Batchler, Re [2016] QMHC 12

MENTAL HEALTH COURT CITATION: Re Batchler [2016] QMHC 12 PARTIES: REFERENCE BY THE DIRECTOR OF MENTAL HEALTH IN RESPECT OF JAMES ANDREW BATCHLER FILE NO/S: No 0265 of 2014 DELIVERED ON: 29 November 2016 DELIVERED AT: Brisbane HEARING DATE: 31 October 2016 JUDGE: Boddice J ASSISTING PSYCHIATRISTS: Dr R Phillipson Dr F Varghese ORDER: 1. At the time of each of the alleged offences the subject of the reference the defendant was not of unsound mind as defined in the Schedule to the Mental Health Act 2000. 2. In respect of each of the alleged offences the defendant is fit for trial. 3. Each of the alleged offences is to proceed according to law. 4. Copies of the reports and transcript are to be released to the parties for use in the criminal proceedings. CATCHWORDS: Davie v Lord Provost, Magistrates & Councillors of the City of Edinburgh 1953 SC 34, cited LAI v Director of Public Prosecutions (Qld) [2016] QCA 287, cited Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305, cited Ramsey v Watson (1961) 108 CLR 642; [1961] HCA 65, cited SCN v Director of Public Prosecutions (Qld) [2016] QCA 237, cited Stapleton v The Queen (1952) 86 CLR 358; [1952] HCA 56, cited COUNSEL: J D Briggs for the defendant A E Loode for the Director of Public Prosecutions (Qld) S J Hamlyn-Harris for the Director of Mental Health SOLICITORS: Legal Aid Queensland for the defendant -- 1 of 14 -- 2 Director of Public Prosecutions (Qld) Crown Law for the Director of Mental Health [1] By reference, filed 14 October 2014, the Director of Mental Health referred to this Court the mental condition of James Andrew Batchler at the time of numerous offences allegedly committed in February, March and April 2014. [2] The offences the subject of the reference are assault or obstruct police and drunk or disorderly in premises, both on 24 February 2014, breach of bail undertaking on 19 March 2014, commit public nuisance and drunk in a public place, both on 26 March 2014, wilful damage of police property on 27 March 2014, commit public nuisance on 12 April 2014, two breaches of bail undertaking, both on 15 April 2014, commit public nuisance, deposit injurious matter on road, serious assault of police, threatening violence – discharge a firearm and two charges of wilful damage, all on 17 April 2014. [3] It is not in dispute that the defendant suffers from a longstanding mental illness. It is also not in dispute the defendant is currently fit for trial. At issue is whether at the time of any of the alleged offences the defendant was, as a consequence of his mental illness, deprived of any of the requisite capacities and, if so, whether that deprivation was contributed to, to any extent, by intoxication. Background [4] The defendant was born on 8 December 1979. He first came to the attention of Mental Health authorities in May 2004 when he was admitted to the Redcliffe-Caboolture Mental Health Unit. At that time he presented with a marked psychotic disorder with disorganised and erratic behaviour, distorted thinking, paranoid ideation, auditory hallucinations and very variable mood state. He gave a history of having become withdrawn and isolated in the year or two preceding that admission. [5] The defendant was diagnosed as having a psychotic episode of uncertain origin, possibly drug induced. He received medication. He was discharged into the community. After a period of instability, during which time he was subject to an involuntary treatment order, his illness was reported to have completely settled by 2006. [6] The defendant worked as a fly in/fly out electrician for about 10 years prior to the alleged offences. He lost that job due to interpersonal conflict, behavioural problems and drug related issues. The defendant identified a change in mental state around Christmas 2013. He reported his mental state progressively deteriorated until April 2014, eventually leading to a full-blown psychotic episode. The defendant reported behavioural changes such as disorganisation and irritable mood and aggression. [7] After the commission of the alleged offences on 17 April 2014, the defendant was admitted as an inpatient in a Mental Health facility. He remained an inpatient for almost two months. At the time the defendant was admitted to hospital, he was observed to be in a highly agitated state with poor insight into his condition. The defendant also was -- 2 of 14 -- 3 recorded to have an abnormally high calcium level. On investigation, this was found to be caused by hyperparathyroidism. [8] On 21 May 2014, the defendant underwent surgery to remove a parathyroid adenoma. The defendant’s mental state settled rapidly after surgery and with medication. The defendant remained compliant with the medication thereafter. His mental state improved such that by the time of discharge he was pleasant, polite and appropriate in his interactions with others. He also demonstrated improved insight into his illness. [9] The defendant continued to respond well to medications and remained abstinent from illicit substances. He commenced an honours engineering degree. His life had a period of stability. In February 2015 his involuntary treatment order was revoked. Shortly thereafter, the defendant ceased his prescribed medication, against advice. However, his mental health remained stable. He achieved very good marks in his degree and exhibited no signs of mental health deterioration. [10] Sometime after July 2015, the defendant commenced using cannabis and started to relapse. He was readmitted to hospital by his parents who were unable to manage his deteriorating behaviour. The defendant was recorded as having presented as elevated, hypomanic and appearing to experience a psychotic relapse. He expressed grandiosity and other delusional beliefs. He was reported to have been making sexually disinhibited comments, and speaking in an agitated way and of religious themes. He was also reported to be disorganised and to have thought disorder with a reduction in diet and self-care. The defendant was placed on an involuntary treatment order. [11] Dr Polkinghorn provided a report dated 3 December 2015 in respect of that admission. Dr Polkinghorn opined that cannabis seemed to be a possible trigger for his relapse, although its use could be a consequence of the relapse itself. Dr Polkinghorn noted the defendant was undertaking a stressful course, was sleeping less and his relapse was difficult to treat. The defendant remained on an involuntary treatment order at that time. Alleged offences [12] The February offences are alleged to have arisen out of an incident at a surf club. The defendant refused to leave and became aggressive towards staff. He was later spoken to by police in the surrounding area. He refused to produce identification, fled the scene and resisted being handcuffed by police. The defendant gave an account of drinking quite heavily that day and using Duromine tables prescribed by his general practitioner. [13] The 19 March 2014 offence concerned a failure to attend Court in accordance with his bail undertaking. The defendant believed he had sent an email advising the Court of his inability to attend due to work commitments. He understood an email would suffice. [14] The remaining March offences arose out of an alleged incident outside a nightclub whilst the defendant was clearly intoxicated. He had been ejected from the club and sought to regain entry. Members of the public reported to police that he was making threats to kill people. Police observed a grossly intoxicated defendant exhibiting large mood swings -- 3 of 14 -- 4 “consistent with the use of an unknown drug”. The wilful damage offence arose out of his behaviour in a police cell. [15] The alleged offence of 12 April 2014 occurred after the defendant was removed from an aircraft, having created a disturbance. He is alleged to have sworn and screamed at people in the airport, as well as having threatened staff. The defendant left the scene and was subsequently arrested by police. The defendant’s account of this incident was that he had consumed six to eight beers and was also taking medication. The defendant did not believe he was too drunk to fly and became agitated when the flight was delayed. [16] The offences on 15 April 2014 related to a failure by the defendant to comply with a condition of each of his bail undertakings. The defendant’s account was that he was unable to attend Court and tried to communicate this fact to the Court. [17] The alleged offences on 17 April 2014 arose out of incidents in the early afternoon and late evening on 17 April 2014. Early that afternoon, the defendant is alleged to have entered a fish shop near his residence and to have become verbally abusive to its employees. Police attended the defendant’s residence and spoke to him about the incident and his earlier breach of bail. The defendant was reported as appearing reasonably calm. [18] Later that same evening, police were contacted by the manager of the defendant’s unit complex. The manager reported the defendant was causing a disturbance. The defendant was heard to say he had a gun. As police were approaching the residence they received a further report that the defendant was in the underground carpark revving his motor bike and driving his motor vehicle into a large wall causing damage to that wall. The defendant subsequently climbed onto the roof before returning to his unit and causing a great deal of damage, throwing items onto the roadway below. The defendant was reported to be yelling and screaming and was in a very agitated state. Witnesses reported seeing him armed with a spear gun. He was also seen with a shard of glass on the balcony. [19] Police attended the scene. A siege situation developed which continued throughout the night. Police did not attempt to enter the residence. Early the next morning the defendant responded to requests to leave the unit. He was arrested and charged with the alleged offences. The offences included making threats to police whilst armed with a shifting knife or spanner and having struck a police officer on the head with a glass bowl. Reporting psychiatrists [20] Dr Jacobs provided a Section 238 report on 24 July 2014. At that time, the defendant was being treated pursuant to an involuntary treatment order. Dr Jacobs was his inpatient treating psychiatrist. Dr Jacobs noted the defendant had initially been assessed by a court liaison officer following his arrest. Due to concerns about his mental state he was admitted to the Nambour General Hospital where he remained an inpatient from 22 April 2014 to 20 June 2014. [21] Dr Jacobs noted the defendant’s past history of psychiatric problems, including his first admission with a drug induced psychosis/schizo-effective disorder in 2004 and his subsequent admission in 2005. Dr Jacobs noted that both episodes of psychosis were -- 4 of 14 -- 5 associated with substance abuse. The defendant was thereafter treated under involuntary treatment orders from 24 May 2004 to 30 June 2005 and 28 April 2005 to 27 February 2006. He was reported to have lost contact with the service after 2006 until he presented to the Mental Health Service in Rockhampton in April 2014. [22] Dr Jacobs reported that when the defendant first presented he had an irritable manner, terse speech, ideas of flight and grandiosity and an elevated and labile mood. His thoughts were pre-occupied with multiple grandiose and paranoid themes. Collateral information confirmed a decline in his mental state over the previous six months. There was a history of increasing volatility and pre-occupation with grandiose ideas of producing a movie and developing a large business with multiple employees. [23] Dr Jacobs reported the defendant had only a vague recollection of most of the offences. The defendant reported they were committed while he was heavily under the influence of alcohol and whilst he was taking Duromine tablets for weight loss. The defendant reported he had always been a heavy drinker and that he had started having blackouts over the last two years. He denied using other psychoactive substances over that period, although there was a suggestion he may have used steroids. [24] The defendant told Dr Jacobs he did not have a clear memory of the events on 17 April 2014 and that he was not “thinking clearly” during this period. The defendant reported taking Duromine tablets and of having consumed large quantities of alcohol. He had consumed at least half a bottle of spirits that day. He denied used cannabis or any other drugs. [25] In Dr Jacobs’ opinion, the defendant suffers from a mental illness. His current diagnoses include bipolar effective disorder – manic episode, polysubstance abuse and hyperparathyroidism. Dr Jacobs opined that the defendant’s mental state had progressively deteriorated from Christmas 2013 until April 2014, eventually culminating in a full blown psychotic episode. There were several indicators of a deteriorating mental health, including increasing argumentative and aggressive behaviour and deteriorations in his relationships. [26] In Dr Jacobs’ opinion, the defendant’s progressive, aggressive and erratic behaviours were associated with a developing psychosis. Although he was intoxicated for a great deal of the time, the severity of the defendant’s developing psychosis on its own was probably sufficient to have deprived him of the capacity to control his actions. [27] Dr Grant examined the defendant on 12 April 2016, pursuant to a Court Examination Order. The defendant told Dr Grant that for one or two months prior to the events of 17 April 2014 incident he had been taking Duromine and also peptides. He was drinking regularly and also using ecstasy on a fairly regularly basis. The defendant become increasing disturbed and unwell in the period leading up to those alleged offences. He described feeling extremely unenergetic, overconfident and becoming very grandiose. He was not sleeping well and was attending the gym excessively. [28] The defendant gave an account to Dr Grant that he had lost his employment due to his behaviour. Workmates found it bizarre and intimidating. Thereafter he exhibited -- 5 of 14 -- 6 grandiose ideas about future employment prospects. He described becoming completely disorganised and that his living arrangements were “a complete mess”. The defendant gave an account of drinking heavily in the period leading up to the commission of the alleged offences. [29] The defendant said on 17 April 2014, at around the middle of that day, he mixed up whatever alcohol he had left. It included Gin, Tia Maria, Vodka and Whisky. When mixed together, it was the equivalent of half to a full bottle of spirits. He drank that mixture in two lots, within about one hour. Earlier that day he had walked to Maroochydore to try to arrange a business loan. He said he did not make much sense at the bank. The defendant returned to his unit. [30] The defendant said he attended the shop, the subject of the first incident on that day, in order to obtain food. The defendant said when he saw a female come into the shop, he had a bizarre experience. He was convinced the owner of the shop was doing some witchcraft to the female. He could not remember exactly what happened in the incident. He noted that as he was using Duromine at the time, it made him feel less drunk. He accepted his behaviour was terrible. [31] The defendant gave an account of returning to his unit before getting into his car and doing a burn out in the underground carpark and crashing into a wall. He thought he must have been affected by alcohol. He returned to his unit. Thereafter, events were vague. He remembered bashing holes in the walls, being angry and upset, making a lot of noise and throwing things off the balcony. He recalled police being around. They had their guns drawn. He was convinced if he went outside he would be shot dead on sight. He did not believe he could go outside with his hands up. [32] The defendant said after about one hour he decided to go to sleep. He believes he slept for a number of hours. On waking in the morning, he found the police still there. The defendant said by that stage “the alcohol had worn off and he was a little bit more clear- headed”. He decided he would get into the spa. He then got dressed and left the unit with his hands up. [33] Having considered that history, the assessments following the events of 17 April 2014, together with an account of the defendant’s past and recent psychiatric history and his alcohol and drug history, Dr Grant opined that the defendant suffers from bipolar affective disorder which had been manifested by one possible mild depressive episode in his early twenties and three subsequent episodes of mania or psychotic degree in 2014 and 2015. The 2014 episode developed over a period of months prior to the alleged offences, the subject of the reference. It became more severe in the weeks and days leading up to his dismissal from work, the subsequent incident at the airport and the events of 17 April 2014. [34] Dr Grant opined that the use of drugs, both illicit and prescribed, appeared to have been very relevant to the triggering of episodes of illness. He noted marijuana and some amphetamines were most relevant in 2004. In 2014, the defendant was taking a combination of a prescribed substance, recreational ecstasy, marijuana and a significant alcohol binge pattern. He was also using supplements such as peptides and possibly -- 6 of 14 -- 7 steroids. Dr Grant noted that following the 2014 episode, the defendant was diagnosed with severe hypercalcaemia caused by parathyroidadnoma, which required surgery. [35] Dr Grant opined that disturbed calcium levels can contribute significantly to psychiatric symptoms. Accordingly, the hypercalcaemia may have been a significant factor in the 2014 episode, although it was not an essential factor in his illness having regard to their being no evidence of such disturbances in 2004 and in 2015 (by which time his calcium had returned to normal levels). Dr Grant noted that excessive use of alcohol had clearly been a fairly long term intermittent problem. [36] Dr Grant opined that whilst the defendant was becoming quite unwell and appeared to have had manic symptomology, the earlier episodes in February and March probably did not occur at a point where it could be said the defendant had grossly manic symptoms or psychotic features. Further, all occurred in the context of voluntary intoxication with marijuana, intermittent ecstasy and excessive alcohol abuse combined with the stimulant effects of Duromine. Dr Grant opined there was insufficient evidence to say the defendant’s mental illness alone was sufficient to deprive him of any of the relevant capacities at the time of any of the alleged offences in February and March 2014. [37] Dr Grant opined that in respect of the offences from 12 April 2014 to 17 April 2014, the evidence suggested the defendant was extremely unwell with severe manic features of a psychotic depth which were having a profound effect upon his perceptions of his surroundings and on his behaviour. The extent of his manic symptomology was significant, with severe manic and psychotic features continuously evident in the watch- house and in the hospital for which he required prolonged, vigorous treatment. [38] Dr Grant opined that the defendant’s psychiatric illness, on its own, was sufficient during April to have deprived the defendant of the capacity to know he ought not do the acts the subject of the alleged offences between 12 April 2014 and 17 April 2014. The defendant was also deprived of the capacity to control his actions but Dr Grant could not say that alcohol would not have contributed to the deprivation of that capacity. [39] Accordingly, Dr Grant supported a finding of unsound mind for all of the offences in April 2014. In his opinion, the defendant’s “bipolar affective disorder was sufficient on its own to produce deprivation of the capacity to know that he ought not do the act. It may also have deprived him at its most severe during the siege episode of the capacity to really understand what he was doing”. Evidence [40] In evidence, Dr Jacobs opined that intoxication was a significant but not primary factor in the defendant’s presentation at the time of the alleged offending. Alcohol was a disinhibiting trigger but there was underlying pathology, which was the primary cause of his offending. There was a long persistent period of being unwell with a gradual escalation leading to his ultimate admission in April 2014. At the time of the April offences, the defendant was deprived of the capacity to control his behaviour and possibly of the capacity to know he ought not do the acts. -- 7 of 14 -- 8 [41] Initially, Dr Jacobs gave evidence that intoxication contributed to the deprivation of relevant capacities at the time of all of the alleged offences. There was clear evidence he had consumed a significant quantity of alcohol which would have had an impact on the deprivation of capacity. Dr Jacobs noted that alcohol has a generally disinhibiting affect. Later, Dr Jacobs opined that whilst alcohol would have had a disinhibiting affect and contributed to the deprivation of the capacity of control, the deprivation of the capacity to know he ought not do the act would be there regardless of intoxication. Dr Jacob did note, however, that patients suffering from psychosis, if they take alcohol, are more likely to express the symptoms of that psychosis.1 [42] Dr Jacob opined that the primary cause of the defendant’s deprivation of capacity was bipolar mood disorder, with or without the calcium disturbance. Alcohol would have served to disinhibit him at the time of the alleged offences. When pressed further in evidence, Dr Jacobs opined that intoxication did not contribute to any extent to the deprivation of the capacity to control his actions or of the capacity to know he ought not do the acts in question. [43] In evidence, Dr Grant also opined that at the time of the alleged offences in April 2014, the defendant was as a consequence of the mental illness, deprived of two capacities, the capacity to control his actions and the capacity to know he ought not do the acts. The deprivation of the defendant’s capacity to control his actions was, to an extent, contributed to by intoxication. However, the deprivation of the capacity to know he ought not do the acts was not, to any extent, contributed to by intoxication. Dr Grant noted that the calcium problem would have exacerbated his psychiatric symptoms. [44] Dr Granted accepted the defendant had consumed a significant amount of alcohol on 17 April 2014. However, the defendant had been behaving bizarrely before that date. Dr Grant accepted the defendant had told him that after he slept for some hours he felt the alcohol had worn off and he was little bit more clear-headed and that this had occurred prior to the defendant’s surrendering to police. Dr Grant observed the defendant said, in that context, that he decided to have a spa. Dr Grant considered that an unusual thing to do, in circumstances where police were waiting outside. [45] When asked whether the change in presentation suggested the defendant retained some capacity at that point and that what had changed was that the alcohol had worn off, Dr Grant opined: “… You can’t assume thought [sic] that he had suddenly thought that what he was doing was wrong because he didn’t think that when he was seen by police and he didn’t think that when he was in hospital, he didn’t think it before. I think that he decided that he – he’d have to give himself up to police but I don’t think that you can assume that suddenly, all his manic delusions and his misunderstanding of the total situation had disappeared. … I think he was probably still as delusional but for whatever reason, decided that he’d better give himself up to police.”2 1 Transcript 1-12/1-4. 2 T1-19/38-45. -- 8 of 14 -- 9 [46] Dr Grant conceded the change in his level of intoxication may have made him less disinhibited and led him to co-operate more with police but opined there was no evidence he ceased being manic. Dr Grant did not consider the defendant’s psychosis, his delusions and the acting on those delusions for a prolonged period of time could be attributed “just to alcohol”. Alcohol did not cause his delusional belief or his psychosis and alcohol did not contribute to the deprivation of capacity to know he ought not do the acts. Dr Grant considered it possible his behaviour during the siege indicated a fluctuating level of confusion. His calcium disorder may have contributed to his confusion. Submissions [47] The defendant submits the Court ought to accept Dr Grant’s opinion that the defendant was of unsound mind at the time of the alleged offences in April 2014 and certainly at the time of the alleged offences on 17 April 2014. The defendant was suffering from a mental illness as well as parathyroid psychosis. The combination of those two conditions deprived him of the capacity to know he ought not do the acts in question. That deprivation was not, to any extent, contributed to by intoxication. [48] The Director of Public Prosecutions submits the Court would accept Dr Grant’s opinion that the defendant was not deprived of any of the capacities at the time of the offences prior to April 2014 but would not accept his opinion that the deprivation of capacity at the time of the offences in April 2014 was not, to any extent, contributed to by intoxication. All of the offences in April 2014 were accompanied by significant intoxication. On 17 April 2014, the defendant, by his own account, was able to reason he ought to surrender after the effects of intoxication had worn off. On that basis, the Court ought to find intoxication contributed, to some extent, to the defendant’s deprivation of the capacity to know he ought not do the acts on 17 April 2014. [49] The Director of Mental Health submitted the question of unsound mind for the offences of 17 April 2014 was finely balanced having regard to the defendant’s account that after he had slept and the alcohol had worn off he was more clear headed and decided he would surrender with his hands up. Assisting psychiatrists [50] Dr Varghese advised that whilst the defendant clearly had a quite serious psychiatric illness at the time of all of the alleged offences, any deprivation of capacity in respect of the offences prior to 17 April 2014 was, to some extent, contributed to by intoxication. Accordingly, the defendant does not have a defence of unsound mind in respect of those earlier alleged offences. [51] In respect of the offences on 17 April 2014, Dr Varghese advised that the defendant was manic at the time as well as suffering from parathyroid disease. This is a rare condition but almost always presents with some psychiatric symptoms, including mania and confusional states of varying intensity. The defendant was, as a consequence of his mental illness and his parathyroid disease, deprived of the capacity to control his actions and of the capacity to know he ought not do the acts in question. -- 9 of 14 -- 10 [52] Dr Varghese advised it would be difficult to contend alcohol did not have some effect on the deprivation of the capacity for control but the impact of intoxication on the deprivation to know he ought not do the acts is “problematic”. The defendant was suffering a quite severe psychotic state from a combination of issues of mania and hyperparathyroidism. He subsequently had a prolonged inpatient care and treatment resistant state which settled quickly after a partial parathyroidectomy, indicating the principal issue was probably the hyperparathyroidism superimposed on mania. [53] In those circumstances, Dr Varghese advised the opinion of Dr Grant ought to be accepted that the deprivation of the capacity to know he ought not do each of the acts the subject of the alleged offences of 17 April 2014 was as a result of his bipolar disorder and the hyperparathyroidism and was not affected to any extent by intoxication. [54] Dr Phillipson concurred with Dr Varghese’s advice. Dr Phillipson advised the severity of the defendant’s mental illness was not such as to support a finding of unsound mind, absent intoxication, at the time of the alleged offences prior to or on 15 April 2014. However, by 17 April 2014 the illness was becoming more severe. Whilst intoxication caused disinhibition, and therefore would have, to some extent, contributed to the deprivation of capacity to control his actions on 17 April 2014, intoxication did not contribute to the deprivation of the capacity to know he ought not do any of the acts the subject of the alleged offences on 17 April 2014. Discussion [55] Having considered all of the material placed before the Court, I accept that by early 2014 the defendant was experiencing a seriously deteriorating mental state. This deterioration was accompanied by hyperparathyroidism. I accept that condition contributed to a deterioration in the defendant’s mental health, leading ultimately to a manic state by April 2014. [56] Whilst the defendant was suffering psychosis at the time of the alleged offences in February and March 2014, the defendant was also abusing illicit substances, taking Duromine and significantly abusing alcohol on a regular basis. The abuse of alcohol in February and March 2014 was to such a level that the defendant’s state of mind was, to some extent, contributed to by the presence of intoxicating substances. I accept the opinion of Dr Grant that, in respect of the alleged offences in February and March 2014, the defendant was not of unsound mind because intoxication contributed to any deprivation of capacity at the time of any of those alleged offences. [57] I accept that at the time of the alleged offences on 12 and 15 April 2014 the defendant’s deteriorating mental state, in conjunction with his hyperparathyroidism, rendered the defendant manic. However, I do not accept that his mental illness at that time, even in conjunction with that physical condition, was of sufficient magnitude to have, alone, deprived the defendant of any of the requisite capacities. The defendant’s abuse of alcohol was sustained and extensive at the time of those alleged offences. [58] I do not accept Dr Grant’s opinion that intoxication did not contribute, to any extent, to any deprivation of capacity in relation to the alleged offences on 12 and 15 April 2014. -- 10 of 14 -- 11 That opinion does not give due regard to the defendant’s sustained abuse of alcohol at that time. [59] I accept the advice of the assisting psychiatrists that the severity of the defendant’s illness at that stage was not such as to support a finding of unsound mind, absent intoxication. I am satisfied intoxication, to an extent, contributed to the deprivation of the relevant capacities at the time of the commission of the alleged offences on 12 and 15 April 2014. [60] The remaining issue is the effect of intoxication on the defendant’s state of mind at the time of the alleged offences on 17 April 2014. I accept by that time, the defendant was severely manic. I accept he remained so for an extended period after the alleged offences. I accept that his mental illness, in conjunction with his hyperparathyroidism, was at that stage so severe that it deprived him of the capacity to control his actions and of the capacity to know he ought not do the acts in question. [61] There is, however, clear evidence of significant intoxication that day. On the defendant’s own account, he drank between half and one bottle of mixed spirits. I am satisfied the effects of that intoxicating concoction, to some extent, contributed to the deprivation of his capacity to control his actions on that day. I am also satisfied the effects of that intoxicating concoction, to some extent, contributed to the deprivation of the defendant’s capacity to know he ought not do the acts the subject of the alleged offences on 17 April 2014. [62] The capacity to know that a person ought not do the act focuses on an accused person’s knowledge of the nature and quality of the act and of its wrongness. The test in respect of such a capacity was enunciated in Stapleton v The Queen.3 The Court of Appeal explained the relevant test in SCN v Director of Public Prosecutions (Qld):4 “[T]he question in determining whether the [accused person] was deprived of the capacity to know [the person] ought not do the charged acts was whether, at that time, [the person] had the ability to reason with a moderate degree of composure, according to the standards adopted by reasonable people, as to the wrongness of [the person’s] acts. In answering that question it is relevant, although not decisive, to consider if [the person] understood [the person’s] acts were punishable by law. The two concepts are often intertwined. … [An accused person’s understanding the person’s] charged acts were against the law and would get [the person] into trouble with the police … [was] a highly relevant factor in determining whether [the person] was able to reason with a moderate degree of composure, according to standards adopted by reasonable people, as to the wrongness of her acts.” [63] Whilst Dr Grant opines that intoxication did not contribute, to any extent, to the deprivation of the capacity to know he ought not do the acts in question, the defendant’s own account supports a contrary conclusion. The defendant expressly told Dr Grant that the Duromine he was taking at that time made him feel less drunk than he obviously was that afternoon. He expressly told Dr Grant that at the time he used his vehicle he must 3 (1952) 86 CLR 358 at 367. 4 [2016] QCA 237 at [33]. -- 11 of 14 -- 12 have been affected by alcohol. The defendant recalled police being around with their guns drawn. The defendant told Dr Grant he was convinced if he went out of the unit onto the balcony he would be “shot dead on sight”. He told Dr Grant he did not think he could go out with his hands up because he would be killed by police. [64] That account evidences two matters. First, an understanding that what he was doing was wrong. Second, a level of reasoning as to the consequence of his actions should he engage the police further. Importantly, the defendant told Dr Grant that after he had slept for some hours and the alcohol had worn off, he was “a little bit more clear headed”. He then decided to have a spa, got dressed and surrendered to police with his hands up. [65] Whilst Dr Grant considered having a spa bizarre, in the context of the overall circumstances, the more relevant behaviour is that of deciding he could surrender with his hands up without being “shot dead on sight”. That is consistent with an increased level of reasoning with a moderate degree of composure as to the wrongness of his actions.5 The only explanation for that increased capacity of reasoning is the lessening effects of intoxication from the substantial quantity of spirits consumed by the defendant the previous evening. [66] Dr Grant opined that the defendant’s psychosis and behaviour could not be explained by “just alcohol”. However, that is not the test. The test is whether intoxication to any extent contributed to the deprivation of the capacity to know he ought not do the acts in question. Dr Grant’s opinion to the contrary does not provide any satisfactory explanation for the defendant’s change in reasoning as to why it was appropriate to surrender to police for his actions the previous evening. [67] Whilst I accept the defendant’s hyperparathyroidism would have contributed to a fluctuating state of confusion, that condition is not likely to have significantly changed in that time period. That condition does not explain the defendant’s decision to surrender to police. The difference was the significant reduction in the effects of intoxication. The defendant specifically acknowledged that change himself. Dr Grant’s opinion does not give due regard to that fact. [68] I do not accept Dr Grant’s opinion that the defendant’s admitted state of intoxication at the time of the alleged offences on 17 April 2014 did not contribute, to any extent, to the deprivation of the capacity to know he ought not do the acts in question. Dr Grant’s opinion is not consistent with the evidence of the factual circumstances existing at the time of the alleged offences and the defendant’s subsequent admitted conduct. [69] I reach this conclusion after giving careful consideration to the opinions of Dr Grant, a very experienced psychiatrist. However, this Court has the primary responsibility to decide whether intoxication contributed, to any extent, to the deprivation of the defendant’s capacity to know he ought not do the acts. The Court has to make up its own 5 LAI v Director of Public Prosecutions (Qld) [2016] QCA 287. -- 12 of 14 -- 13 mind on the evidence.6 The evidence of expert witnesses cannot usurp that function.7 A court is not bound to take the opinion of one expert who was called as conclusive, even in the absence of contradictory expert opinion.8 [70] In coming to this conclusion I have also given consideration to Dr Jacobs’ evidence. I found that evidence wholly unsatisfactory. Dr Jacobs initially gave evidence that intoxication contributed to any deprivation at the time of all of the alleged offences but subsequently vacillated in respect of that position. Ultimately, Dr Jacobs’ evidence was that the capacity to know he ought not do the act was not, to any extent, contributed to by the presence of intoxication despite Dr Jacob acknowledging that patients suffering from psychosis, if they take alcohol, are more likely to express the symptoms of that psychosis. I do not accept Dr Jacobs’ opinion in respect of the effects of intoxication on the defendant’s deprivation of the capacity to know he ought not do the acts the subject of 17 April 2014 offences. [71] In coming to this conclusion I have also given careful consideration to the advice of the assisting psychiatrists. Whilst that advice was that I ought to accept Dr Grant’s opinion in respect of the offences of 17 April 2014, acceptance of Dr Grant’s opinion is not in accordance with the factual circumstances. Further, in determining the contribution, if any, made by intoxication to the deprivation of the requisite capacity, this Court is not bound by the views of the assisting psychiatrists. The Court has to make up its own mind on the evidence.9 [72] I decline to follow the advice of the assisting psychiatrists in respect of the contribution of intoxication to the defendant’s deprivation of the capacity to know he ought not do the acts in question in respect of the alleged offences on 17 April 2014. Conclusion [73] Whilst the defendant was suffering a mental illness at the time of each of the alleged offences in February and March 2014, that mental illness was not of sufficient severity to have deprived the defendant of any of the requisite capacities at the time of any of those alleged offences. [74] In respect of the April 2014 alleged offence, the defendant’s mental illness was of a sufficient severity, in combination with the hyperparathyroidism, to have deprived the defendant of the capacity to know he ought not do the acts and of the capacity to control. However, the deprivation of those capacities was contributed to by intoxication at the time of each of the alleged offences in April 2014. 6 LAI v Director of Public Prosecutions (Qld) [2016] QCA 287 at [27]. 7 Ramsay v Watson (1961) 108 CLR 642 at 645; Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 at 729 [59], citing Davie v Lord Provost, Magistrates & Councillors of the City of Edinburgh 1953 SC 34 at 39–40. 8 Davie v The Lord Provost, Magistrates & Councillors of the City of Edinburgh (1953) SC 34 at 39-40; Ramsay v Watson (1961) 108 CLR 642 at 645. 9 LAI v Director of Public Prosecutions (Qld) [2016] QCA 287 at [27]. -- 13 of 14 -- 14 [75] The defendant was not of unsound mind at the time of any of the alleged offences the subject of the reference. I accept the defendant is fit for trial. The proceedings against the defendant should continue according to law. [76] I order: [77] At the time of each of the alleged offences the subject of the reference the defendant was not of unsound mind as defined in the Schedule to the Mental Health Act 2000. [78] In respect of each of the alleged offences the defendant is fit for trial. [79] Each of the alleged offences is to proceed according to law. [80] Copies of the reports and transcript are to be released to the parties for use in the criminal proceedings. -- 14 of 14 --