adulthood and continues through the lifespan. Dr McVie considered that whilst there were some periods which are suggestive of paranoid personality functioning there is not a very clear history of pervasive personal disorder. In particular she noted that his first degree relatives, his parents still had close contact with him, which is quite unusual in persons that have a lifespan of paranoid personality.
Accordingly on the balance of probabilities I am satisfied that SPM was suffering from a delusional disorder at the time of the alleged offences and that a delusional disorder would constitute a disease of the mind. I am satisfied that this pervasive disorder was psychotic in nature.
Was SPM deprived of one of the relevant capacities?
Not only must SPM be suffering from a disease of the mind but it must also be shown that because of this disease he was, at the time of the offence, deprived of one of the following capacities;
(i) the capacity to understand what he was doing.
(ii) the capacity to control his actions
(iii) the capacity to know he ought not do the act
In the 1997 decision of The Reference by the Director of Mental Health Jason Troy Wiggins[1] Dowsett J said:
[1] No 170/1997 unreported p 10
“In construing s.27 of the Criminal Code of Western Australia, the High Court has recently had regard to Sir Samuel Griffith's notes to the draft Code (1897). See R v Falconer (1990) 171 CLR 30 at p.47. It therefore seems appropriate to consider those notes for present purposes. The following passage (p. 14 of the draft Code) was cited by Mason CJ, Brennan and McHugh IJ in Falconer:-
‘An act to involve criminal responsibility must be voluntary, as distinguished from involuntary (s.23) - that is to say, it must be accompanied by volition. In order that an action may be accompanied by volition there must be in the first place perception, more or less accurate, of the facts, then a determination or choice of the action to be taken upon those facts, and finally the action. If the person in question is incapable from mental disorder of rightly perceiving the facts, he should be treated on the same footing as a man who in good faith misapprehends the facts (s.24). If he is for the same cause incapable of exercising the power of determination or choice, he should be treated on the same footing as a man who does an act independently of the exercise of his will(s.23).’
As in Falconer, I have renumbered the references to sections of the draft to reflect the section numbers as currently enacted. What Griffith meant, as Falconer makes clear, was that s.27, by itself, or in conjunction with ss.26 and 28, operates to provide defences comparable to those established by ss.23 and 24 of the Code, save that ss.26, 27 and 28 apply where the condition in question is as a result of mental disease or natural mental infirmity whilst ss.23 and 24 apply otherwise.
…
The first capacity, namely to understand what the person is doing, has generally been treated as reproducing the M'Naghten reference to knowing the nature and quality of the act. In R v. Codere (1916) 12 Cr. A. R. 21 the English Court of Criminal Appeal held that the reference to "nature and quality" should not be taken as distinguishing between the physical and moral aspects of the act, but as a reference only to its physical character. The wording ors.27 indicates an intention to bring about the same outcome.As to the capacity to know that one ought not do the act or make the omission, in the passage cited from M'Naghten (supra), the Judges made it clear that the requisite knowledge was not necessarily knowledge of the law. A more abstract knowledge of the difference between right and wrong was sufficient.
… Dixon J (as his Honour then was) at first instance in R v Porter (1933) 55 CLR 182 at pp. 189-90 as follows:-
‘The question is whether he was able to appreciate the wrongness of the particular act he was doing at the particular time. Could this man be said to know in this sense whether his act was wrong if through a disease or defect or disorder of the mind he could not think rationally of the reasons which to ordinary people make that act right or wrong? If through the disordered condition of the mind he could not reason about the matter with a moderate degree of sense and composure it may be said that he could not know that. what he was doing was wrong.’
…
However the context of the paragraph in which the sentence occurs makes it clear that the word ‘matter’ is the rightness or wrongness of the act in question. Taking the sentence in isolation tends to put emphasis upon general reasoning powers rather than upon the power to distinguish between right and wrong.I come now to the capacity to control actions. The words used in s.27 clearly refer to a lost capacity to control physical acts. No question of moral judgement is involved. Having regard to Griffith's notes to the draft Code, one may draw a parallel between this provision and s.23 which provides that a person is not criminally responsible for an act or omission which occurs independently of the exercise of his will. This has been taken as referring to an involuntary act.”
Dr Fama’s view was that the history supports a conclusion that SPM was deprived of the capacity to know that he ought not do the act. Dr McVie and Dr Davison both gave qualified support for this conclusion if it was accepted that his delusional belief was acting not only when he strangled her but when he stabbed her as well. In that case they considered he could be considered to have been deprived of the capacity to know what he was doing at the time of both events.
Drs Reddan and Voita however did not consider that he was deprived of any of the relevant capacities.
Dr McVie’s advice acknowledged the complexity of the issue facing the Court. She stated;
“This brings me to the difficult section of the issue of deprivation of capacity. I think there are two ways of looking at this. It's quite clear this man wasn't acting on what you'd call a delusional motive. He didn't believe his wife was the devil. He didn't believe he had to kill her or something evil would happen to his children. We often look at part B of section 27 of the Criminal Code, which I don't think there has never been a Mental Health Court decision on. But simply to have a delusion that the wife is leaving or even a delusion that you were being poisoned wouldn't justify a response of killing.
The other way of looking at it is that there is a delusion. Delusions can be overwhelming. If he truly believes these delusions that he is being poisoned, which is what he is talking about immediately before he grabs his wife and tries to strangle her, all of his behaviour - once this argument had started, all of his behaviour would have been directed by this delusional belief and he would not have been able to think very clearly about what he was doing or why he was doing it. But there's also an anger component as a reaction to his delusional belief.
Once he'd started to strangle the wife, I would advise that he would have been unable to stop for he certainly would have been unable to reason at that point and his lack of ability to reason would have been due to his overwhelming psychotic belief.
The concerning feature of this is that it's a two-part series of events. The first part is the strangling; the second part is the stabbing. We don't know the exact sequencing. We don't know what the time frame was. We certainly don't know what his thinking was at the time. In some ways the triple-0 calls confirms that the main thing he's thinking about is his wife leaving him. If that's accepted as a delusion, then I would advise that it is that delusion that he was acting on across both limbs of the events and in that case he could be considered to have been deprived of the capacity to know what he was doing for the event.
If that's not considered and the events are considered separately, there's clearly an element of anger. It's not clear what happened with the stabbing. There is some doubt in my mind as to why that actually proceeded. It may well be psychotic. It may not be. But I would advise in that case that his judgment or his capacity to know he ought not do this act was substantially impaired by his delusion and it is quite clear from the reports that he is currently fit for trial.”
Dr Davison’s advice was as follows;
“The link between his state of mind and the presence of deprivation or impairment of capacity is a difficult question. One way of looking at it, as Dr McVie said, is that it is hard to see how this delusion, if it was on ordinary person believing it, could be justification for killing his wife. On the other hand, if one accepts that a delusion is an all pervasive, profound, all dominating way of perceiving reality, than in the context of the distress that went on between them, I think that that dominating way of understanding reality would have deprived him of the capacity to both control and control his actions and to know that it was wrong to carry out those actions.
So if the delusional disorder is accepted, my advice is that there is a defence if one accepts that second way of understanding the power of a delusion, which I think is a correct way of understanding it. On the other hand, if one considers that there is no way of explaining why a person will kill someone from a belief that they were trying to do the things that he believed that she was trying to do, then one is forced into section 304A and I would support that conclusion...”
Having considered all the relevant reports and the advice of the assisting psychiatrists I am ultimately persuaded by the reports of Drs Reddan and Voita that SPM was not deprived of any of the relevant capacities at the time of the stabbing. I am not persuaded that the delusional system was so all pervasive as to be operating across both events to the extent that it totally deprived him of any of the relevant capacities. On the evidence before me I do not consider that the delusional disorder was operating across the two events on the morning of Sunday 26 October 2008. I accept that the delusional disorder was operating on that morning and that he would have seen his attack upon his wife as a desperate measure of self-defence. Even if one accepts that this was an “existential self defence” as Mr Briggs submits on SPM’s behalf, I am not persuaded that this could have continued in such an all pervasive way once she was rendered unconscious. Once she was rendered unconscious and she was lying defenceless I do not accept that his delusional belief system continued to operate to such a degree that it deprived him of the capacity to understand what he was doing or of the capacity of control.
In relation to those two events on the morning it is of some significance to me that SPM noticed that the children were standing by and he removed them from the scene. This clearly denotes not only some capacity for self control but also organisation and planning as well. Furthermore it can be implied that SPM removed them because he knew what he was about to do was wrong. It is also significant that some time must have elapsed while this was occurring. The clear inferences are that he shepherded the children into another room and settled them down. He must have then gone to fetch the knife as it would be practically impossible to strangle someone with both hands whilst holding a knife. He then returned to his unconscious partner and stabbed her twice with some strength straight through the chest. Both wounds were life threatening.
Furthermore he then rang the police and admitted that he had “killed” his wife and was about to kill himself. The purpose of the call was to ensure that there was someone to take care of the children. He also rang his sister Michelle and said “She’s dead, there’s blood here. The police have driven past, can you come here and get the kids, cause I won’t go and let the kids see this.” He was clearly thinking rationally enough to ensure the safety and protection of his children. In my view he was also acknowledging that what he had done was wrong. I am not satisfied that SPM was deprived of the capacity to know he ought not do the act. I consider that the objective evidence does not support a conclusion that he was totally deprived of the capacity to know he ought not do the act.
In my view, SPM was not deprived of any of the relevant capacities at the time he stabbed his wife.
Issues were raised at the end of the hearing as to whether s27(2) of the Criminal Code was raised for consideration and Counsel did not have time to respond to that question in any detail. It would seem to me however that s 27(2) issues may not be within the jurisdiction of this Court.
Diminished responsibility
Whilst I do not accept that SPM was deprived of any of the relevant capacities I am satisfied that a delusional disorder would qualify as an abnormality of the mind for the purposes of s 304A of the Criminal Code.
Section 304A provides;
304A Diminished responsibility
(1) 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.(2) On a charge of murder, it shall be for the defence to prove that the person charged is by virtue of this section liable to be convicted of manslaughter only.
(3) When 2 or more persons unlawfully kill another, the fact that 1 of such persons is by virtue of this section guilty of manslaughter only shall not affect the question whether the unlawful killing amounted to murder in the case of any other such person or persons.
On the balance of probabilities I accept that due to the intensity with which SPM held his delusional beliefs it would have impaired his capacity to control his actions and impaired his capacity to know he ought not do the act. Both assisting psychiatrists endorse a finding that SPM was substantially impaired at the time of the offence. Dr Reddan also conceded that it was possible that he may have been substantially impaired with respect to his capacity for control.
Accordingly SPM will face a charge of manslaughter rather than murder.
I consider SPM is fit for trial.
I order that the proceedings against SPM for manslaughter be continued according to law.
0
2
0