Dancey v Queensland Police Service [2020] QMC 18

MAGISTRATES COURTS OF QUEENSLAND CITATION: PARTIES: FILE NO/S: DIVISION: PROCEEDING: ORIGINATING COURT: Dancey v QPS [2020] QMC 18 Christopher Dancey (Applicant/Defendant) v Constable P.R. Elford (Complainant/Respondent) MAG-00005539/1(6) Magistrates Courts Criminal Maroochydore DELIVERED ON: 15 May 2020 DELIVERED AT: Maroochydore HEARING DATE: 13/06/19 & 18/07/19 MAGISTRATE: H Stjernqvist ORDER: Application dismissed CATCHWORDS: S 172 Mental Health Act 2016 – S 109 Mental Health Act Meaning of unsound mind – Unsoundness – Intermittent Explosive Disorder (IED) – S 27 Criminal Code Insanity – Impaired/deprived – Reasonably satisfied on the balance of probabilities – Medical Reports – Reliance on clear and convincing evidence. COUNSEL: SOLICITORS: Sgt P Stephens for the Queensland Police Service Mr C Lumme Solicitor AFT for the Defendant -- 1 of 16 -- 2 Charge. [1] Christopher Dancey is charged; [2] That on 8 of December 2018 at Buderim in the State of Queensland one Christopher Dancey dangerously operated a vehicle namely a motor car in a place namely King Street Buderim. Facts – Witness Dash-cam. [3] The witness was travelling along King Street and has pulled into a car park on the side of the road outside the newsagency. The witness has stayed for a moment, waited for traffic, indicated and proceeded to enter the marked lane in King Street. [4] At the same time the defendant who was on Short Street (T intersection with King Street) waiting for traffic. The defendant intended to turn right onto King Street. It is clear at this time, the defendant was looking for traffic approaching from his right and had not seen the witness (on his left) leave the parking space. [5] The defendant commenced his turn out of Short Street onto King Street before looking to see the witness approaching the intersection. The defendant has come to a sudden stop in the middle of the oncoming lane – at the same time the witness and slowed – and made some comment such as ‘oi’ then proceed past the front of the defendants’ vehicle along King Street without incident. [6] The defendant is then immediately behind the witness continually activating his horn to which the witness can be heard saying ‘righto’ ‘righto’ and then has come to a complete stop in front of the defendants vehicle. At this point the witness can be heard to say ‘go on’ ‘go on’ presumably to encourage the defendant to go around. [7] At this time the footage (dash-cam from witness’s vehicle) reveals the oncoming traffic to be slowing as the defendant had driven onto the incorrect side of the road to be abreast of the victims driver side door and angles into the front right of the witnesses vehicle which caused the witness to veer slightly to the left of the carriage way at the same time exclaiming “are you fucking retarded.” The defendant has again sped up and came alongside the witness vehicle and into oncoming traffic at one stage swerving towards the witness’s vehicle narrowly missing him. [8] The witness then proceeds along King Street and enters the right turn lane whilst indicating a right turn into Mill Road whilst the defendant again accelerated down the wrong side of the road causing an oncoming vehicle to take evasive action by swerving out of the way to avoid a head-on collision with the defendant. It is at this point the defendant has purposely positioned his vehicle to the front right of the witness’s vehicle to prevent him from turning into Mill Road – the defendants vehicle has come into contact with the witness’s vehicle. [9] The victim has then turned into Mill Road and pulled to the left to park. It seems the defendant has then parked behind the victim. [10] That the defendant dangerously operated his vehicle is not contentious – it is admitted. -- 2 of 16 -- 3 Application. [11] This is an application by the defendant per section 172 of Mental Health Act 2016. [12] The prosecution submits that consideration of the evidence given by Dr. Barnes including the “Mental Health, Fitness and Soundness Assessment Court Liaison Report” and upon an assessment of the evidence given by Dr. Ouzas, that I would find it likely that the defendant was not of ‘unsound mind’ at the time of committing the alleged offence on 8 December 2018. [13] The defendant submits the evidence strongly supports a conclusion that the defendant’s reaction, and then manner of driving, has no tangible objective. It could only have led to an accident between the two vehicles or a confrontation between the defendant and Mr. Smigliani, as such the defendant was, at the time, deprived of the capacity to control his actions and/or to know that he ought not do the act. [14] Section 172 MHA confers on the Magistrates Court the jurisdiction to deal with questions of unsoundness of mind and fitness for trial where a defendant has been charged with a simple offence. The section provides: Section 172 – Power to dismiss complaint – unsound mind or unfitness for trial. (1) This section applies if - (a) a complaint for a simple offence is to be heard and determined by a Magistrates Court; and (b) the court is reasonably satisfied, on the balance of probabilities, that the person charged with the offence – (i) was, or appears to have been, of unsound mind when the offence was allegedly committed; or (ii) is unfit for trial. (2) The court may dismiss the complaint. The term “simple offence” carries the same meaning as that contained in the Justices Act 1886 (Qld) – to mean; “any offence (indictable or not) punishable, on summary conviction before a Magistrates Court, by fine, imprisonment, or otherwise.” The first limb of s 172(1)(b) MHA then, requires the court to be reasonably satisfied, on the balance of probabilities, that a defendant was, or appears to have been, of unsound mind when they are alleged to have committed the offence. -- 3 of 16 -- 4 Section 109 MHA Meaning of unsound mind; (1) Unsound mind means - (a) a state of mental disease or natural mental infirmity described in the Criminal Code, section 27(1); or (b) a state of mind described in the Criminal Code, section 28(1) for which the Criminal Code, section 27(1) applies to a person. (2) However, unsound mind does not include a state of mind resulting, to any extent, from intentional intoxication or stupefaction alone or in combination with some other agent at or about the time of the alleged offence.” Section 27 CC (Insanity) provides; (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) Except under section 27, a person is otherwise presumed to be of sound mind. Reasonably satisfied. [15] The degree of satisfaction required to exercise the power to dismiss a charge under section 172 of the MHA is expressed to be “reasonably satisfied, on the balance of probabilities”. The term “reasonably satisfied” is not defined in the MHA itself. [16] The term was recently well defined by Lynham DCJ in RRK v Queensland Police service [2019] QDC 176 at [12] to [15]. (1) Although not defined in the MHA, the term “reasonably satisfied” is one that is commonly used to prescribe the exercise of a power contained in a statute and it is an expression which is said to have a settled meaning in a curial context.1 In Briginshaw v Briginshaw (1938) 60 CLR 336, Dixon J at 362, in explaining the requirement that a decision maker be reasonably satisfied, observed: 1 Repatriation Commission v Smith (1987) 74 ALR 537 at 546 9 At 449-450 -- 4 of 16 -- 5 “It is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony, or indirect inferences.” [17] The Briginshaw approach was considered by the High Court in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449, where the plurality again emphasised that: 9 “The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities. That remains so even where the matter to be proved involves criminal conduct or fraud. On the other hand, the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove.” [18] Whilst the reasonable satisfaction required to make one of the findings under s 172 MHA is expressed to be on the civil standard of on the balance of probabilities, as was explained by the High Court in G v H (1994) 124 ALR 353 at 362: 10 “It has been clear since the decision in Briginshaw v Briginshaw that in civil cases the standard of proof is on the balance of probabilities, with due regard being had to the nature of the issue involved so that “[t]he seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal'’. Thus, if there is an issue of “importance and gravity”’, to use the words of the trial judge, due regard must be had to its important and grave nature.” [19] Although in a different statutory context, Keane JA in R v LR [2005] QCA 368 observed at [44] in respect to the term “reasonably satisfied” as contained in s 254 Police Powers and Responsibilities Act 2000 (Qld) that: “If a person is to decide that he or she is "reasonably satisfied" as to something it means that there must have been evidence available to him or her which can objectively be seen to support the decision that has been reached. A person may still be “reasonably satisfied” about a matter despite it being possible for another person to reach a different view based on the same material. As North J said in a slightly different context in Doyle v City of Glasgow Life Insurance Co, “reasonable persons may reasonably take different views”. It is only if there is no evidence that could reasonably be -- 5 of 16 -- 6 seen to support a particular conclusion that it is possible to conclude that the original decision-maker was not “reasonably satisfied”. (citations omitted) [20] At [17] His Honour then emphasised the dismissal of a charge under s 172 MHA as having the same consequence as a permanent stay of a proceeding; An order dismissing a charge under s 172 MHA will have the same consequence as an order permanently staying a criminal proceeding. It has long been held that ordering a permanent stay of a criminal proceeding as an abuse of process is a “drastic remedy” to be confined to a case that is “exceptional”2 or “extreme”3 because there is a “legitimate public interest in the disposition of charges of serious offences and in the conviction of those guilty of crime”4 and that “a permanent stay order has the practical effect of providing immunity from prosecution to a criminal defendant, leaving that criminal defendant under an “irremovable cloud of suspicion” and leaving the potential if not the likelihood of engendering within the community ‘a festering sense of injustice’, if not cynicism”. 5 The discretion conferred under s 172 MHA to dismiss a charge is a broad one. This is made clear from the terms of the section itself which predicates the exercise of the discretion to dismiss a charge on the court being “reasonably satisfied, on the balance of probabilities”. The power to permanently stay a criminal proceeding as an abuse of process is not, in my view, analogous to the power to dismiss a charge under s 172 MHA and it would be erroneous to interpret the section as permitting the court to dismiss a charge only in exceptional or extreme circumstances. Such a restrictive interpretation would be inconsistent with the terms of the section itself as well as the purpose for which s 172 MHA has been enacted. [21] At [18] his Honour alluded to the public interest and flow on effect from a decision to dismiss a charge pursuant to s 172 of the MHA. Nevertheless what the principles relating to the granting of a permanent stay do draw attention to is the public interest in those who have been charged with criminal offences being prosecuted as well as the potential for confidence in the administration of justice being undermined where a defendant is able to avoid prosecution when charges are not proceeded with. The practical effect of dismissing a charge under s 172 MHA is that a defendant will be immune from further prosecution. There may also be other consequences. For example a victim of an offence may be deprived of an order for compensation or providing a victim impact statement.6 Whilst it might be accepted that the dismissal of charges under s 172 MHA will often 2 Dupas v The Queen (2010) 241 CLR 237 at 250 [33] 3 The Queen v Glennon (1992) 173 CLR 592 at 605; Dupas v The Queen (2010) 241 CLR 237 at 250 [33][35] 4 Walton v Gardiner (1993) 177 CLR 378 at 396 5 Jago v District Court (NSW) (1989) 168 CLR 23 at 50 6 S 6(2)(f) of the Act expressly recognises the benefits to the victim of an offence being given the opportunity to express their views on the impact of the unlawful act to decision-making entities under the Act. -- 6 of 16 -- 7 involve relatively minor offences, the public interest in a defendant charged with a simple offence being prosecuted and punished for their offending should not, because of that, be regarded as less important than where the defendant is charged with a serious offence. For that reason, reasonable satisfaction on the balance of probabilities that a defendant was, or appears to have been, of unsound mind when they offended or is unfit for trial will necessarily require a court to consider the consequences which will flow from the court exercising the power dismissing a charge under s 172 MHA. [22] At [19] his Honour referred to the cogency and the standard of evidence required. However, a more relevant consideration to the exercise of the discretion contained in s 172 MHA relates to the cogency of the evidence required to reasonably satisfy a court on the balance of probabilities either that a defendant was, or appears to have been, of unsound mind when they offended or is unfit for trial. The approach developed by the MHC is that a finding that a defendant was of unsound mind when they offended or is unfit for trial should ordinarily be made “only in reliance on clear and convincing evidence, and upon a firm satisfaction consistent with the gravity of the proceeding”7 (my emphasis), although it will not be necessary that such a finding be made only in the clearest of cases.8 As explained below, although the procedure in the MHC for determining questions of unsoundness of mind or fitness for trial is more rigorous than that which s 172 MHA contemplates, nevertheless it would be expected that the power to dismiss a charge under s 172 MHA would also be exercised only where there was clear and convincing evidence that a defendant was of unsound mind when they offended or is not fit for trial (my emphasis). [23] At [24] his Honour then defined the process and test relevant to unsoundness. Accepting that the definition of “unsound mind” for purposes of s 172 MHA is the same as that contained in s 109 MHA, the discretion to dismiss a charge under s 172 will be exercisable only when a Magistrate is reasonably satisfied, on the balance of probabilities, that a defendant “was, or appears to have been” “in a state of mental disease or natural mental infirmity” as to deprive them of one of the capacities in s 27(1) Criminal Code. Two of the capacities referred to in s 27, the capacity to understand what the person is doing and the capacity to know that the person ought not do the act, are generally regarded as corresponding with the two capacities referred to in the M’Naghten Rules.9 These are sometimes described as “the cognitive capacities”.10 There is a third capacity referred to in s 27, the capacity to control the person’s actions, which is sometimes described as “the volitional capacity”. 7 R v Schafferius [1987] 1 Qd R 381, per Thomas J at 383 8 Attorney-General (Qld) v Kamali (1999) 106 A Crim R 269 at 273 9 Re M’Naghten’s Case (1843) 10 Cl & Fin 200; 8 ER 718 10 Re SAM [2003] QMHC 003, per Wilson J at [28] -- 7 of 16 -- 8 When a court is required to determine whether a charge should be dismissed under s 172 MHA, the focus will be on whether the defendant was, or appears to have been, of unsound mind when they offended or is unfit for trial. As to the first of these, having regard to the term “unsound mind” being defined in s 109 MHA to mean a state of mental disease or natural mental infirmity described in s 27(1) Criminal Code, the test to be applied in determining whether the discretion should be exercised under s 172(1)(a) may be expressed as follows: Is the court reasonably satisfied that at the time of committing the offence, the defendant was, or appears to have been, more probably than not, suffering from a mental disease or natural mental infirmity which deprived the defendant of one of the relevant capacities contained in s 27(1) Criminal Code. If the court were not so satisfied then the discretion contained in s 172 MHA could not be exercised. [24] At [32] to [36] his Honour detailed the level of expertise required to give an opinion, including the strength of the evidence required to dismiss a charge under s 172 MHA. (1) Whilst it can be accepted that the procedure for determining questions of unsoundness of mind or fitness for trial is intended to be less rigorous in the Magistrates Court for determining applications under s 172 MHA, nevertheless that less rigorous process does not obviate the need for any determination as to a defendant’s unsoundness of mind or fitness for trial to be made by a suitably qualified expert. A clinical nurse does not, in my view, possess the expertise to be able to proffer an expert opinion as to whether a defendant was of unsound mind when they offended or is unfit for trial by reason that they would not possess the specialised knowledge based on their training, study or experience11 to qualify them as an expert in diagnosing and determining such matters. This is implicitly borne out by the Chief Psychiatrist Practice Guidelines issued by Queensland Health to the Court Liaison Service (CLS), which states at paragraph 4.1: “Due to the requirements of the Magistrates Court in relation to evidence and witness testimony, CLSPs employed within the CLS at Nurse Grade 6 or Health Practitioner Level 3, or lower, may not provide advice to the Magistrates Court in relation to fitness for trial or soundness of mind.” (2) An assessment as to whether a defendant was of unsound mind when they offended or is unfit for trial will necessarily have to be undertaken by a psychiatrist or other suitably qualified expert. Unless there is evidence that an opinion expressed by a clinical nurse in a Court Liaison Services Report that a defendant was of unsound mind or is unfit for trial is based upon an assessment and determination made by a psychiatrist or other suitably qualified expert, then it is difficult to see how a court could act on the opinion for purposes of 11 Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 [85] -- 8 of 16 -- 9 determining an application under s 172 MHA in the absence of other evidence supporting such a finding. (3) What the practice direction also recognises is the right of a party to challenge the contents or opinions expressed in a Mental Health Assessment. This is an important right especially given the serious consequences which will flow from a decision to dismiss a charge under s 172 MHA. (4) The practice direction does not purport to cover the field with respect to disposing of matters under Chapter 6, Part 2 MHA. Whilst it contemplates such determinations being made in reliance upon the contents and opinions contained in a Mental Health Assessment, that does not preclude the court from receiving expert medical evidence as to a defendant’s mental health from other sources. For example, as was the case here, a defendant is at liberty to adduce their own expert medical evidence in support of an application under s 172 MHA. However, regardless of the source of the expert medical opinion concerning a defendant’s mental health, the prosecution will be entitled to challenge any such opinion which would extend to requiring an expert witness to give evidence if necessary. (5) Of course, whilst a court is not bound to accept the opinions of medical witnesses, where there is unanimity in medical opinion as to a defendant’s mental state and where there is no other evidence which displaces or casts doubt on that medical opinion, then in those circumstances that evidence should not be rejected.12 The practice direction accords with this principle by permitting a Magistrate to dismiss a charge based upon a Mental Health Assessment which is not disputed, although that does not absolve a Magistrate from the need to be reasonably satisfied, on the balance of probabilities, that the undisputed assessment provides sufficiently clear and cogent evidence permitting a finding that the defendant was, or appears to have been, of unsound mind when they offended or is unfit for trial. Dr. Ouzas. [25] Dr. Ouzas decribes the condition as an impulse control disorder characterised by sudden episodes of unwanted anger typified by hostility, impulsivity and recurrent aggressive outburst. He states, people with IED essentially ‘explode’ into a rage despite a lack of apparent provocation or reason. [26] Dr Ouzas has been treating the defendant for IED since 2016 by a combination of Escitalopram (20mg daily) and sodium valproate (1000mg twice daily). Dr Ouzas describes in his report an ideal therapeutic range between 85-100mg/L. Regular blood tests have been conducted showing consistent results. 12 Taylor v R (1978) 22 ALR 599; R v Chester [1982] Qd R 252; R v Michaux [1984] 2 Qd R 159 -- 9 of 16 -- 10 [27] Dr. Ouzas consulted the defendant by Skype, on 10 December 2018 during which he requested the defendant undertake a blood test to check his sodium valproate levels. The blood test results report a level of only 52mg/L on 10 December 2018. Dr. Ouzas therefore, reported there was a clear drop in the sodium valproate levels ‘around the time of the driving incident.’ The ‘incident’ occurred three days prior to the blood test. [28] The defendant reported to Dr. Ouzas that the defendant – on the day of the driving incident – was suffering from a fever (39 degrees) and a chronic lung infection. The defendant further reported the week prior he suffered from a wisdom tooth infection. [29] Dr Ouzas confirmed that antibiotics will affect the absorption of medications. [30] Dr. Ouzas opined the defendant was of unsound mind on the date of the incident based upon; • a review of the materials referred to at the start of this report • the objective evidence of the defendants sodium valproate levels, and • the dash cam footage showing the stressors to the defendant at the time of the incident [31] Dr. Ouzas is unaware as to whether or not IED has been relied on as a defence in any mental health proceedings. [32] He conceded the blood test (sodium valproate level 52mg/L) result was three days after incident and conceded sodium valproate levels may vary depending on when last dose was taken. Dr. Ouzas opined that the defendant had become symptomatic again ‘based on a conversation’ he had with the defendant via Scope. [33] Dr. Ouzas was unable to say with any certainty what sodium valproate levels would have been on 8 December 2018 (the day of the incident). The witness stated; “we’d only be speculating there, but my concern – because he’d become symptomatic again after a while of being quite well that because of his fever and infections and illness that the level had dropped, and that’s why we immediately tried to get the level done straight always, as soon as I was made aware.” [34] When asked if the defendant would he have had the capacity to know what he was doing was wrong in the circumstances - Dr Ouzas analogised the IED condition to a soldier suffering PTSD stating; “… for example – if a loud explosion is heard, a soldier thinks for a ‘split second’ they are back in Vietnam. That is, for a moment, they lose the capacity. The immediate reaction is to drop to the ground. As soon as they hit the ground they realise where they are and recognise the overreaction.” [35] Dr. Ouzas concluded; “With IED, for a ‘split second’ they react on an emotional level – disconnected from frontal lobe (rational decision making).” -- 10 of 16 -- 11 [36] Dr Ouzas gave evidence that the defendant’s condition had been under effective control until the incident. This view could only be as a result of self-reporting by the defendant given his admission he only became aware of the incident three days after it occurred. Dr. Barnes. [37] For the purposes of this matter the defendant was assessed by Dr Mark Barnes (Psychiatrist) and Paul Wilcox (Mental Health Court Liaison Officer). A Mental Health Fitness and Soundness Assessment was completed.13 [38] On 13 June 2019, the Court heard evidence from Dr Mark Barnes, Forensic Psychiatrist. Dr Barnes gave evidence consistent with the Court Liaison Report which he overviewed. [39] Of particular note, Dr Barnes asserts the following: (1) He agreed that IED is recognised by the International Classification of Diseases however, to his knowledge, IED has never be recognised in Queensland by a Mental Health Court/Tribunal or Magistrates Court (for the purposes of Section 172) as a disease of the mind giving rise to a defence under section 27 Criminal Code. (2) Dr. Barnes gave oral evidence to the effect that a therapeutic range of the relevant medication would be between 50mg to 100mg. He accepted that this range would vary according to the patient and that some patients might need a level at the higher end of the range or even sometimes above the range. (3) Dr. Barnes referenced ‘kleptomania’ as an analogous disorder – being an impulse disorder which, does not provide for a defence under section 27 Criminal Code. [40] Dr Barnes reported; (1) Additionally, Mr Dancey was not, in my opinion, deprived of any of the relevant capacities at the time of the alleged offence. He may have been, as a result of his difficulties, (IED), infected tooth and chest with accompanying fever and lower blood level of medication made less able to control his actions, but he would not have been actually deprived of the capacity to control his actions. He was able to continue to drive his vehicle during the episode. (2) Dr. Barnes further observed that the defendant utilised ‘breathing techniques’ to calm himself as evidence that he was not deprived of the relevant capacities. (3) His evidence is the IED may have contributed to his behaviour but would not have deprived him of the capacity to control his actions. [41] Consequently he concluded the defendant to be of sound mind at the time of committing the offence. 13 Exhibit 1. -- 11 of 16 -- 12 [42] Decision/Findings. (1) The offence for which the defendant askes to be excused is Dangerous Operation of a Motor Vehicle. (2) The offence is punishable by a maximum of 200 penalty units or 3 years imprisonment and, a minimum period of disqualification of 6 months. (3) The offence is a serious offence – the foreseeability of injury or worse, is palpable. (4) The offence – ‘dangerous operation of a motor vehicle’ can be committed under different circumstances. The offence committed by the defendant is characterised as ‘road rage’. The offence is prevalent. The origin of this offending commenced in the same way as any dangerous operation offence – that is, a driver loses his or her temper themn operates his or her vehicle in a way that is dangerous to the public and other road users. That loss is a compulsive reaction. (5) I accept the defendant was then and is, diagnosed with an Intermittent Explosive Disorder (IED). Dr Ouzas describes the IED as “severe” on page three of his report. (6) I accept, as Dr Ouzas said in his evidence, that the defendant – at the moment he saw the victims’ vehicle, that he may have, then and there, ‘for that moment’ lost the capacity to control his action. (7) I have watched the dash cam footage several times – its lasts approximately 60 seconds which, in the circumstances is a considerable time. (8) The decision therefore requires an assessment of the cogency of the evidence as it is relevant to the IED condition the offending behaviour and of course the law relevant to S. 172 MHA. (9) In my view - given the serious nature of the offence, the cogency of the evidence, in so far as the capacity of the defendant is concerned, must be strong and unequivocal – a higher level of evidence in accordance with the Brigginshaw approach mentioned above. “The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities. That remains so even where the matter to be proved involves criminal conduct or fraud. On the other hand, the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove.” 9 -- 12 of 16 -- 13 [43] I accept neither party bears the onus of proof. The nature of this proceeding requires a consideration of the evidence, then a finding as to whether I am reasonably satisfied on the balance of probabilities that the defendant, at the time he committed the offence was deprived of one or more of the S.27 CC capacities. [44] In A-G (Qld) v. Bosanquet & Ors14 the QCA stated; “The capacity for control however is not in my view simply about the capacity to control one’s physical acts or ‘motor control’ it is actually to do with ‘volition’ which is whether that act is truly a willed act of the person in that it was an act they freely chose to do or whether it is an act driven by the delusions.” [45] SCN v Director of Public Prosecutions & Anor15 the QCA confirmed the position in Queensland is as stated in Stapleton16 and, by reference to M’Naghten’s case17 stated;18 “The focus, the court stated, must be on an accused’s knowledge of the nature and quality of the act and of its wrongness. For it is evident that a jury although satisfied that no capacity existed in a particular accused to reason at all may think that at the back of it all was an awareness of the nature of the act and of the fact that other people might regard it as wrong more especially if that means regarded by the law as wrong. That would not lead to a conviction if the jury understands that, given a disease disorder or defect of reason, then it is enough if it so governed the faculties at the time of the commission of the act that the accused was incapable of reasoning with some moderate degree of calmness as to the wrongness of the act or of comprehending the nature or significance of the act of killing. See Reg v Davis, Stephen v Kay, Stephen J. In v Porter this was expressed by Dixon J 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.” 14 A-G (Qld) v Bosanquet & Ors (2012) QCA 367 at [44] 15 (2016) QCA 237 16 Stapleton v The Queen (1952) 86 CLR 358 17 Re M’Naghten’s Case [1843-60] All ER 229 18 SCN v Director of Public Prosecutions & Anor (2016) QCA 237, at [7] -- 13 of 16 -- 14 [46] The law relevant to S. 27 CC is well established. I have considered the factual evidence and expert evidence of both Dr. Barnes and Dr. Ouzas relevant to the established principles and law. The qualifications and expertise of both witnesses is accepted. [47] Even if the expert evidence was not controversial – in that both agreed the defendant was deprived of the relevant capacities – I would still be required to be reasonably satisfied, on the balance of probabilities that the evidence supported a finding that the defendant was, or appears to have been, of unsound mind when he offended. [48] That is not the case here – the opinions are polarised. I am therefore required to assess the cogency of both Dr. Barnes and Dr. Ouzas keeping in mind the approach developed by the Mental Health Court. [49] That is – that a defendant, was of unsound mind when they offended should ordinarily be made; “only in reliance on clear and convincing evidence, and upon a firm satisfaction consistent with the gravity of the proceeding.”19 [50] I recognise that the procedure in the MHC for determining questions of unsoundness of mind or fitness for trial is more rigorous than that which s 172 MHA contemplates, however it would be expected that the power to dismiss a charge would also be exercised; “only where there was clear and convincing evidence that a defendant was of unsound mind when they offended or is not fit for trial.” [51] The incident occurred on 8 December 2018. [52] The defendant consulted Dr. Ouzas on 10 December 2018 via tele-medicine (Skype). [53] The defendant was assessed by Dr. Barnes and Court Liaison Officer Mr. Paul Wilcox on 2 May 2019. [54] Under cross examination, Dr. Barnes maintained his opinion that the defendant was at the time of the incident impaired but not deprived of the relevant capacities. Dr. Barnes conceded that the defendant may have been made less able to control is actions, but he would not have been actually deprived of the capacity to control his actions. [55] Dr. Ouzas opined the defendant was of unsound mind on the date of the incident based upon a review of the materials referred to at the start of his report, the objective evidence of Mr Dancey’s sodium valproate levels and the web cam footage showing the stressors to Mr. Dancy at the time of the incident. [56] Below is a list of the materials; Form QP9. Dash camera footage of the actual incident. Witness statements of Domenico and Ida Smigliani. S.109 Mental Health Act 2016 (Qld) extract. 19 R v Schafferius [1987] 1 Qd R 381, per Thomas J at 383 -- 14 of 16 -- 15 S. 27 & 28 Criminal Code 1899 (Qld) extract. [57] I have a concern about the cogency of the evidence and opinion arrived at by Dr. Ouzas for the following reasons. • There is no clear and concise evidence that an IED is a disorder to which s 27 Criminal Code can apply. • Neither Psychiatrist is aware if an IED has ever been relied upon as a defence in a MHC or MHA proceeding. • There is no clear and convincing evidence as to the defendants Sodium Valproate levels on the day of the incident. • The only objective evidence as to a sodium valproate level is the result of a test three days after the incident. • There is no clear and convincing evidence to substantiate the opinion of Dr. Ouzas that symptomatically the sodium valproate was not working on the day of the incident • There is not clear and convincing evidence the defendants IED manifested due to recent illness involving fever and recent ingestion of antibiotics. • Dr. Ouzas reports that Valproate levels may vary considerably during interdosing intervals. • Dr. Ouzas reports that interpretation depends on knowledge of sampling in relation to the previous dose. Dr. Ouzas was unaware of the level of the previous dose. • Dr. Ouzas reports that the defendant’s sodium valproate levels dropped to 52 mg/L around the time of the incident - well below the therapeutic range. • In cross-examination he admitted he did not know – and would only be guessing as to the Sulphate levels on the day of the incident. • Dr. Ouzas opinion of the mental state of the defendant on the date of the incident is self-reported by the defendant to the doctor. • He is unable to give an expert opinion as to the time period – that an IED episode would generally last. • Dr Ouzas contends the IED episode is commensurate with a ‘split second’ reaction suffered by soldiers suffering PTSD. • Dash Cam footage reveals the defendant dangerously operated his vehicle for some 60 seconds. • The defendant had the capacity to utilise breathing techniques to calm himself at some time during the incident. • There is no evidence on the web cam footage showing the stressors to Mr. Dancy at the time of the incident -- 15 of 16 -- 16 [58] After a consideration of the report and the evidence given by Dr. Ouzas I am of the view that his opinion is not supported by clear, convincing and unambiguous evidence. [59] There is no similar concern with the report and evidence given by Dr. Barnes who considered the same evidence and data concluding that the defendant at the relevant time, because of his difficulties, may have been less able to control is actions – but not actually deprived of the capacity to control his actions. [60] I am therefore reasonably satisfied on the balance of probabilities that the defendant, whilst he might have been impaired, was not deprived of the relevant capacities at the time the offence was committed. [61] The application is dismissed. -- 16 of 16 --