Brown, Re [2015] QMHC 11

MENTAL HEALTH COURT CITATION: Re Brown [2015] QMHC 11 PARTIES: REFERENCE BY THE DEFENDANT’S LEGAL REPRESENTATIVES IN RESPECT OF JOHN HENRY BROWN FILE NO: No 313 of 2013 DELIVERED ON: 29 October 2015 DELIVERED AT: Mental Health Court at Brisbane HEARING DATE: 10 September 2015 JUDGE: Boddice J ASSISTING PSYCHIATRISTS: Dr Reddan Dr Varghese ORDER: 1. At the time of the alleged offence, the subject of the reference, the defendant was not of unsound mind as defined in the schedule to the Mental Health Act 2000 (Qld). 2. At the time of the alleged offence, the subject of the reference, the defendant was not of diminished responsibility as defined in the schedule to the Mental Health Act 2000 (Qld). 3. The defendant is fit for trial. 4. The proceedings against the defendant for murder are to proceed according to law. 5. Copies of the reports and of the transcript are to be provided to the parties in the criminal proceedings. CATCHWORDS: MENTAL HEALTH – DECLARATION OR FINDING OF MENTAL ILLNESS OR INCAPACITY – where the defendant has a diagnosis of schizophrenia – where the defendant has previously been charged with assault occasioning bodily harm, alleged to have been perpetrated against a female cousin – where the defendant was found of unsound mind in relation to that offence and placed on a forensic order – where, within a week of his release from custody, the defendant is alleged to have murdered another of his female cousins – whether the defendant was of unsound mind or diminished responsibility as at the date of the index offence – whether, if the defendant was not of unsound mind or diminished responsibility as at the date of the index offence, the defendant is currently fit for trial Mental Health Act 2000 (Qld) -- 1 of 21 -- 2 COUNSEL: B J Merrin for the Director of Public Prosecutions (Queensland) J Tate for the Director of Mental Health K Prskalo for the Defendant SOLICITORS: Office of the Director of Public Prosecutions (Queensland) Crown Law for the Director of Mental Health Legal Aid Queensland for the Defendant [1] BODDICE J: By Reference, filed 17 December 2013, the defendant’s legal representatives referred to this Court the mental condition of John Henry Brown at the time of an offence of murder, alleged to have occurred on 4 July 2013. [2] By the conclusion of the hearing, counsel for the defendant accepted there was no evidence to support a finding the defendant was of unsound mind at the time of the offence. Defence counsel also accepted the defendant was fit for trial, although some modifications may need to be made to the trial process. At issue is whether the defendant was of diminished responsibility at the time of the alleged offence. Background Personal history [3] The defendant was born in Cunnamulla on 25 January 1983, the third in a sibship of six children. Both his parents are Aboriginal. The defendant’s grandmother assisted in raising him and his siblings. The defendant’s parents separated when he was aged 13 or 14. The defendant has no contact with either of his parents. [4] Although the defendant attended school until halfway through year 10, he had difficulties in learning to read and write; he is “practically illiterate and innumerate.”1 The defendant also had behavioural issues, including swearing, fighting and truancy, which resulted in his suspension and eventual expulsion. The defendant reported participating in rugby league and boxing while he was at school. [5] Since leaving school the defendant has had sporadic employment as a musterer, cotton- picker and lawn-mower. He has also, on occasions received the Disability Support Pension. The defendant has a history of dysfunctional interpersonal relationships. The defendant has had a serious romantic relationship (his partner subsequently took out a Domestic Violence Order against him) but has no children. As at the date of the index offence, the defendant was living with his great aunt (who he refers to as his aunt) and uncle, their daughter, her partner, and their two children in Toowoomba. [6] The defendant has consumed alcohol since he was a teenager, but denies regular or excessive alcohol consumption. The defendant has been a regular and heavy cigarette smoker since he was aged 14. Since he was a teenager, the defendant has also been a regular, although not necessarily heavy, cannabis smoker. The defendant first injected 1 Exhibit 4: Report of Dr Pamela van de Hoef dated 9 July 2014, pages 7-8. -- 2 of 21 -- 3 methamphetamine when he was aged 18, and used it increasingly heavily and regularly from the age of 24 until his last arrest. [7] When the defendant was aged 22, the defendant started using ice, including by smoking it), and used it regularly for at least two years. The defendant used morphine, including intravenously, whenever he could from the age of 22 to 24. The defendant has also previously injected speed. The defendant denied having ever used ecstasy, cocaine, heroin, or LSD, or sniffing solvents. The defendant has not engaged in any alcohol or drug rehabilitation programs. [8] The defendant contracted Hepatitis C as a teenager. The defendant suspected this may be from his use of contaminated needles in illicit drug consumption. The defendant has been advised that his liver function is abnormal. The defendant reported that both his father and his late paternal uncle had insulin-dependent diabetes mellitus. The defendant also reported he thought his maternal cousin had schizophrenia. Psychiatric history [9] The defendant has an established and uncontested diagnosis of schizophrenia; he was diagnosed when he was aged 15 or 16. The defendant has a history of deliberate physical self-harm. In 1999, the defendant attempted to hang himself. In 2000, he stabbed himself in the chest with a kitchen knife. In 2013, the defendant lacerated his throat. The defendant also has a long history of hospital admissions for mental illness. [10] According to his medical records, the defendant has experienced an array of psychotic phenomena, including auditory, visual and tactile hallucinations, as well as delusional beliefs. The defendant is also thought to have an underlying anti-social personality disorder. The defendant’s symptoms have been complicated by his long-standing abuse of substances including alcohol, cannabis, amphetamines, methamphetamine and opiates. Criminal history [11] The defendant has an extensive Queensland criminal history, both as a child and as an adult, and a limited New South Wales criminal history. Since 12 February 2001, by which date the defendant was an adult, he has been convicted of a range of offences in Queensland, including offences against public order, drug offences, property offences, failure to comply with court orders, offences against police and corrective services officers, and offences which involved the threat or use of violence.2 [12] Relevantly, for present purposes, the defendant was previously charged with an assault occasioning bodily harm while armed, alleged to have occurred on 26 March 2003. That charge involved an unprovoked attack against another of his female cousins.3 Despite being found to have been under the influence of alcohol and cannabis at the time of a previous alleged offence on 26 March 2003, the details of which are set out at paragraph [12], the defendant’s psychiatric condition was such that on 16 November 2004 this Court 2 Exhibit 3: Defendant’s Queensland criminal history, pages 1 – 6. 3 Exhibit 12: Queensland Police Service court brief for charge of assault occasioning bodily harm while armed. -- 3 of 21 -- 4 gave him a defence of unsoundness of mind in relation to that offence and placed him on a forensic order. Index offence [13] The defendant is charged with the murder of his cousin Carolyn Elizabeth Widgell, in Toowoomba on 4 July 2013. That offence allegedly occurred a week after the defendant was released from custody on 27 June 2013. The defendant is alleged to have attended the victim’s residence armed with a knife. The defendant asked the victim to go outside with him, before stabbing her with the knife. Witnesses to the incident affirmed the defendant’s characterisation of his relationship with the victim as amicable; they were not aware of any conflict between them. Although one witness described him as “huffing and puffing”,4 other witnesses said the defendant did not appear to be intoxicated by drugs or alcohol and seemed “normal” at the time of the index offence. Reporting psychiatrists Dr Russ Scott [14] On 5 July 2013, one day after the alleged offence, the defendant was admitted to the High Security Inpatient Services under Dr Scott’s care. The defendant was initially un- cooperative and would not provide a urine sample. A blood sample was collected on 6 July 2013. The results of the analysis of that sample were positive only for benzodiazepines. [15] The defendant’s frustration at the hospital’s “no smoking” policy, his abusive behaviour towards hospital staff, and his sedation, meant that he was placed in seclusion. No formal mental state examination was conducted until 8 July 2013. At that time, Dr Scott was satisfied the defendant was not psychotic and had him released from seclusion. [16] In interviews on 9 and 10 July 2013, the defendant gradually volunteered more information concerning the index offence. The defendant could not account for a period of some hours before the index offence. However, the defendant had a vague memory of being angry with the victim. The defendant could describe the knife with which he had stabbed her. The defendant repeatedly requested to be transferred from the hospital to a correctional centre. [17] Dr Scott opined there was no evidence the defendant was having psychotic symptoms as at his admission. Whilst at the date of the index offence, the defendant did have paranoid schizophrenia, Dr Scott opined the defendant had not had a relapse of his illness or become unwell before the index offence. Dr Scott opined the defendant was not deprived of any of the relevant capacities at the time of the alleged offence. [18] Dr Scott noted the defendant may have voluntarily consumed an intoxicating substance prior to the alleged offence. If the defendant was intoxicated, Dr Scott opined he may have had a substantial impairment of the capacity to know that he ought not do the act. 4 Witness statement of William Tanner. -- 4 of 21 -- 5 However, but for the intoxication, the defendant would not have had such a substantial impairment. Dr Scott considered the defendant fit for trial. [19] In evidence, Dr Scott noted the defendant spent only the initial two days in seclusion, during which period he was sedated and not very co-operative. The defendant was placed in seclusion because of his extensive prior history of violence, and staff considered it an appropriate step to ensure the safety of others. Once released from seclusion, the defendant was on an open ward subject to observations every 15 minutes. During this period the defendant was closely observed, and there was no evidence of active psychosis. The defendant was also observed to interact appropriately with co-patients, and received considerable support from an indigenous support worker. [20] Dr Scott opined that if the defendant was suffering a substantial impairment of any of the requisite capacities at the time of the alleged offence, that substantial impairment was as a consequence of a combination of his mental condition and intoxicating substances. Dr Scott noted there was nearly a three hour period that was unaccounted for between when the defendant left his residence with the knife and when he arrived at his cousin’s residence. The defendant had given conflicting accounts on his use of drugs that day, but at least one of those accounts included the suggestion he had used “ice” or other substances. Amphetamines are not easily detected in blood assays and the results of the tests undertaken in the following days were inconclusive. It is possible the defendant had used amphetamines, but they were not able to be detected in the tests on the following day. [21] Dr Scott agreed the defendant, when assessed two days before the alleged offence by a psychiatrist, was noted to be “dysthymic”. “Dysthymic” conveyed the defendant was of chronically low mood and unhappy about a range of things. Dr Scott considered there may have been a number of reasons why the defendant was dysthymic. The defendant had recently served a period in prison, his partner was currently in custody and pregnant with another man’s child, he had financial issues and there was friction in family relationships. The defendant had also had an unsatisfactory result in a recent Mental Health Review Tribunal hearing, which would have distressed him greatly as it resulted in the defendant having to move away from his family and country, which has a real meaning to indigenous people. Dr Velimir Kovacevic [22] Dr Kovacevic interviewed the defendant on 6 December 2013 at the Arthur Gorrie Correctional Centre for about two hours. Dr Kovacevic reported the defendant walked into the interview room “reasonably relaxed”,5 although that may have been because he was unaware he was about to undergo a psychiatric examination. Although the defendant agreed to be examined, Dr Kovacevic noted it was challenging to obtain information from him. The defendant was a “vague” and “reluctant” historian.6 Dr Kovacevic also observed there were many discrepancies in the defendant’s account of the alleged offence.7 In the second hour of the interview, the defendant repeatedly asked to be 5 Exhibit 1: Report of Dr Velimir Kovacevic dated 11 December 2013, page 3. 6 Exhibit 1, Report of Dr Velimir Kovacevic dated 11 December 2013, page 3. 7 Exhibit 1, Report of Dr Velimir Kovacevic dated 11 December 2013, page 8. -- 5 of 21 -- 6 allowed to go back to his unit. The defendant only agreed to continue after Dr Kovacevic emphasised the importance of the interview to him. [23] In order to elicit information from the defendant about the index offence, Dr Kovacevic adopted an unstructured interviewing approach, allowing him to commence by talking about what he thought was most relevant. The defendant began by saying that as at the date of index offences, he was “stressed”, “lost” and “in [his] own world”.8 The defendant stated that although he felt well when he was released from prison custody on 27 June 2013, in subsequent days he kept thinking “silly things”,9 and was unsure whether he was hearing voices or his own thoughts. The defendant chose not to tell Toowoomba Mental Health about these thoughts as he “was confused”, they were “stressing [him] out”, “they were always on [his] back” and he “didn’t want them to lock [him] away.”10 [24] Dr Kovacevic insisted the defendant elaborate on what he meant by “silly thoughts”. Dr Kovacevic characterised his response as an “interesting response”:11 “I thought I was chosen. Sometimes I thought I was God. I had this vision about the time before life began. It says in the Book of Bible, before light it was dark. I had a vision we were all in the dark. And then a voice said, ‘may there be light.’ When the light flashed, it was a magic [sic]. Somebody must have stolen that magic … I also had a vision of my uncle standing there asking me questions. I don’t remember what.”12 [25] The defendant denied to Dr Kovacevic that he had consumed any alcohol on the day of the index offence. The defendant admitted to using morphine on two days prior to the index offence. However, he could not recall whether one of those days was the day of the index offence. The defendant recalled he may have smoked some cannabis, but denied taking any pills or amphetamines. [26] The defendant denied he was angry at the victim, or that she had done anything to provoke him. The defendant knew the victim well and considered her a “nice lady”.13 However, the defendant repeatedly emphasised to Dr Kovacevic that he was staying at his great aunt’s house with his cousin and her partner, and at some point, they had refused to give him a cigarette when he asked for one. The defendant was offended by this refusal, especially as he “always [gave] cigarettes to others when they ask [him].”14 [27] The defendant gave Dr Kovacevic a vague account of the index offence. The defendant could not account for his activities for several hours prior to the index offence. At some point, which the defendant thought was shortly before the index offence, he picked up a knife at his great aunt’s house. The defendant took the knife because he was having “silly thoughts” (thoughts about killing someone).15 The victim was sitting at the back of that 8 Exhibit 1, Report of Dr Velimir Kovacevic dated 11 December 2013, page 4. 9 Exhibit 1, Report of Dr Velimir Kovacevic dated 11 December 2013, page 4. 10 Exhibit 1, Report of Dr Velimir Kovacevic dated 11 December 2013, page 6. 11 Exhibit 1, Report of Dr Velimir Kovacevic dated 11 December 2013, page 5. 12 Exhibit 1, Report of Dr Velimir Kovacevic dated 11 December 2013, page 5. 13 Exhibit 1, Report of Dr Velimir Kovacevic dated 11 December 2013, page 5. 14 Exhibit 1, Report of Dr Velimir Kovacevic dated 11 December 2013, page 4. 15 Exhibit 1, Report of Dr Velimir Kovacevic dated 11 December 2013, page 5. -- 6 of 21 -- 7 house, along with two other people. The defendant reiterated that he asked them for a cigarette and was rebuffed. The defendant asked the victim to come outside and speak to him. The defendant could not recall whether the victim said anything before he stabbed her. [28] When pressed about when he decided to stab the victim, the defendant gave contrasting versions. He said both that he made the decision as he was walking towards the house (although he did not know she was there at the time) and when he exited the house with the defendant. The defendant gave little information about the alleged stabbing itself. After the index offence, the defendant ran to a nearby park, and sat in the corner of the park wondering “when will my life be free?”16 The defendant did not know why he had run away; he wished he had held the victim in his hands and saved her. [29] In an apparent reference to the index offence, the defendant said his thoughts “were dragging him away to do it … whether in the street or somewhere else. [He] thought it was [the] right thing to do. [He] was overwhelmed and something forced [him]. [He] was thinking there [was] another world out there for [him] … [He] thought [he] was cursed.”17 When Dr Kovacevic asked the defendant further questions about his thinking at the time of the index offence, the defendant reported he did not contemplate whether his actions were wrong, adding he felt “lost and confused”, “forced” and “cursed”.18 [30] Later in the interview, when Dr Kovacevic asked the defendant about why he might have had homicidal thoughts, the defendant gave multiple responses, centring on the themes of spirits and magic. For instance, the defendant said: “I felt I was carrying all of them on my back and everything was hitting me at once. I felt my spirit was controlled and I couldn’t take it anymore. I was Devil or God [sic]. I had dreams about getting off Public Trust [the Public Trustee was managing his finances] and start saving money [sic]. I also had dreams about coming off Forensic Order [sic]. This was all bearing heavily on me. My spirit was getting heavy and I had to let some weight off.”19 “I was confused in this world. I was thinking about God and Satan … about who was controlling and knowing magic. I think this is what made me do murder. I was thinking back where life began and only the naked eye could tell … it is about whether you are smart [sic] to figure it out.”20 [31] In his interview with Dr Kovacevic, the defendant reported having unpredictable sleep patterns and occasional nightmares. Although the defendant reported having generally low mood, he denied current active suicidal ideas. The defendant denied having active auditory hallucinations. The defendant was “less confused”21 than he had been at the date of the index offence. However, similar “thoughts”22 still crossed his mind on occasions. 16 Exhibit 1, Report of Dr Velimir Kovacevic dated 11 December 2013, page 6. 17 Exhibit 1, Report of Dr Velimir Kovacevic dated 11 December 2013, page 4. 18 Exhibit 1, Report of Dr Velimir Kovacevic dated 11 December 2013, page 4. 19 Exhibit 1, Report of Dr Velimir Kovacevic dated 11 December 2013, page 6. 20 Exhibit 1, Report of Dr Velimir Kovacevic dated 11 December 2013, page 6. 21 Exhibit 1, Report of Dr Velimir Kovacevic dated 11 December 2013, page 4. 22 Exhibit 1, Report of Dr Velimir Kovacevic dated 11 December 2013, page 4. -- 7 of 21 -- 8 [32] Dr Kovacevic opined the defendant had a documented diagnosis of schizophrenia and did suffer from a “mental disease” as defined in the Mental Health Act 2000 (Qld). In Dr Kovacevic’s opinion, the defendant’s account was strongly suggestive that he was experiencing active symptoms of schizophrenia at the time of the index offence. That conclusion was supported by the absence of any rational alternative motive for the index offence. According to Dr Kovacevic, “what the defendant describes is the influence of forces beyond his control to the point that he lost [the] ability to contemplate the wrongfulness of his actions.”23 [33] For those reasons, Dr Kovacevic opined that on the evidence available to him, the defendant may have been deprived of the capacity to appreciate the wrongfulness of his behaviour and the capacity to control his conduct at the time of the alleged offence. Dr Kovacevic’s preliminary view, subject to any toxicology results, was that the defendant’s intoxication did not have such an effect on his mental state that it should deprive him of the defence of unsoundness of mind. Dr Kovacevic noted there was no substantial dispute of facts which would preclude this Court from making a decision as to the defendant’s criminal responsibility. [34] Dr Kovacevic re-examined the defendant on 6 February 2015 for a period of approximately 50 minutes (the interview was terminated at the defendant’s request). The defendant could not recall Dr Kovacevic from the previous examination, but did recall that two other independent psychiatrists had seen him in the interim. The defendant’s demeanour was subdued, and his voice was restricted in range and reactivity. The defendant had lost contact with his family, and believed his entire family had turned against him. The defendant denied any auditory hallucinations or unusual thoughts, but said he slept with the television turned on because he felt frightened. [35] Dr Kovacevic was able to elicit further, and slightly inconsistent, information from the defendant in his subsequent interview. The defendant admitted that in the period between his release from custody and the index offence, he “sat around smoking cigarettes and doing drugs.”24 When Dr Kovacevic asked about the specific details of that substance use, the defendant said he smoked cannabis, “but not every day”; he injected ice “a few times”; and he crushed and injected Oxycontin “once or twice” (including possibly on the day of the alleged offence).25 The defendant made further, and similar, references to religion, spirits and black magic. [36] Dr Kovacevic’s updated report sets out a number of “comments”, in addition to the doctor’s opinions. Of particular relevance is Dr Kovacevic’s observation that the defendant has consistently declined to fully cooperate with psychiatric examinations. Accordingly, it has been difficult for psychiatrists to assess the defendant’s mental state at the date of the offence. Dr Kovacevic also opined that the defendant’s account of his substance use was “unreliable”,26 but it was likely the defendant had taken some illicit substances following his release from custody. Those substances included morphine and cannabis (rather than amphetamines). 23 Exhibit 1, Report of Dr Velimir Kovacevic dated 11 December 2013, page 8. 24 Exhibit 14: Report of Dr Velimir Kovacevic dated 9 February 2015, page 2. 25 Exhibit 14: Report of Dr Velimir Kovacevic dated 9 February 2015, page 2. 26 Exhibit 14: Report of Dr Velimir Kovacevic dated 9 February 2015, page 5. -- 8 of 21 -- 9 [37] In his subsequent report, Dr Kovacevic opined it was not possible to conclude the defendant’s schizophrenia completely deprived him of any of the relevant capacities. Accordingly, Dr Kovacevic did not support the defence of unsoundness of mind. However, Dr Kovacevic opined the defendant’s schizophrenia at the time of the alleged offence so substantially impaired his capacity to understand the wrongfulness of his actions and control his conduct that he should be entitled to a defence of diminished responsibility. Intoxication “did not play a significant part” in the index offence, and should not prevent the defendant from having a defence of diminished responsibility. [38] In evidence, Dr Kovacevic said he reached his opinion that the defendant was suffering diminished responsibility having regard to the defendant’s account of the index offence, the transcript of the recording of the police interview, his behaviour on admission to High Security, his past history of schizophrenia and the striking similarity between this incident and the 2003 incident for which the defendant was found of unsound mind. Dr Kovacevic formed the view the defendant was suffering from some disturbance of thinking and perception at the time of the alleged offence. The defendant’s statement to police sounded disorganised and disordered. [39] The striking similarities between the previous offence and the alleged offence were that both involved going to the house of a young female cousin, both happened after a conversation outside the house, on both occasions there was no conflict between the defendant and the female cousin, and on both occasions there was no known reason for the violent attack. Dr Kovacevic agreed there were a number of differences between the two incidents. In 2003, the defendant had inexplicably stripped naked prior to picking up the fence paling and attacking his cousin. That was bizarre behaviour. There was nothing strikingly bizarre in the alleged offence. Further, in 2003 the defendant was observed to be psychotic. No such observations were made in respect of the alleged offence, although Dr Kovacevic noted the defendant reported psychotic symptoms. Those reports were not supported by any assessment of the defendant before or immediately after the alleged offence. A further difference was that in 2003 the defendant reported hearing a voice telling him to attack his cousin. [40] Dr Kovacevic agreed that in the days leading up to the alleged offence the defendant was being reviewed quite frequently by allied mental health workers trained to detect symptoms, and none of these workers reported any decompensation or exacerbation of his illness over that time. The defendant was also receiving his medication regularly. However, Dr Kovacevic considered it was possible the defendant was covering up his symptoms and not engaging with those workers such as to allow a detection of his deteriorating behaviour. Dr Kovacevic also considered it significant the defendant was reported as sleeping all the time when he was in seclusion after the alleged offence. It was unlikely a proper assessment was undertaken at that time. [41] Dr Kovacevic accepted the defendant, in his interview, had focused on several occasions on the fact he was feeling offended that his cousin and her partner had refused to give him a cigarette. Dr Kovacevic accepted that the defendant, feeling upset or resentful because he had been refused a cigarette, had armed himself with a knife before travelling to the cousin’s home. However, Dr Kovacevic said the defendant was unable to provide any rational, consistent explanation as to why he went to the house, as to why he asked his cousin to come outside with him, and as to why he stabbed his cousin. Dr Kovacevic -- 9 of 21 -- 10 acknowledged that in the defendant’s subsequent dealings with police and at High Security Inpatient Services the defendant had made repeated demands to be allowed to smoke and had reacted badly when being refused that request, including expressing resentment towards police. [42] Dr Kovacevic opined that aspects of the defendant’s interview with police exhibited thought disorder. The defendant was not following any particular train of thought or answering questions specifically. The fact the defendant was able to be focused in terms of names of people and their relationship to him was not inconsistent with this, as it depended on the “degree of thought disorder”.27 However, it would be unusual for thought disorder to come and go within a single conversation. However, Dr Kovacevic opined that the interview as a whole suggested the defendant was having delusional thinking, consistent with psychotic processes. Dr Kovacevic accepted the defendant’s references to spirits could be the defendant reflecting on the Dreamtime and the fact he had done something very bad. [43] Dr Kovacevic accepted that in the days prior to the alleged offence the defendant had been assessed by a psychiatrist who reported there were no psychotic symptoms. There was also no evidence of formal thought disorder in the notes of that detailed mental state examination. Dr Kovacevic also accepted that on the day of the alleged offence, the defendant was seen by an indigenous mental health worker and relatives, who did not detect any particular deterioration. Dr Pamela Van de Hoef [44] Dr Van de Hoef interviewed the defendant on 2 July 2014 at the Arthur Gorrie Correctional Centre for about three hours. The defendant reported his mood was “good”, unless he thought about the index offence or his family, in which case he felt “sad” or “depressed”.28 For Dr Van de Hoef, the “striking feature of the interview was the number of times he replied ‘I don’t remember’ or ‘I don’t know’, and how inarticulate he was. There was, for instance, either poverty of content, poverty of thought, or significant vagueness.29 [45] When Dr Van de Hoef interviewed him, the defendant could not recall much about the index offence. The defendant reported he had been out on bail “for a week or two”, was living at his great aunt’s house and was receiving depot antipsychotic medication. The defendant might have been drinking alcohol. The defendant thought he had a shot of speed, “once or maybe twice” in a local park near his great aunt’s house, which may have been on the day he was arrested.30 The defendant also “could have”31 taken cannabis, intravenous morphine, or all three on that day. The defendant had visited a house in which the victim and two of his male cousins were living. The defendant had known the victim his entire life. They had always gotten on well; she had always been kind to him. 27 T.1-28/38. 28 Exhibit 4: Report of Dr Pamela Van de Hoef dated 9 July 2014, page 8. 29 Exhibit 4: Report of Dr Pamela Van de Hoef dated 9 July 2014, page 8. 30 Exhibit 4: Report of Dr Pamela Van de Hoef dated 9 July 2014, page 2. 31 Exhibit 4: Report of Dr Pamela Van de Hoef dated 9 July 2014, page 2. -- 10 of 21 -- 11 [46] On the evening of the index offence, the defendant recalled taking a large kitchen knife from the drawer at his great aunt’s house. The defendant could not say why he had done this. The defendant put the knife down his jumper and walked to the victim’s house. The defendant recalled speaking to the victim, and then stabbing her with the knife, once, in the chest. The defendant said he had done “something silly because [he] was confused”, and “it was like [he] was in another world.”32 It was like the defendant “had to do it, had to kill someone.”33 [47] When Dr Van de Hoef specifically asked the defendant whether he had heard any voices or commands, his answers were inconsistent. Initially, the defendant denied hearing any voices or commands; subsequently, said he did not know; later, said “maybe”;34 and still later, said he could have. After the index offences, the defendant said he ran away to a nearby park, because he was “scared of dying”.35 Police apprehended the defendant in that park. The defendant made admissions to police, both then and subsequently, to the stabbing. [48] On the basis that the defendant had a chronically alcoholic mother and was intellectually handicapped, Dr Van de Hoef opined that the defendant may have foetal alcohol syndrome. However, Dr Van de Hoef conceded that the stigmata of that syndrome are difficult to detect in indigenous people. On the material, Dr Van de Hoef also considered that the defendant may have had conduct disorder as a child, and displayed anti-social personality traits as an adult. [49] Dr Van de Hoef opined the defendant suffered from chronic schizophrenia, which had its onset in 1999 or 2000. The defendant’s mental illness has been complicated and exacerbated by his chronic abuse of, and potentially his dependence on, alcohol, cannabis, opiates and methamphetamine. It was “very likely”36 the defendant’s psychotic symptoms appeared, or were exacerbated, during periods in which he was intoxicated, especially with cannabis or amphetamines. However, the defendant’s mental state had been stable for at least one month prior to his receiving bail in late June 2013. Apart from the defendant being more irritable and dishevelled on 2 July 2013, Dr Van de Hoef considered him to have been fairly stable for most of the time since his bail. [50] Based on the defendant’s account, and the fact that the defendant was dishevelled on 2 July 2013, Dr Van de Hoef considered it likely he had taken illicit drugs (black market opiates and methamphetamine) close to the time of the index offence, including in the hours prior to the alleged commission of the offence. Although Dr Van de Hoef accepted the defendant may have been having paranoid (persecutory) delusions which caused him to pick up and carry the knife to the crime scene, there was “not much objective evidence of that”.37 Dr Van de Hoef further opined it was also possible the defendant did have a dispute with the victim, and that in his intoxicated state he was even more impulsive and irritable than he would usually be. 32 Exhibit 4: Report of Dr Pamela Van de Hoef dated 9 July 2014, page 2. 33 Exhibit 4: Report of Dr Pamela Van de Hoef dated 9 July 2014, page 2. 34 Exhibit 4: Report of Dr Pamela Van de Hoef dated 9 July 2014, page 3. 35 Exhibit 4: Report of Dr Pamela Van de Hoef dated 9 July 2014, page 3. 36 Exhibit 4: Report of Dr Pamela Van de Hoef dated 9 July 2014, page 9. 37 Exhibit 4: Report of Dr Pamela Van de Hoef dated 9 July 2014, page 9. -- 11 of 21 -- 12 [51] Ultimately, Dr Van de Hoef opined that the defendant’s mental illness had impaired his capacity to know he ought not do the act, and possibly his capacity to control his actions, but she was not convinced he was completely deprived of either those capacities. Accordingly, Dr Van de Hoef could not support a finding of unsoundness of mind in relation to the index offence. Similarly, Dr Van de Hoef was not convinced either of these capacities were substantially impaired by the defendant’s mental illness at the time of the alleged offence. In Dr Van de Hoef’s opinion, the defendant’s “lifelong impulsivity, low intellect and probable acute intoxication with one or more substances [were] also likely contributing factors as to the commission of the offence.”38 Consequently, Dr Van de Hoef did not support a finding of diminished responsibility in relation to the index offence. [52] At the time of interview, the defendant denied most psychotic symptoms, such as delusions of reference or passivity phenomena, and denied having any thoughts of harming others or committing suicide. The defendant reported he had heard voices, for example, hearing instructions to “kill this fella” or “spit on this fella” as he walked down the street, and had possible thought disorganisation, feeling like he was “lost in the world, like [he] was in another world”. 39 [53] Dr Van de Hoef was satisfied the defendant understood the nature of the charges against him; understood, albeit in a basic way, the nature and function of court proceedings and could challenge a juror; understood the evidence; understood what defence to offer (he said he would plead guilty to manslaughter but not guilty to murder); and could provide his account of the facts to counsel and the court, and was able to withstand the rigours of a trial without detriment to his health. Accordingly, Dr Van de Hoef opined the defendant was fit for trial. Dr Van de Hoef recommended the defendant have any written material communicated to him orally at trial, as he is illiterate. [54] Dr Van de Hoef produced an addendum report dated 8 February 2015, after listening to two electronically recorded interviews between officers of the Toowoomba Criminal Investigation Branch with the defendant on 4 July 2013. Dr Van de Hoef opined the defendant did not sound agitated, nor were there any audible signs of psychosis or significant behavioural disturbance. Dr Van de Hoef maintained the opinions in her initial report. [55] In evidence, Dr Van de Hoef opined that the defendant was intoxicated with opiates at the time of the alleged offence but there was no evidence of intoxication with the usual drugs associated with an exacerbation of a psychotic illness. Even if the effects of intoxication were removed, there was no evidence the defendant was substantially impaired in respect of any of one of his capacities. There was simply no evidence of his chronic schizophrenic illness being very active at that time.40 [56] Dr Van de Hoef noted there were other contributing factors such as the defendant’s low intellect, which would mean he would have difficulty processing events going on around him, and his impulsivity and his borderline anti-social personality traits, which meant that 38 Exhibit 4: Report of Dr Pamela Van de Hoef dated 9 July 2014, page 10. 39 Exhibit 4: Report of Dr Pamela Van de Hoef dated 9 July 2014, page 8. 40 T.1-63/20. -- 12 of 21 -- 13 he was prone to quick rage, poor frustration intolerance and poor impulse control. There was also the possibility of words or some kind of altercation being a contributing factor. Dr Van de Hoef opined that she had considered all of these matters in combination with his schizophrenic illness, but even allowing for those matters she could find no evidence of a substantial impairment of any of the requisite capacities. [57] Dr Van de Hoef agreed that the contents of the police interview evidenced some thought disordered delusional material but considered it read worse than it sounded in the interview itself. Further, there could be other explanations for the content of that interview. Those explanations included that a mentally impaired man was in an awful situation under pressure answering questions he did not want to answer. There may also have been cultural facets to the defendant’s answers. Dr Van de Hoef accepted there were some aspects of his answers that were “just odd”, which would be consistent with low grade schizophrenic symptomatology.41 . However, the defendant’s responses were not odd throughout the whole of the interview. The defendant’s responses included business- like matter-of-fact responses and accurate recall of detail. Even if there were low grade symptoms of schizophrenia they, in combination with the other factors, were insufficient to substantially impair any of the requisite capacities. Dr Donald Grant [58] Dr Grant interviewed the defendant on 19 June 2014 at the Arthur Gorrie Correctional Centre for about one and a half hours. Dr Grant interviewed the defendant a second time on 21 August 2014 for about 35 minutes. The second interview was terminated at the defendant’s request. The defendant’s account of the days preceding the index offence provided to Dr Grant was generally consistent with that given to Drs Kovacevic and Van de Hoef. The defendant said he had been using an array of illicit substances. When Dr Grant pressed him about which substances he had used, the defendant said he had used morphine intravenously, at least once a day; he had smoked ice, but he was unsure how often; and he had used marijuana, but was unsure about how much he had consumed. Dr Grant asked the defendant why he had used those substances. He replied that morphine helped him think “normal [sic]”42 and ice “gets [him] by, helps [him] cope.”43 The defendant said he did not want to be released on bail; he had wanted to stay in prison, and was not ready to be released. [59] In his interview with Dr Grant, the defendant’s recollection of the index offence was again limited. The defendant recalled going to the house, but could not recall why he stabbed the victim. The defendant made similar references to spirits, but also ruminated on the effect of drugs on his mental state, saying: “my mind got controlled. I don’t know if it got controlled or I just lost the plot. Maybe it was because of drugs or medication. I don’t know.”44 The defendant did not want to talk about the index offence because it would make him look silly in Court, and it was difficult for him to speak about. The defendant added: “the old fella is listening – the clever man, he knows. I don’t need to speak of it again.” When Dr Grant asked the defendant who the “clever man” was, the defendant 41 T.1-65/15. 42 Exhibit 6: Report of Dr Donald Grant dated 31 October 2014, page 6. 43 Exhibit 6: Report of Dr Donald Grant dated 31 October 2014, page 6. 44 Exhibit 6: Report of Dr Donald Grant dated 31 October 2014, page 6. -- 13 of 21 -- 14 said it was the “king of the tribe, a spirit man.”45 The defendant then gave what Dr Grant characterised as a “confusing”46 monologue about three people, who were the only real people in the world, meeting in a room. [60] The defendant expressed some regret to Dr Grant for the offence, saying “she’s my own cousin, my mother’s niece, now I’m shocked as [sic], looking back on what’s happened.”47 Dr Grant opined that “it is difficult to interpret this history, given that the patient is an indigenous man with schizophrenia and a history of substance abuse. Ideas about black magic and spirits might well be cultural phenomena, and other phenomena described by [the defendant] might relate to drug intoxication or schizophrenia.”48 [61] The defendant gave Dr Grant an account of his past and present psychiatric condition which was consistent with that given to Dr Kovacevic. Specifically, the defendant reported that when he was unwell, he heard voices which told him to do “silly things”,49 but he was not experiencing any current active symptoms of schizophrenia. The defendant said he was receiving Clopixol (an injectable antipsychotic),50 at an unknown dose each month, and Avanza (an oral antidepressant),51 at an unknown dose each night. The defendant also thought he may be on Olanzapine (an oral antipsychotic). The defendant thought his medication was working and said he was not experiencing any side- effects. [62] In considering the defendant’s state of mind at the time of the index offence, Dr Grant noted contemporaneous medical records indicated that, prior to the index offence, the defendant was receiving treatment for his schizophrenia by way of depot antipsychotic medication and was also receiving regular follow-up by mental health and forensic services. None of those contemporaneous assessments showed evidence of significant relapse of the defendant’s schizophrenic symptoms. Further, the defendant has not subsequently described positive psychotic symptomatology, such as paranoid beliefs or command hallucinations, involving the victim. [63] In Dr Grant’s opinion, the defendant had described “some vaguely psychotic disorganised thinking about his state at the time”, but it was not clear what connection that thinking might have with the index offence. Dr Grant opined there was insufficient evidence to indicate that the defendant’s schizophrenia was influencing his behaviour “to any great extent” at the date of the index offence. Accordingly, Dr Grant did not consider the defendant was of unsound mind as at the date of the index offence. [64] Dr Grant noted the defendant has been “vague and less than forthcoming”52 in relation to his substance abuse prior to the commission of the index offence. Whilst there is no record of a urine (or blood) drug screen being performed on the day of the index offence, given the information the defendant has provided about his substance abuse surrounding 45 Exhibit 6: Report of Dr Donald Grant dated 31 October 2014, page 6. 46 Exhibit 6: Report of Dr Donald Grant dated 31 October 2014, page 7. 47 Exhibit 6: Report of Dr Donald Grant dated 31 October 2014, page 6. 48 Exhibit 6: Report of Dr Donald Grant dated 31 October 2014, page 12. 49 Exhibit 6: Report of Dr Donald Grant dated 31 October 2014, page 5. 50 This is consistent with the information provided by Dr Barnes; Zuclopenthixol is the generic form of Clopixol. 51 This is consistent with the information provided by Dr Barnes; Mirtazapine is the generic form of Avanza. 52 Exhibit 6: Report of Dr Donald Grant dated 31 October 2014, page 14. -- 14 of 21 -- 15 the index offence, and reports of his appearance on that day, Dr Grant opined it was likely he was intoxicated with an array of substances at the time of the offence (including morphine and amphetamines). Although Dr Grant considered it impossible to resolve the issue of intoxication precisely, it was likely the defendant’s mental state at the time of the offence was affected, to some extent, by intoxication. [65] For similar reasons, Dr Grant did not support a defence of diminished responsibility in relation to the index offence. Although the defendant did have schizophrenia at the time of the offence, his illness was quite well controlled, and there was insufficient evidence to conclude his illness substantially impaired any of the relevant capacities. Dr Grant considered the defendant was fit for trial. [66] Dr Grant produced an addendum report dated 4 February 2015, after listening to two electronically recorded interviews between officers of the Toowoomba Criminal Investigation Branch with the defendant on 4 July 2013. Dr Grant opined that the additional material contained no evidence of mental illness or obvious intoxication as at the date of the offence. Dr Grant maintained the opinions in his initial report. [67] In evidence, Dr Grant considered it significant that the defendant had been under observation by qualified mental health workers in the week before the alleged offence and in the weeks after the alleged offence. During the assessments in the week prior to the alleged offence, the defendant had been seen regularly and closely followed up. There was no evidence of any active psychotic symptoms. The defendant was, throughout this time, on his full dose of depot medication. The defendant was also seen afterwards in the watchhouse, in prison and whilst an inpatient in High Secure. In none of those assessments was there any indication the defendant had actively relapsed into schizophrenic symptoms. [68] Dr Grant said the defendant had spoken about a range of topics when interviewed which could be consistent with mild thought disorder. It was possible this was a psychotic symptom, although some of the things discussed possibly had a cultural basis. Dr Grant did not, however, obtain anything else in the history suggestive of psychotic symptoms. There was no paranoid delusions on the material and no claimed beliefs about the victim. The defendant did not suggest there were any command hallucinations or any obvious psychotic phenomena. Dr Grant did not consider the motivations for the alleged offence related to schizophrenia. [69] Dr Grant opined that whilst the defendant might have been experiencing disordered thinking at the time of the alleged offence, something more florid and more specific would be expected if that condition had substantially impaired any of the requisite capacities. Further, if the actions were due to psychosis, one would expect obvious signs of the person being very unwell and reports of paranoia or command hallucinations. Dr Grant accepted the defendant had evidenced some level of thought disorder in his interview with police, but considered it was mild,not prominent at the time of the alleged offence. If the defendant had been significantly psychiatrically unwell at the time of the alleged offence, Dr Grant would have expected that to have been evident in the assessments undertaken by mental health care workers in the days leading up to the alleged offence and in the days subsequent to the alleged offence. -- 15 of 21 -- 16 [70] Dr Grant opined there was evidence the defendant was using intoxicating substances at around the time of the alleged offence. The defendant had Oxycontin in his system, which is a morphine-like substance. The defendant was therefore on a narcotic at some level, although you would not expect narcotics to produce thought disorder or to particularly exacerbate schizophrenia. Dr Grant noted the defendant had, in addition to chronic schizophrenia, a quite severe personality disorder and had previously had serious problems with his temper, including having attacked other people and having trouble controlling anger. As the defendant had been assessed by competent experienced professionals in the days leading up to the offence, some of whom had known him for many years and were aware of his mental health problems, and these mental health professionals did not pick up that he was suffering any significant symptoms of psychosis at around that time, it is likely these other factors were probably more relevant, particularly drug abuse and anger. Submissions [71] The defendant’s counsel submitted Dr Kovacevic’s opinion ought to be preferred over the opinions expressed by Dr Scott, Dr Grant and Dr Van de Hoef. The absence of reported psychotic symptoms before and after the alleged offence was explained by the defendant’s non-engagement with mental health workers and the fact that in High Secure the defendant had spent the first few days in seclusion and was largely sleeping during that time. The defendant was also guarded and unwilling to divulge anything. Importantly, Dr Kovacevic considered there was evidence of psychosis present in the interview with police on 5 July 2013. That interview exhibited evidence of clear thought disorder and included statements that the defendant was controlled by forces which Dr Kovacevic considered to be a characteristic symptom in schizophrenia. [72] The Director of Public Prosecutions submitted that the weight of the evidence did not support a finding of diminished responsibility. Neither Drs Scott, Grant or Van de Hoef opined that the defendant was substantially impaired of any of the relevant capacities at the time of the alleged offence. Whilst Dr Kovacevic opined that the defendant was deprived at least of the capacity to know he ought not to do the act in question, the persuasiveness of that opinion was undermined by Dr Kovacevic’s reliance on what he considered to be striking similarities between the alleged offence and the 2003 offence, and the absence of motive. However, there were significant dissimilarities between the alleged offence and the 2003 offence, including observed psychotic symptoms and bizarre behaviour immediately prior to the 2003 offence. Further, there was an explanation for the defendant’s behaviour at the time of the alleged offence; his resentment at being refused a cigarette. The defendant’s actions thereafter were consistent with the defendant being angry and impulsive. [73] The defendant’s actions at the time of the alleged offence were also inconsistent with any substantial impairment of any of the requisite capacities. The defendant armed himself with a knife, arrived at the victim’s home, asked her to come outside, delivered a single stab wound and then left the scene. Upon his arrest he acknowledged some wrongdoing and participated in a lengthy police interview. At that time there were no observed psychotic symptoms. Further, no psychotic symptoms were observed when the defendant had been assessed by mental health professionals who knew him well in the days preceding the alleged offence and in the days following the alleged offence. -- 16 of 21 -- 17 [74] The Director of Mental Health submitted there was no issue as to whether the defendant suffered from an abnormality of mind. The question was whether it had caused a substantial impairment of any of the requisite capacities. In this respect, it was significant to note that the defendant had been admitted for mental health assessment on the day following the alleged offence. The defendant had remained there for 10 days. Throughout that time, there was no evidence of psychotic symptoms. The defendant had also been assessed by mental health professionals in the days preceding the alleged offence. Again, there was no evidence of psychotic symptoms. Assisting psychiatrists [75] Dr Varghese, who had researched the issue of amphetamine usage and blood analysis, advised that all the defendant’s blood test indicated was that he had not recently used amphetamines. Accordingly, the only evidence available to the Court was the defendant’s own account, and the defendant had given multiple conflicting accounts of his substance abuse preceding the index offence. [76] Dr Varghese characterised the issue of whether the defendant was of diminished responsibility in relation to the offence as “complex”.53 In Dr Varghese’s opinion, the first limb of the defence is met, in that the defendant had an abnormality of mind. That abnormality of mind could, Dr Varghese advised, be as a consequence of the defendant’s long-standing schizophrenia (especially given the significant formal thought disorder evident in his interview with police, which Dr Varghese considered an “epiphenomenon indicating that there is a degree of underlying psychosis present at the time”54) or due to personality issues and intellectual functioning. [77] As to the second limb of the defence, Dr Varghese was not convinced the defendant was deprived of either the capacity to know what he was doing or to control his actions. However, Dr Varghese opined that the defendant’s abnormality of mind impaired his capacity to know he ought not do the act. The issue of whether the impairment was substantial was a much more difficult question, and was not of a medical character. On balance, Dr Varghese advised that “when considering the totality of the situation and the varying elements of abnormality in mind, particularly the schizophrenia with residual psychosis, and certainly with profound negative symptoms, the impairment was probably substantial.”55 [78] Dr Reddan observed that all of the reporting psychiatrists accepted the defendant had an abnormality of mind, even if they disagreed somewhat as to its degree, severity and relationship to impairment.56 Dr Reddan opined that schizophrenia in partial remission was an appropriate formulation of the defendant’s abnormality of mind. Dr Reddan concurred, however, with Dr Varghese that there was an abnormality of mind of multi- factorial nature, arising from the defendant’s major mental illness, inherent factors, cultural factors and, potentially, spiritual factors. 53 T2-13, 36. 54 T2-14, 44-5. 55 T2-16, 12-7. 56 T2-17, 35-7. -- 17 of 21 -- 18 [79] Dr Reddan agreed with Dr Varghese that the issue of impairment was essentially a legal issue, not capable of being quantified by any medical diagnostic. Dr Reddan came to the conclusion the defendant’s impairment was more than mild, and may be more than moderate, but did not positively characterise the impairment as “substantial”. Dr Reddan recommended the Court prefer the evidence of Dr Kovacevic. Discussion Diminished responsibility [80] The Criminal Code 1899 (Qld) s 304A(1) states that: “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.” [81] There are essentially three components to the defence: first, that at the time the defendant committed the index offence, he suffered from an abnormality of mind; second, that such an abnormality of mind arose from a condition of arrested or retarded development of mind or from an inherent cause or was induced by disease or injury; and third, that such an abnormality of mind substantially impaired at least one of three capacities: his capacity to understand what he was doing, his capacity to control his actions, or his capacity to know that he ought not to do the act. Only the third of those components is contentious in this case. [82] As counsel for the Director of Public Prosecutions conceded, that issue is not resolved by mathematical comparison; the fact that Doctors Scott, Van de Hoef and Grant concur with each other, and that Dr Kovacevic has a contrary opinion, is not conclusive. However, the only support for a finding of diminished responsibility is from Dr Kovacevic. Each of the other reporting psychiatrists would not support such a finding. [83] I did not find Dr Kovacevic’s opinion persuasive. Dr Kovacevic’s assumption that there is a connection between the defendant’s schizophrenia and his actions is not supported by the collateral evidence. The defendant had received consistent psychiatric observation, assessment, medication and treatment in the period preceding the offence. The defendant’s schizophrenia was, as Dr Scott put it, well-managed, and the many mental health workers who were in close contact with him in the weeks and days preceding the index offence did not report prominent active symptoms of schizophrenia. [84] The witness statements also do not support a conclusion that the defendant was experiencing any psychiatric phenomena at the time of the alleged offence, especially paranoid delusions or command hallucinations. At least one witness describes him as acting normally. The defendant himself does not describe any voices which specifically -- 18 of 21 -- 19 instructed him to assault or murder the victim. Further, in the days following the offence, after the defendant was admitted to High Security Inpatient Services under Dr Scott’s care, neither Dr Scott nor other members of his treating team observed the defendant experiencing psychotic symptoms. I do not accept Dr Kovacevic’s assessment that during this time the defendant was largely sleeping and not properly assessed. I accept Dr Scott’s evidence that the defendant was closely watched over the period, particularly following his placement back into the ward following the period in seclusion. [85] There are two other aspects of Dr Kovacevic’s evidence which I found unpersuasive. The first was his reliance upon what he described as striking similarities between the alleged offence and the 2003 offence. Whilst I accept there were similarities, the more striking aspect was the dissimilarity in the defendant’s reported behaviour at the time of the 2003 offence to that described at the time of the alleged offence. I accept Dr Grant’s assessment that the previous offence was fairly dissimilar. The defendant was very obviously psychotic at the time and was not on treatment for his mental illness. The defendant also was actively hearing command hallucinations and behaving bizarrely.57 [86] The second aspect relates to Dr Kovacevic’s reliance upon there being an absence of motive. That conclusion failed to have regard to the defendant’s repeated reference to the fact that he was feeling offended that his cousin and her partner had refused to give him a cigarette. In the context of the defendant’s history of low intellect, impulsivity and quick rage, this repeated focus was significant and provided a compelling explanation for his actions that day. [87] By contrast, I found Dr Van de Hoef’s evidence highly persuasive. Dr Van de Hoef had given very careful consideration to all of the circumstances, including the relevance of any residual schizophrenia and the defendant’s other conditions such as low intellect and his personality disorder. The care exhibited by Dr Van de Hoef in considering all of the surrounding circumstances was evidence in the following exchange with Dr Varghese: “Dr Varghese: With respect to abnormality of mind what I understand you to be saying is if we leave aside intoxication – we assume that there is no intoxication, the abnormality of mind, which is the schizophrenia – the residual schizophrenia with some, perhaps, subtle thought disorder, that was insufficient to bring about significant impairment?---Yes. But would you say that was also the case in combination with the mental retardation in combination with the personality disorder - would that all taken together still not be substantial?---I think so. I think so. You’re talking about combining those three conditions--- Yes. Three things. Yes?---Together would they have – no, I don’t – I still think that that’s not – wouldn’t have substantially impaired his judgment to know that he ought not do this thing. I mean, I think there was evidence that pretty soon afterwards he knew he shouldn’t have done those – that thing. 57 T.1-61/2. -- 19 of 21 -- 20 … By not enough to impair substantially?---I think – in this set of circumstances I don’t think there is enough evidence at the time that it was a substantial impairment. No.” Dr Van de Hoef maintained that position, even allowing for the existence of low mood at the time of the alleged offence. [88] I do not accept Dr Kovacevic’s opinion. I accept and prefer Dr Van de Hoef’s opinion. It is consistent with a consideration of all the circumstances, including the collateral material. It is also consistent with the opinion of Dr Grant, whose evidence I also accept. [89] In coming to this conclusion I have given careful consideration to the advice of the assisting psychiatrists that I should accept Dr Kovacevic’s opinion. I have also given careful consideration to Dr Varghese’s advice that Dr Van de Hoef and Dr Grant had not given sufficient weight to the formal thought disorder present in the police interview. I do not agree with that assessment. [90] Dr Van de Hoef, in particular, impressed me as having given considerable thought to the effect of that matter, in the context of all of the surrounding factors. I accept and prefer her opinions as to the relevance of these matters. I am satisfied the defendant’s mental state at the time of the alleged offence was not such, even allowing for all of those matters collectively, as to have substantially impaired any of the requisite capacities. I am satisfied the defendant was not suffering from diminished responsibility at the time of the alleged offence. Fitness for trial [91] The Mental Health Act 2000 (Qld) defines “fit for trial” as “fit to plead at the person’s trial and to instruct counsel and to endure the person to trial, with serious adverse consequences to the person’s mental condition unlikely”. In determining whether a person is fit for trial each of the statutory criteria must be addressed.58 [92] Fitness to stand trial requires an understanding of the nature of the charges; an understanding of the nature of the court proceedings; the ability to challenge jurors; the ability to understand the evidence; the ability to decide what defence to offer; and the ability to explain his or her version of the facts to counsel and the court.59 [93] I am satisfied the defendant has the requisite understanding of the nature of the charges and the nature of the court proceedings. I am further satisfied the defendant has the ability to challenge jurors, understand the evidence, decide what defence to offer (even if, on the basis of his previous statements, it seems it is likely he will enter a plea of guilty to the offence), and the ability to explain his version of the facts to counsel and the Court. The 58 R v House (1986) 2 Qd R 415 at 422. 59 R v Presser (1958) 45 VR. -- 20 of 21 -- 21 defendant’s account may be non-chronological and incomplete, but his thought processes are, as Dr Grant characterised them, “fairly well organised.”60 [94] Modifications will undoubtedly need to be made to the trial procedure to account for the defendant’s illiteracy. Further, given his frustration during extended interviews with the reporting psychiatrists, he will require more frequent breaks during proceedings. The defendant is also likely to require assistance from the Prison Mental Health Service during the trial. However, I am satisfied appropriate modifications can be made to the trial process to accommodate these requirements. The defendant will be able to withstand the trial process without detriment to his mental health. Orders [95] I order: 1. At the time of the alleged offence, the subject of the reference, the defendant was not suffering from unsoundness of mind as defined in the schedule to the Mental Health Act 2000 (Qld). 2. At the time of the alleged offence, the subject of the reference, the defendant was not of diminished responsibility as defined in the schedule to the Mental Health Act 2000 (Qld). 3. The defendant is fit for trial. 4. The proceedings against the defendant for murder are to proceed according to law. 5. Copies of the reports and of the transcript are to be provided to the parties in the criminal proceedings. 60 Exhibit 6: Report of Dr Donald Grant dated 31 October 2014, page 11. -- 21 of 21 --