Austin, Re [2013] QMHC 21

MENTAL HEALTH COURT CITATION: Re Austin [2013] QMHC 21 PARTIES: REFERENCE BY DIRECTOR OF MENTAL HEALTH IN RESPECT OF RHYS MICHAEL AUSTIN PROCEEDING NO: 0185/11 DELIVERED ON: 15 May 2013 DELIVERED AT: Brisbane HEARING DATE: 18 April 2012, 24 April 2012, 24-25 July 2012, 31 July 2012, 3 December 2012, 6 February 2013 and 27 March 2013 JUDGE: Ann Lyons J ASSISTING PSYCHIATRISTS: Dr E N McVie Dr F T Varghese FINDINGS AND ORDERS: 1. The defendant was of unsound mind at the time of the commission of the alleged offence of common assault on 21 January 2007. 2. The proceeding against the defendant in relation to the alleged offence of common assault on 21 January 2007 is discontinued and further proceedings must not be taken against the defendant for the acts constituting that offence. 3. There is a reasonable doubt, pursuant to s 268 of the Mental Health Act 2000 (Qld), that the defendant committed the alleged offence of possession of tainted property on 2 April 2010. 4. The defendant is fit for trial in relation to the alleged offence of possession of tainted property on 2 April 2010. 5. The proceeding against the defendant in relation to the count of possession of tainted property on 2 April 2010 is to continue according to law. 6. There is no fact that is substantially material to the opinion of an expert witness as defined in s 269(1) of the Mental Health Act 2000 (Qld) that is so in dispute it would be unsafe to make a decision on unsoundness of mind or diminished responsibility in relation to the count of murder on 30 March 2010. 7. The defendant was of unsound mind at the time of the commission of the alleged offence of murder on 30 March 2010. -- 1 of 47 -- 2 8. The proceeding against the defendant in relation to the alleged offence of murder on 30 March 2010 is discontinued and further proceedings must not be taken against the defendant for the acts constituting that offence. 9. A Forensic Order is required detaining the defendant to The Park High Security Program Authorised Mental Health Service. 10. Limited Community Treatment is not approved. 11. The psychiatric and psychological reports presented during the hearing and the transcript of the hearing be released to the parties and the Attorney-General for use in the Metal Health Review Tribunal proceedings. CATCHWORDS: MENTAL HEALTH – DECLARATION OR FINDING OF MENTAL ILLNESS OR INCAPACITY – where defendant charged with common assault, murder and possession of tainted property – where defendant diagnosed with paranoid schizophrenia – where defendant told numerous conflicting accounts of the events surrounding the alleged murder – whether a dispute of fact substantially material to the opinion of an expert witness as defined in s 269(1) of the Mental Health Act 2000 (Qld) arises – whether defendant was of unsound mind as defined in the Schedule of the Mental Health Act 2000 (Qld) at the time of the alleged offences – whether there was reasonable doubt pursuant to s 268 of the Mental Health Act 2000 (Qld) that the defendant committed the alleged offence of possession of tainted property – whether a Forensic Order should be made – whether Limited Community Treatment should be approved Criminal Code Act 1899 (Qld), ss 26, 27, 405 Mental Health Act 2000 (Qld), ss 238, 268, 269 A-G (Qld) v Bosanquet & Ors [2012] QCA 367, considered R v Presser [1958] ALR 248, considered R v Schafferius [1987] 1 Qd R 381, applied Re W (Unreported, Mental Health Tribunal, Dowsett J, 14 October 1997), considered COUNSEL: J R Hunter SC for the defendant J Tate for the Director of Mental Health D L Meredith for the Director of Public Prosecutions B Campbell for the Director of Public prosecutions on 6 February 2013 and 27 March 2013 SOLICITORS: Legal Aid Queensland for the defendant Crown Law for the Director of Mental Health Director of Public Prosecutions (Qld) -- 2 of 47 -- 3 A LYONS J: The alleged offences [1] Rhys Michael Austin is charged with 3 offences: (i) Common assault on 21 January 2007; (ii) The murder of Bianca Girven on 30 March 2010; and (iii) Possession of tainted property on 2 April 2010. [2] The charge of common assault arises out of circumstances where it is alleged Mr Austin attempted to choke a co-patient at the Mental Health Unit of the Princess Alexandra Hospital (“PAH”) in 2007 during an admission from 4 January 2007 until April 2007. During that time, he shared a bedroom with the victim. The details of the offence came to light when detectives were investigating the murder offence in 2010. The victim indicated that during the night of 21 January 2007, he awoke to realise that his room mate, Mr Austin, had wrapped a wet towel around his neck and was attempting to strangle him. Whilst he was doing this, Mr Austin was yelling out “you were talking about my family, I’m going to kill you”.1 Staff subsequently intervened. [3] The charge of possessing tainted property relates to a phone owned by a taxi driver which was found by police when they conducted a search of Mr Austin’s bedroom during the murder investigation. The taxi driver stated that his phone had been stolen one night in October 2009 when he was transporting a male and female to a house in a quiet back street behind the Mount Gravatt Hotel. [4] The most serious charge Mr Austin faces is the charge of murder of his girlfriend Bianca Girven on 30 March 2010. Ms Girven had been Mr Austin’s girlfriend for a number of years and was 22 years old at the time of her death. This Reference [5] In a Reference filed on 11 July 2011, the Director of Mental Health has referred the question of Mr Austin’s mental condition at the time of the commission of those alleged offences to this Court for determination. The hearing of this Reference commenced in April 2012 and was not concluded for almost a year due to some significant developments which arose during the course of that year. Of particular significance was the fact that there was information from the treating team at The Park Centre for Mental Health team that Mr Austin was actively concealing some of his psychotic symptoms and that he had also revealed previous homicidal ideation. At a later stage there was an indication that Mr Austin was recanting some of the information he had previously provided to some of the reporting psychiatrists. Those factors meant that a number of the reporting psychiatrists needed to be recalled to give further evidence or to provide further reports in relation to their initial diagnosis. [6] The Brief of Evidence in this Reference was also extensive. There have been multiple reports from the reporting psychiatrists and the treating team. In order to prepare those reports it was also necessary for the witnesses to consider large volumes of hospital records and other medical reports in order to give evidence and prepare lengthy reports. I consider that the complexity of the issues in this case 1 Report of Dr Grant, dated 13 November 2011, at p 2. -- 3 of 47 -- 4 required an examination of those reports and the evidence upon which they are based in some detail particularly as the views of some of the reporting psychiatrists changed or were refined over the course of the year. I also consider it important that these reasons fully explore all of the issues which arose for consideration at the time of the hearing of the Reference so that due consideration can be given to those issues in the future. The circumstances surrounding the alleged murder [7] On 30 March 2010 at 11.23 pm, an ambulance was called to Mr Austin’s family home at Mount Gravatt. Ambulance officers found Ms Girven unconscious in the back of a white van which had been driven there by Mr Austin. Ms Girven was taken to the PAH intensive care unit with a neck compression injury. She was placed on life support and died on 31 March 2010. A post mortem showed that she died from hypoxic ischemic encephalopathy due to, or as a consequence of, asphyxia. [8] At the time of Ms Girven’s murder, Mr Austin was under the care of the PAH Mental Health Service and was being seen by psychiatrists and mental health staff at the Macgregor Community Clinic. He was on the anti psychotic Abilify and the antidepressant Zoloft but had a history of non compliance with his medication. The Police Interview on 31 March 2010 [9] Mr Austin took part in an extensive interview with police which commenced in the early hours of the morning of 31 March 2010 and terminated in the evening of that day. He indicated to police that he and Bianca had driven to the lower car park near the Mount Gravatt lookout. They remained in the van for a short time before they moved into the back of the van. He said that after a short period of time the side sliding door of the van was thrown open and someone reached into the vehicle, struck Bianca, grabbed her and dragged her out of the vehicle. Mr Austin then told police that he was hit on the head by another person causing him to fall head first onto the bitumen. He was then told to stay on the ground and not get up. He stated that as he lay on the ground he heard gurgling and choking noises. He also stated that he felt one of the perpetrators reach into his pocket, remove his mobile phone and smash it on the ground. [10] Mr Austin told police that after they left the area, he found Bianca lying unconscious on the ground. He said he attempted CPR with no response. He was then able to search the area, locate his mobile phone and sim card. He then lifted Bianca into the van and drove to his home nearby to get help. The appointment with Dr Dark on 1 April 2010 [11] Subsequent to the extensive police interview on 31 March 2010, Mr Austin was seen at 9 am on 1 April 2010 by his psychiatrist Dr Frances Dark, who had been the principal psychiatrist treating him for his mental illness since 2009. She conducted a mental state examination and tape recorded her interview with him. Two days later, on 3 April 2010, Dr Dark admitted Mr Austin to the PAH due to his increasing paranoia. On admission, his urine drug screen (“UDS”) was positive for opiates but negative for cannabis and amphetamines. Mr Austin stated that he -- 4 of 47 -- 5 had taken some significant quantities of an over-the-counter cough medicine at the time of the killing. [12] The admission notes on 3 April 2010 indicate the following: “Strong persecutory delusions, ideas of reference, getting message from TV, visual hallucinations last night I have seen someone in that house, auditory hallucinations unable to elaborate.” [13] On 29 April 2010 the UDS was positive for cannabis and negative for opiates and amphetamines. Mr Austin remained in the hospital for over two months and was discharged on 7 June 2010. He was treated initially under an Involuntary Treatment Order and subsequently as a voluntary patient. He had further admissions in June and July 2010 when he presented intoxicated with LSD and alcohol. Past forensic history [14] By the time of Ms Girven’s death in March 2010, Mr Austin had an extensive history of mental illness and had been previously charged with a number of criminal offences which had been referred to this Court. He had also had an admission to the PAH in February 2010, a month before Ms Girven was killed. There is a ward round entry which indicates that during that February admission, Mr Austin had felt very paranoid and believed that there were lots of people watching him. [15] The medical reports indicate that Mr Austin’s extensive psychiatric history dates back to 2005 when he was diagnosed with schizophrenia by Dr Todd Wakefield. He had an admission to the Toowong Private Hospital in July 2006 when he was commenced on Olanzapine and Sertraline. He was discharged in September 2006. During that admission he tested positive to amphetamines on at least one occasion and was absent without leave on several occasions. He deliberately self harmed on two occasions by cutting his arm with a razor. He was commenced on the anti psychotic Olanzapine and prescribed the antidepressant Mirtazapine, which was subsequently changed to Sertraline. [16] Following that inpatient stay, he recommenced his drug use and was non compliant with medication. He was re-admitted to Toowong several weeks later but discharged after a brief stay. He was then brought to the PAH emergency department on 28 November 2006 and admitted involuntarily to the secure wing of the Mental Health Unit. He was recommenced on Olanzapine. He was discharged after a two week admission but it was noted that he was still experiencing some psychotic symptoms. [17] In July 2006, Mr Austin had been charged with the offences of entering premises with intent, robbery with actual violence whilst armed, deprivation of liberty and possession of a knife. The offences were committed against a background of substance abuse. It is alleged he entered a Night Owl store wearing a black beanie with fabric across his face, armed with a knife. [18] In November 2007, Dutney J, sitting in this Court, found him to be of unsound mind in relation to those offences. His Honour noted that the offences occurred shortly after a discharge from hospital and were part of bizarre and confused behaviour which he considered to be “odd” because they were attempted in an -- 5 of 47 -- 6 ineffectual manner. Mr Austin was placed on a Forensic Order. He had a subsequent admission to the PAH in late 2007, after which he was case managed in the community. He had multiple medication trials, including Clozapine between 2008 and 2009. He admitted to intermittent alcohol use whilst on the Forensic Order. [19] In August 2009, the Forensic Order was revoked by the Mental Health Review Tribunal (“MHRT”), but Mr Austin continued to be case managed on a voluntary basis by the PAH Mobile Intensive Treatment Team (“MITT”). Dr Dark’s initial assessment [20] Dr Frances Dark is a consultant psychiatrist with the Metro South Health District. Dr Dark gave oral evidence at the hearing on 24 July and 25 July 2012. She also provided an undated update report which was received on 30 August 2012 and a letter dated 9 January 2013. [21] Dr Dark indicated her first contact with Mr Austin was after his admission to the PAH from Toowong Private Hospital. He subsequently came under the MITT program in 2007 and she became involved as his principal psychiatrist in 2009. Dr Dark advised that the MITT team delivers intensive outreach treatment in the community and that Mr Austin was seen very frequently. He was initially seen weekly and received intensive psychological therapy with positive symptom management for his residual symptoms. Dr Dark indicated that she would have seen Mr Austin at least 100 times prior to the commission of the alleged offence. [22] Dr Dark indicated that Mr Austin has a diagnosis of schizophrenia, predominantly paranoid schizophrenia, and that he has had that diagnosis since 2006. She did not consider his personality structure was such that he had a personality disorder and did not consider he had antisocial personality traits or narcissistic personality traits as there was no evidence of a conduct disorder or other disorders in childhood. In her view, he was not a person who tended to provoke aggression and he did not possess a disregard for the rights of others. Neither did she consider that he failed to conform to lawful norms or was deceitful. She did not consider he showed a lack of remorse for negative activities. [23] Dr Dark indicated Mr Austin had some grandiose traits but that there is often an associated grandiosity with paranoia. She stated that Mr Austin feels that he is singled out and a lot of his symptoms have a grandiose flavour. She considers that this grandiosity is not a feature of his personality, but rather consistent with the diagnosis of paranoid schizophrenia. [24] Dr Dark stated that she had seen Mr Austin prior to the alleged offences on 9 February 2010 when there was concern that he was showing early signs of a relapse. Dr Dark indicated she had last seen Mr Austin on 15 February 2010, about six weeks before Ms Girven’s death. Dr Dark indicated that Mr Austin’s mental state would fluctuate between appointments, depending on the stressors in his life as well as his compliance with medication. [25] Dr Dark stated that on 1 April 2010, the day after Ms Girven’s death, she conducted an examination into his mental state which was some thirty six hours after the alleged offence. She considered it would be important to have an assessment as soon as possible after the events. Dr Dark stated that when she -- 6 of 47 -- 7 examined him on 1 April 2010, he “did have psychotic symptoms”.2 She also indicated that he was distressed, in shock and numb. In her evidence she stated that she explored with him whether he was having any dissociative experiences but that he had indicated he was not and that he was able to keep track of time. On her examination of him, Dr Dark stated that he “did not report or appear to have a marked acute exacerbation of his psychotic symptoms despite evidence of residual psychosis” (original emphasis).3 [26] Dr Dark told the Court that Mr Austin always has residual symptoms and that he experiences hallucinations ‘all the time’.4 She indicated, however, that the hallucinations are not as distressing to him as his paranoia when he feels that he is under threat.5 Dr Dark stated that when he is floridly psychotic, he has paranoid delusions which predominate over his hallucinations. Dr Dark stated that Mr Austin has auditory hallucinations, usually in the nature of a running commentary and that he has ‘thought broadcasting’ believing that his thoughts are available to other people. Dr Dark stated that his hallucinations have been of a command nature in the past. On her assessment of him on 1 April 2010, however, Dr Dark stated that none of those features were prominent. She indicated that usually the command hallucinations were more prominent in the early part of his illness. [27] Dr Dark stated that longitudinally, Mr Austin did not present a coherent delusional system to her but that he had pseudo philosophical ideas and grandiose delusions of being “special” and that he was “selected to see what happens to me”.6 Dr Dark indicated that the delusional system that was subsequently set out in Dr Mann’s report had not been revealed to her and she considered that Dr Mann was able to access a more complex delusional system than she had been able to ascertain. She stated that whilst he had a history of delusional beliefs about computers controlling the world, the beliefs he disclosed to her were not as systematised as those he disclosed to Dr Mann. Dr Dark stated that she had done a lot of work with Mr Austin to control his positive symptoms and that “He’d developed a number of strategies to deal with those and put them in perspective.”7 [28] In response to questions, Dr Dark stated that she was not aware that Mr Austin had previously tried to attack Ms Girven with a knife. She also agreed that it was possible that Mr Austin may not have disclosed information to her because she was a woman and that he may well have been more forthcoming with men. She stated that she had not explored some issues with him such as “his sexual relationship and his issues in arousal”.8 [29] Dr Dark indicated that she did not necessarily consider that Mr Austin was guarded with her during her initial assessment on 1 April 2010 but rather she was concerned that Mr Austin was: “trying to make sense of everything that had happened, and I think I just wonder how much delusional work has actually followed on from such a catastrophic event, and because he has been isolated from other sources of contrary information.”9 2 T3-11 (24 July 2012), at line 3. 3 Update report of Dr Dark, received 30 August 2012, at p 2. 4 T3-13 (24 July 2012), at line 3. 5 T3-13 (24 July 2012), at lines 2-5. 6 Update report of Dr Dark, received 30 August 2012, at p2. 7 T3-31 (24 July 2012), at lines 25-26. 8 T3-35 (24 July 2012), at lines 52-53. 9 T3-13 (24 July 2012), at lines 52-56. -- 7 of 47 -- 8 [30] Dr Dark stated that the version of the events that Mr Austin gave her involved two men assaulting him and Bianca. He told her that the door of the van had been opened whilst he was speaking to Bianca in the back of the van. He stated that at the time he was “talking to Bianca about genres, opinions – opinions concerning thoughts. Information that Rhys had not shared with anyone before.”10 Dr Dark also noted that he told her that he felt that “confiding his private thoughts to Bianca may have put her at risk, and unwilling to go into them in detail as we would be put at risk. Some concern he may still be at risk”.11 Dr Dark stated that her notes recorded the following: “Impression residual psychosis but mild prior to event with no clear deprivation of capabilities. Paranoid reasoning about the events subsequently.”12 [31] Dr Dark stated that Mr Austin’s version of events remained consistent for a long period of time despite the fact he was sleep deprived and psychotic. She stated that she did not think he was lying at the time, “I found it, you know, quite a sincere description and his grief also very sincere.”13 Dr Dark stated that when he was admitted to hospital on 3 April 2010, Mr Austin was very paranoid. The assessment by Dr Coyle on 9 April 2010 [32] Mr Austin was assessed by Professor Ian Coyle at the PAH on 9 April 2010 at the request of his legal representatives. Dr Coyle considered that he “exhibited clear signs of paranoia”14 and noted a history of command hallucinations. He recorded that Mr Austin had heard a young male voice talking to him almost constantly since the death and that the voice “blames him for Bianca’s death and keeps telling him that he could have done better”.15 [33] Dr Coyle’s report states that: “Mr Austin gave me a very guarded and inchoate account of a conspiracy involving education and a sub-culture involving death and violence. He told me that it was too dangerous to let me know all of the details as ‘you could get killed’. When I persisted he told me that he had mentioned some of the details of this conspiracy to Dr Dark but told me that he could tell me significant details of the conspiracy. Mr Austin claims there are powerful forces at work that do not want this knowledge to become public.”16 [34] Dr Coyle then referred to Mr Austin’s account of dark clad assailants who considered that he should not be with someone like Bianca and that he had told her too much and she had to die. Dr Coyle indicated that “Simply put, Mr Austin attributed Ms Girven’s death, at least in part, to things he told her about the conspiracy.”17 He ultimately considered that not only was Mr Austin suffering from paranoid schizophrenia at the time of the attack, but that “he was suffering 10 T3-15 (24 July 2012), at lines 30-41. 11 T3-15 (24 July 2012), at lines 54-57. 12 T3-16 (24 July 2012), at lines 12-15. 13 T3-17 (24 July 2012), at lines 44-45. 14 Report of Professor Coyle, dated 20 April 2010, at p 3. 15 Ibid, at p 5. 16 Ibid, at p 5. 17 Ibid, at p 6. -- 8 of 47 -- 9 from auditory hallucinations at the material time; whether these were directly related to Ms Girven’s death is unclear.”18 Dr Coyle considered that the story that Ms Girven’s death was related to a conspiracy was “clearly a function of his paranoia”.19 The Report of Dr Morris dated 29 April 2010 [35] Mr Austin was also interviewed by the psychiatrist Dr Philip Morris at the request of his legal representatives on 20 April 2010. Dr Morris provided a report dated 29 April 2010. Dr Morris reported that Mr Austin felt guilty about telling Ms Girven ‘profound’ truths he knew of when he talked to her in the van. He continued: “He would not be specific about what he told Bianca. He is reluctant to tell anyone (including his doctors) about his ‘profound’ thoughts for fear that if others know they will be killed. The thoughts involved beliefs about spirits, powerful beings and God.”20 [36] Dr Morris noted that Mr Austin believed Ms Girven had been killed by the assailants who had been listening to the conversation and that she had to be killed because of what he told her. He noted that he was distressed by severe anxiety and “anxious about telling others about his ‘profound thoughts’.”21 [37] Dr Morris indicated that Mr Austin told him of his experience with his “voices” which Dr Morris noted were predominantly male voices inside his head “commenting on his thoughts” which at times “can command him to do things”.22 Subsequent Events [38] The police brief indicates that, after extensive investigations, they failed to identify any credible evidence to support Mr Austin’s version of two unknown assailants attacking him. Mr Austin was ultimately arrested and charged with murder on 5 August 2010. Mr Austin, however, continued to maintain his innocence and retold his story on a number of occasions. [39] Mr Austin admitted to the killing for the first time when he was interviewed by Dr Mann for the purposes of a s 238 Mental Health Act 2000 (Qld) (the “Act”) report in May 2011, which was 14 months after the alleged murder and nine months after his arrest. Dr Mann’s report and evidence to court on 24 April 2012 [40] Dr Mann’s evidence was that during his extensive interviews with Mr Austin on 10, 11 and 19 May 2011, Mr Austin confessed that he had killed Bianca and that he had fabricated the alternative story about two men attacking them in the van. [41] Dr Mann stated that Mr Austin told him that he had had experiences where he talked to Bianca telepathically prior to her death and that before she died she could make him do things. He indicated that when he was speaking to Bianca, he was unsure if he was speaking to her in his head or in person. He also said that there 18 Ibid, at p 8. 19 Ibid, at p 8. 20 Report of Dr Morris, dated 29 April 2010, at p 2. 21 Ibid, at p 2. 22 Ibid, at p 2. -- 9 of 47 -- 10 was the spirit of Bianca and also Bianca herself. He told Dr Mann that he felt that in retrospect, most conversations he had with her were talking to her spirit and not herself. Since her death, he stated that he has an awkward, strange relationship with her spirit and in regard to her death he indicated “she’s satisfied with what’s been done”.23 Mr Austin said that in the days before her death he had lots of conversations with her spirit and he believed that she knew she was going to die. He stated, “I had talked to her about it, there was a general plan between me and her spirit. She (Bianca’s spirit) was going to prepare Bianca for her death”. He then stated, “I’m not sure if Bianca the spirit told Bianca the person”.24 [42] Dr Mann indicated that when he asked Mr Austin why he killed Bianca, he said “The reason, a lot of reasons, I thought about it about a lot, I felt her death could be justified, I felt it was needed for society. He went on to say ‘a lot revolved around me,’ ‘I had to prove that I could kill her to God, because he had challenged me so many times and I’d never succeeded.’”25 When asked if he had tried to kill her before, Mr Austin replied “yes, in 2007 I tried to cut her on the neck, not sure what stopped me, I didn’t have the ability, not the right time”.26 [43] Dr Mann said that on the day he killed Bianca, Mr Austin had recalled that, ‘“It felt like it was the right time, everything was in place, I was able to do it.’ He went on to say, ‘Leading up to that day so many things happened’”.27 Mr Austin had continued “It’s part of the luna cycle, relevant time, significant point on the calendar”28 and that whilst he had semi-planned it, the full moon was significant and he was not aware of the significance until that night. He said he was not aware he was going to do it until he did it. When asked what he thought would happen after the murder, he said ‘“not really sure, I thought that her life would be preserved and used by God or other great beings, she would live on’ and ‘I thought she would become a God, not sure if God told me this or I thought it myself.’”29 [44] Dr Mann indicated that when he asked what actually happened after he killed Ms Girven, he replied, “I didn’t become God, I thought if she died her thoughts would be collected and she would be a supreme being on another planet, then I thought her thoughts would be lost in space as it would be so hard to collect that information from so far away”.30 He denied to Dr Mann that he had smoked cannabis that day. He recalls buying a bottle of cough syrup which made him sick. He indicated to Dr Mann that they had been to the New Moon Festival and they had left at about 10 pm and decided to go to the Mount Gravatt Lookout on the way back to his parents’ house. [45] Dr Mann said that Mr Austin told him that Mount Gravatt was significant to him and that his parents’ house backed onto the forest. He stated he felt he was connecting with God. He told him he did not know he was going to do it until he actually hit Ms Girven. In relation to the assault, he stated: “I was sitting there across from her, I thought I should strangle her, I took off a ring that I was wearing, my hand hit her in the face, I did 23 Report of Dr Mann, dated 2 June 2011, at p 7. 24 Ibid, at p 7. 25 Ibid, at p 7. 26 Ibid, at p 7. 27 Ibid, at p 7. 28 Ibid, at p 7. 29 Ibid, at p 7. 30 Ibid, at p 8. -- 10 of 47 -- 11 that, I’ve never done that before. It seemed the right moment for me. I’m not sure if I was controlling myself as I got up and went behind her and put her in a choke hold”.31 [46] He continued, “She didn’t say anything, I was confused at what I was doing” and “I put her in a hold and that was about it”.32 He told Dr Mann that he kept the choke hold going for about 10 minutes and that Ms Girven stopped breathing and eventually he released her and she was not moving. When he checked her pulse, it was very weak. [47] Dr Mann stated that Mr Austin said that, after he strangled her, he panicked. He knew that he had wanted it to happen and to succeed and to show God that he could do it but then said he did not know what to do and thought he had to cover it up. He said, “I think I expected God …, so obsessed with what I had to do, I didn’t think what was suppose to happen afterwards”.33 Mr Austin said, “I was put on the spot and thought I had to cover it up. I thought I’d try and cover it up, the crime scene so people thought someone else did it”.34 He stated, “I took Bianca out of the van, carried her body out of the van and put it on the grass, stood there for a bit, walked around, doing nothing, bit confused”.35 [48] Dr Mann indicated that Mr Austin stated that during that period he burnt his mobile phone SIM card and threw the burnt card and mobile phone on the ground. He stated that he was “thinking up a story of what I would say and the story of the two men coming to attack us and they wanted to kill Bianca and leave me.”36 He then stated that he picked up Bianca, put her in the van and drove her back to his parents’ place. [49] Mr Austin told him, “I thought, like it was difficult, a bad thing to do. I don’t know if it was the wrong thing to do. I think it was the right thing to do, not morally, but in terms of what God wanted.”37 He then stated, “God was looking for a story to tell, something that’s important, controversial, all sorts of things”.38 He stated that when he was holding Bianca he got a message from God saying congratulations. [50] In terms of his understanding of God, Dr Mann said that Mr Austin stated that God was a computer who broadcasts thoughts into his head. When he asked him why he had covered up his actions, Mr Austin told him that he had had thoughts of admitting it but he was not ready to admit it. H e denied any motive for the murder other than to complete a task for his computer god and denied that he attempted to have sex with Bianca or had sex with her that night. Mr Austin also denied sex was related in any way to the events on that evening but said that sex was involved with another previous incident when he had cut her neck during sex. [51] Dr Mann indicated that when he asked Mr Austin about the fabricated story of the two attackers, he had replied that it was like a metaphor. He believed that there were “two God like entities, programs that caused this to happen, one was the main 31 Ibid, at p 9. 32 Ibid, at p 9. 33 Ibid, at p 9. 34 Ibid, at p 9. 35 Ibid, at p 9. 36 Ibid, at p 9. 37 Ibid, at p 9. 38 Ibid, at p 9. -- 11 of 47 -- 12 God I hear in my head the other was a part of that God. He was preparing me for what was going to happen. He was preparing me for either outcome...I made a metaphor for these entities, dressed in black because what they were doing was very dark.”39 [52] Dr Mann stated that Mr Austin told him that he had had thoughts of homicidal acts in the past and that there were previous times where he ran away from a meditation camp and an elderly couple invited him to their caravan for a cup of tea and he thought it was an opportunity to kill them which had been given to him by God but then felt it was not the right time. He then recalled another time in 2006 when he was at the Toowong Private Hospital and he had become close to another female patient who had tried to commit suicide the night after they had sex. He said he asked her if she wanted to die and that he could kill her if she liked. He also recalled that they had used razors to cut each other while having sex. He also said that there were other times he was given the chance to kill but could not recall. He remembered that during the admission to the Toowong Private Hospital, he was found to have a knife in his possession and reported that he carried a knife around at all times as he felt paranoid. He also said that he had a knife to give himself a better chance of doing something. He added that he just liked knives. [53] In relation to the common assault charge, Dr Mann indicated that Mr Austin said that he remembered waking in the night and hearing voices that told him to attack the man and he did. He said he was hearing some voices as usual and that, at the time, he did not believe it was God, just a person talking to him. He stated he saw it as a chance to kill someone but he woke up and he did not continue because it was not the right time. [54] In relation to the possessing tainted property charge, Dr Mann stated that Mr Austin cannot recall a mobile phone and when police told him about it, he initially thought it was planted by the police. [55] Dr Mann diagnosed Mr Austin with schizophrenia paranoid type and considered that at the time of the offences, he was suffering from psychotic symptoms which included delusions and abnormal perceptual experiences. In terms of Mr Austin’s capacity at the time of the alleged murder, Dr Mann considered that for four years Mr Austin suffered from delusions, including beliefs about a computer god. These beliefs led him to believe he should kill someone. The delusions were reinforced by auditory hallucinations which he described as telepathy. He believed that his god wanted him to kill Bianca to progress along the path to becoming a god himself. He considered killing other people on several occasions in the past. [56] Dr Mann stated: “He believed that his God wanted him to kill Bianca Girven, to progress him along the path to becoming a God himself. It seems that he considered killing other people on several occasions in the past, including when he attacked Michael Whiteley. He concealed these murderous thoughts from his family, girlfriend and treating doctors. He discussed some of his delusional beliefs with family and treating clinicians, but kept parts of his delusional system secret. After he killed Bianca Girven, he concocted an unconvincing story about two masked men murdering her. He told this false story to his family, police 39 Ibid, at p 10. -- 12 of 47 -- 13 and his treating clinicians for fourteen months before admitting his guilt. It could be argued, that he denied his guilt because he knew that he ought not murder Bianca, and that he wanted to avoid the consequences. It is also possible that he murdered Bianca Girven for reasons, such as anger or jealousy. He may have concocted his false story in order to avoid prison and when it became apparent to him that this would not be successful, he could have embellished his psychotic symptoms in order to gain a mental health defence. I do not believe however, that the clinical presentation supports this view.”40 [57] Dr Mann indicated that Mr Austin denied substance abuse on the day of Ms Girven’s death and the UDS on 3 April 2010 does not suggest he was intoxicated by cannabis or amphetamines. It did detect opiate substances, but there is no clear indication as to the exact quantity and there is insufficient evidence to conclude that the cough mixture would have sufficiently affected his mental state. [58] In terms of Mr Austin’s state of mind in relation to the assault charge, Dr Mann considers he was driven by a delusional belief that the complainant was going to harm his family and he reported hearing auditory hallucinations urging him on. Accordingly, he considered that at the time, Mr Austin was completely deprived of the capacity to reason as to the moral rightness or wrongness of his conduct and was therefore deprived of that capacity. He did not think that he was deprived of the capacity to control his actions. Dr Mann’s Addendum Report 4 February 2013 [59] In response to a request that Dr Mann provide an opinion with regards to the issue of a possible dispute of the facts, and whether he maintained the opinions expressed in his earlier reports, Dr Mann stated: “I agree with the opinion expressed by Dr Voita in her report of 9/1/13. I do not believe there is a dispute of the facts. I maintain the opinion expressed in my earlier reports.”41 Dr Angela Voita’s reports [60] Dr Angela Voita has been Mr Austin’s treating psychiatrist at The Park Centre for Mental Health (“HSIU”) since August 2012 and had previously assessed him in her role as Acting Director of HSIU in June 2012 when his mental state had deteriorated and he disclosed homicidal ideation. Dr Voita provided a report on Mr Austin’s current mental state dated 29 November 2012 with updated reports dated 9 and 31 January 2013. Report dated 29 November 2012 [61] In her report of 29 November 2012, Dr Voita stated that Mr Austin’s mental state had fluctuated and in August 2012 he continued to describe a number of psychotic symptoms including auditory hallucinations, passivity phenomena, delusions of reference and bizarre delusions in relation to communications with a computer. Mr Austin had limited insight into his illness. His medication was changed and he 40 Ibid, at pp 15-16. 41 Addendum Report of Dr Mann, dated 4 February 2013. -- 13 of 47 -- 14 was placed on an increasing dose of Ariprazole and his Paliperidone was gradually reduced. Dr Voita noted a marked improvement in his mental state by mid October 2012 which she considered was due to the change in medication and to an improvement of his insight into his mental illness. She stated, however, that on 16 October 2012 he still described daily auditory hallucinations from the computer whom he believes to be God. [62] Dr Voita indicated that in October 2012, he had better insight into the fact that the symptoms he described were due to his mental illness. She continued; “When I assessed Mr Austin on the 7th of November 2012 though, I noted a deterioration in his mental state. He was notably thought disordered and preoccupied with the alleged offences. He was seen for a ninety minute interview and initially stated that he believed that it was his own thoughts to kill his girlfriend Bianca. As the interview progressed his thought disorder became more prominent and he described having had thoughts in the past about killing but then communicating with the computer and getting instructions and advice about how he might go about this. He was concerned he may not have explained these thoughts properly to other psychiatrist who had assessed him. He also stated that the day prior to killing Bianca he had tried to strangle her in a movie theatre but could not go through with it. He exhibited remorse and reported flashbacks to the incident leading to his girlfriend's death which caused him considerable distress. He also stated that he believed that he should be punished for what he did it and did not mind if he was returned to jail.”42 [63] Dr Voita considered that Mr Austin was at that point in time fit for trial according to the R v Presser43 criteria but that his fitness was marginal given his current negative cognitions and beliefs that he should be punished. Report dated 9 January 2013 [64] In a further report dated 9 January 2013, Dr Voita confirmed that Mr Austin was fit for trial. She also noted that an issue had arisen as to whether Mr Austin’s more recent account of the offence brought into question the impact of auditory hallucinations which the reporting psychiatrists had relied on in coming to their opinions. [65] Dr Voita stated: “In my opinion Mr Austin's more recent statements have occurred in the context of a deterioration in his mental state, development of a depressive illness, poor insight into his psychotic illness and the difficulties he has in expressing and explaining his psychotic symptoms and experiences when he is unwell. I am of the opinion that there is no Section 269 dispute.”44 [66] Dr Voita stated that since writing the report of 29 November 2012, Mr Austin’s mental state had deteriorated further and that he had consented to a trial of Clozapine on 29 November 2012. Dr Voita noted that from 8 December 2012, the 42 Report of Dr Angela Voita, dated 29 November 2012, at pp 2-3. 43 [1958] ALR 248. 44 Update Report of Dr Angela Voita, dated 9 January 2013, at p 1. -- 14 of 47 -- 15 auditory hallucinations Mr Austin experienced instructed him to harm others, smash furniture and yell out. She noted he became increasingly unwell and was placed on 15 minute observations on 10 December 2012. On that date, he was instructed by voices to throw a chair and acted on those voices. On 11 December 2012, he pushed over a table in the dining area and yelled, secondary to command hallucinations, and on 12 December 2012, he smashed a table in the dining area of the Franklin Unit, again in response to auditory hallucinations. She stated that he was reporting that he was having ongoing auditory hallucinations telling him to smash furniture. He was subsequently secluded on that date. He indicated to staff that the voices were telling him to hurt staff. [67] Dr Voita continued: “On 13 December 2012, Mr Austin reported to Dr Geertsema during an open door interview that he was experiencing thoughts to harm others which were inserted into his head by a computer. The interview was terminated early as he stated that he was having thoughts of pushing and hurting Dr Geertsema and the three other nurses present. Later in the day he reported that he was hearing voices and had the urge to kick the door. He stated that he was trying to control these urges but later kicked the door. He was given PRN medication at his request at 18.50 hours and reached through the seclusion hatch and tapped a nurse on the side of her right face. He backed away and was later apologetic.”45 [68] Dr Voita reported that Mr Austin had further urges to hit staff the following day and he indicated he was having trouble resisting them. Dr Voita indicated that when she reviewed him on 14 December 2012: “Mr Austin reported that he had voices from the satellite and thoughts to hit and push people and to kick his mattress. He stated that he did not know how to explain this better and at times they seem like thoughts and at times like voices.”46 [69] Dr Voita stated that the behaviour continued on 15, 16 and 17 December 2012 and that when she reviewed him on 17 December, Mr Austin admitted that he had charged at nurses and that he had heard a voice telling him to scare staff. He also stated he had heard voices telling him to punch people. Dr Voita stated: “Notably during the interview he stated that he did not believe that the urges related to his illness but when asked to explain he could not and became very thought disordered and stated that he could not make sense of it all and that he communicated with the computer and could not tell if it was his thought or the computer putting thoughts into his head that made him do these things.”47 [70] Dr Voita stated that due to Mr Austin’s mental state and his level of distress, he was commenced on a course of ECT on 21 December 2012. Following that treatment, his mental state improved markedly. He was ultimately released from seclusion on 23 December 2012. Dr Voita indicated that in early January 2013, Mr Austin had 45 Ibid, at p 2. 46 Ibid, at p 3. 47 Ibid, at p 3. -- 15 of 47 -- 16 developed further insight into his illness in the absence of formal thought disorder, an improved mood and the absence of psychotic symptoms. She considered that in the absence of psychotic symptoms, he was better able to explain his past psychotic thinking. Dr Voita stated that when she reviewed Mr Austin on 8 January 2013, he had not heard voices for a number of weeks and had had no communications with the computer/satellite for over a week. Dr Voita reported that: “He stated that he was coming to terms with the fact that his experiences in recent years were due to having a mental illness. He stated that the last time he had been free of psychotic symptoms was in 2006 prior to first developing a mental illness. He reported no urges to hurt others and believed now that these experiences relate to him being unwell and are not his thoughts because he now no longer has these thoughts. He reported that at the time of the killing of Bianca he was hearing voices and having communications with the computer and now realises that it was not his own thoughts or wishes to kill her. He stated that he was also depressed at the time and realises this now because he felt very different now to how he felt in terms of his mood at the time.”48 [71] Dr Voita stated that in terms of the future management of Mr Austin, her view remains unchanged from the report dated 29 November 2012. Although he has now agreed to a trial of Clozapine, his Clozapine levels are still therapeutic and there would need to be a more extended period of stability in his mental state for any Limited Community Treatment to occur. Dr Voita’s Update Report dated 31 January 2013 [72] Dr Voita provided a further report for the adjourned hearing in March 2013 and reported as follows: “Since my last report dated 9th of January 2013, Mr Austin's mood has remained stable and he reports his mood as 7-8/10. His sleep is good and he denies suicidal ideation. He is notably more settled in his mental stated (sic) and engaged in rehabilitation activities both on and off the ward. His affect is warmer and he is less isolative. He denies the presence of homicidal ideation, command hallucinations to harm others or damage furniture, communications with the satellite or thought insertion. He still reports that his concentration is still poor at times. He has been forthcoming about his symptoms on interviews. Nevertheless in the last two weeks Mr Austin has reported some delusions or reference from the television and communications from Bianca which are psychotic in nature and quality. When he has attempted to explain these experiences he exhibits thought disorder and has difficulty articulating his experiences. In my opinion these experiences represent a re-emergence of low grade psychotic symptoms. I note though that Mr Austin is now more forthcoming and engaged with the treating team but still exhibits only partial insight into these new experiences being symptoms of his mental illness. 48 Ibid, at p 4. -- 16 of 47 -- 17 … It is my opinion that according to the R-v-Presser criteria, Mr Austin remains fit for trial. He was last assessed by me in relation to his fitness for trial on the 25th of January 2013.”49 Dr Dark’s subsequent opinion [73] Dr Dark was asked to give her opinion on Mr Austin’s subsequent revelations that he had killed Ms Girven. Dr Dark stated that, on the balance of probabilities, she accepted his confession as a true account of the killing. In her view, Mr Austin had not initially shared the extent of his psychotic phenomena with his treating team and that his actions were determined by his psychosis. She noted the following in her update report received on 30 August 2012: “He had spoken throughout his treatment of command hallucinations which at times were beyond his control, and of his illness in terms of personality rather than recognising it as an illness. He believed people could read his thoughts and this may have influenced what he verbalised to staff. It is also to be noted that he has had brief intense exacerbations of psychosis under periods of stress even in the absence of substance abuse. When assessed by me on 1/4/12 he was concerned that we could also possibly be at risk if he spoke with us. Taking all of the above into consideration, on the balance of probabilities it is now my opinion that Mr Austin was of unsound mind at the time of the offence that he was deprived of the capacity to know what he was doing was wrong and deprived of the capacity to control his actions.”50 [74] In a letter dated 9 January 2013, Dr Dark reviewed further new information and indicated that she concurred with the opinion of Dr Voita, as outlined in her report also dated 9 January 2013, namely that: “Mr Austin was ‘hearing voices and having communication with the computer’ that deprived him of the capacity to control his actions, resulting in Bianca’s death. Mr Austin has a consistent history of not fully accepting his illness with very poor insight and judgement. He has in the past referred to his psychotic experiences as his ‘personality’ rather than accept these experiences as psychotically driven and symptoms of an illness. It is clear he cared for Bianca and had no wish to kill her. His psychotic reasoning may have led him to externalise what had happened resulting in the report of being attacked. In my opinion this is not inconsistent with being deprived of the capacity to control his actions due to severe mental illness.”51 The evidence of Dr Grant [75] Dr Grant gave evidence at the hearing and provided a report dated 13 November 2011. He also provided further update reports dated 21 August 2012 and 12 January 2013. 49 Update Report of Dr Angela Voita, dated 31 January 2013, at pp 1-2. 50 Undated update report of Dr Dark, received 30 August 2013, at p 3. 51 Letter from Dr Dark to Mental Health Court Acting Registrar, dated 9 January 2013. -- 17 of 47 -- 18 Report dated 13 November 2011 [76] Dr Grant considered that at the time of all of the offences, Mr Austin was suffering from a mental illness, namely paranoid schizophrenia. Dr Grant considered that at the time of the offences Mr Austin was suffering from very significant psychotic symptoms. He described psychotic symptoms which had commenced in 2005 and those symptoms included a belief that he had to carry out a killing, for apparently psychotic reasons, and that he felt obliged to carry out such an act and was urged to do so by both auditory hallucinations and other symptoms, such as thought insertion and telepathic communications. Dr Grant considered that the symptoms appeared to be severe at the time of the murder of Ms Girven but Mr Austin was keeping them secret. Mr Austin indicated to Dr Grant that he started to feel that he was having a lot of telepathic conversations with Bianca during the afternoon and evening of the murder. [77] Dr Grant noted that the paranoid schizophrenic illness had been present since at least 2005 and that its onset was in the context of poly substance abuse, particularly cannabis on a chronic basis. He considered that the poly substance abuse may have contributed to the ongoing symptomatology and severity of his illness. He stated that the illness has required multiple admissions to hospital with questionable responses to treatment. He considered that Mr Austin’s insight remains poor. [78] Dr Grant stated that at the time of the murder of his girlfriend, Mr Austin was mostly non compliant with his antipsychotic medication. Dr Grant indicated that during the interview, Mr Austin described multiple psychotic symptoms with poor insight, despite months of anti psychotic treatment. Dr Grant considered Mr Austin’s illness to be treatment resistant, although the medication had had some attenuating effect on the most obvious of his symptoms. [79] Dr Grant considered that Mr Austin has exhibited some past antisocial behaviour, particularly in relation to his drug use and secondary to early psychotic symptoms. He considered there is insufficient evidence to make a diagnosis of antisocial personality disorder. He considered that those behavioural symptoms are most likely secondary to the early effects of his schizophrenia and secondary effects of substance abuse. Dr Grant considered that at the time of the offences Mr Austin was deprived of the capacity to know that he ought not do the acts and that deprivation was the result of his florid psychotic symptomatology and it is likely that at the time of the offences, he was deprived of the capacity for control in a true sense because of the strong influence of the psychotic symptoms over his behaviour. He does not consider he was deprived of the capacity to know the nature of his actions. [80] In terms of the false story that he concocted after the murder, Dr Grant does not consider that it detracts from the deprivation of capacities. He considers that the concocted alibi was given in order to explain his actions, but at the same time, Mr Austin believed his actions were justified and necessary as a result of his psychotic symptomatology. Dr Grant stated that such double bookkeeping is not uncommon in psychotic crimes where there is some awareness of the illegality of the actions but an absence of moral capacity. [81] Dr Grant also considered that Mr Austin’s eventual revelation of his true actions could have been prompted by his improved treatment to the extent that he was able -- 18 of 47 -- 19 to reveal his psychotic beliefs in relation to the offence. Dr Grant also considered that Mr Austin was suffering from an abnormality of the mind and that, if he was not found to be totally deprived of the capacity, he had substantial impairment of the capacity to know that he ought not do the act and capacity for the control of his actions and that this would qualify him for a defence of diminished responsibility. [82] Dr Grant does not consider that Mr Austin was intoxicated with any illegal substance at the time of the offences, because there is no objective evidence to indicate that he was intoxicated. He notes that he may have had one bottle of beer earlier in the day and consumed some cough mixture. However, Dr Grant does not consider that either of those intakes would have caused intoxication relevant to his mental status. Further Reports of Dr Grant dated 21 August 2012 and 12 January 2013 [83] On 21 August 2012, Dr Grant provided a further report after he was asked to consider further material from The Park Centre for Mental Health in relation to case notes of Mr Austin’s behaviour whilst being treated. Dr Grant considered that the material did not change his opinions that he had previously expressed and, in fact, confirmed the observations and the opinions he had previously given. He stated that throughout the case notes there is evidence of ongoing mental illness with continued auditory hallucinations and at times withdrawal and preoccupation with inner experiences. [84] Dr Grant considered that the most relevant material is dated 15 June 2012 and involves entries by psychologist, T Smith, psychiatrist Dr Angela Voita, and an entry by psychiatrist Dr Ross Scott. He stated that those interviews detail the exact symptoms which he obtained from Mr Austin when he interviewed him for the report. He considered that the material supports the conclusion he had previously reached that Mr Austin was of unsound mind at the time of the killing of Ms Girven and also illustrates ongoing symptomotogy which renders Mr Austin a high risk of future violent behaviour. He considered that the material indicates Mr Austin has experienced strong homicidal impulses, driven by psychotic experiences, and that those experiences were active at the time of his offence and are ongoing. [85] In a further report dated 12 January 2013, Dr Grant indicated that he had reviewed a further report by Dr Angela Voita, as well as a transcript of the proceedings of the Mental Health Court and the medical records of The Park between July and November 2012. Dr Grant stated that having read the material, he remained of the opinion previously expressed that Mr Austin was of unsound mind at the time. Dr Grant considered that when he saw him he obtained a history which indicated Mr Austin; “had for years been suffering from complex psychotic symptomatology including a range of delusions, passivity phenomena, thought insertion, probable thought broadcasting, and auditory hallucinations, some of which were command hallucinations. It is notable that at times he had denied to other observers that he was experiencing these symptoms but in my opinion the history which he gave me after some hours of interviewing clearly indicated the presence of these ongoing psychotic phenomena. The notes from The Park Hospital indicate that those symptoms have continued and indeed have become worse, with the presence of obvious thought disorder and behaviour that was the result of acting on psychotic phenomena. -- 19 of 47 -- 20 Mr Austin's insight into his psychotic symptoms has been poor and I agree with Dr Voita that he has had great difficulty understanding the phenomena he was experiencing and did not see them, (sic) even Mr Austin's insight into his psychotic symptoms has been poor and I agree with Dr Voita that he has had great difficulty understanding the phenomena he was experiencing and did not see them, even when I interviewed him, as the result of suffering from schizophrenia. I believe that he has had ongoing difficulty describing these phenomena, especially when he is more unwell. His illness has fluctuated to some extent but in my opinion has been present for many years and has never gone into remission. In my opinion he has had ongoing difficulty in distinguishing between what is psychosis and what is, in his opinion, part of his usual thinking patterns. In my opinion there is no significant dispute of the facts which might be relevant to s269 of the Mental Health Act.”52 [86] Dr Grant also stated that when Mr Austin becomes significantly depressed, he expresses the view that he needs to go to prison and be punished for his crimes. He considered that that argues against a view that Mr Austin has a motivation to use malingering to avoid imprisonment and achieve a mental health defence. [87] Dr Grant concluded his report by advising: “I would caution against taking a simplistic view of his motivations for the offence and would stress that in my opinion the offence arose from a very complex psychotic mental state of which auditory hallucinations of a command type were only one aspect.”53 Dr Pamela van de Hoef’s evidence [88] Dr van de Hoef gave evidence at the hearing on 25 July 2012. Report 21 October 2011 [89] In a report dated 21 October 2011, Dr Pamela van de Hoef said that Mr Austin gave her a similar account of the murder charge and in particular, he indicated that quite a while before the killing, he somehow got it into his head that he had to kill someone to prove he could do it. He said it was a developing idea that somehow got manifested in his thoughts and that he put himself into a position and was given an opportunity to do it a number of times. He said the idea started with voices and them thinking about him and that he could not tell the voices to stop because he agreed with them. He said he used to believe the voices were a person and then a computer and that he was still in that phase now. [90] Dr van de Hoef indicated that Mr Austin said that when he failed to kill, he felt pretty bad and was filled with regret that he had not succeeded. He gave her a number of examples of the opportunities he had had over the years to kill somebody. He talked about an occasion in early 2006 when he had gone for a walk in the middle of the night into the bush at the back of his parents’ home. He had found a stick that looked like a weapon and by the time he got to the top of 52 Report of Dr Grant, dated 12 January 2013, at pp 1-2. 53 Ibid, at p 2. -- 20 of 47 -- 21 Mount Gravatt, he thought of using the weapon to kill someone. There were a few cars parked at the top and he thought he would kill someone there, but soon realised it was a difficult thing to do. He then asked the occupant of one of the cars for a smoke and walked away, thinking he would do it next time. The thought festered in his mind. [91] Dr van de Hoef stated that Mr Austin indicated that the next time he had such a thought was when a friend came to stay at his place. They had been smoking cannabis and they settled down to sleep. However, during the night he went outside, got a cricket stump and brought it back inside with the thought that he wanted to hit his friend and kill him with it. He said he stood over him as he slept but could not do it as it was out of place and the friend woke up. They had a conversation in which he told his friend that he heard voices telling him that “they want you to die”. He said his friend “took it fine”54 but the friend subsequently told his parents who told Mr Austin’s parents that he had been acting strangely. He then mentioned the three other times he thought to kill someone. He referred to the meditation camp in 2006 and the old couple in a campervan. Another time he had broken into a house and stood in the bedroom, watching two guys sleeping, but then could not do it and went away. [92] Dr van de Hoef noted that Mr Austin had thoughts to kill in the week before Bianca’s death when he and Bianca had gone to the cinema. It was clear he was having lots and lots of thoughts to kill in the weeks before and could not explain why it was so intense. He stated that it felt like a good time for it to happen; “I guess there was some kind of earthly process going on or a lot of events in my life. The voices had something to do with it”.55 He indicated that on the day of the killing, he was hearing a lot of voices and thinking about killing her a lot. He described going to the Full Moon Festival at West End, then driving in the van to the Mount Gravatt Lookout where they smoked a cigarette. He told her he wanted to have a chat with her. They drove part way down the hill and parked in a small car park and he said he was thinking about what he would do to end it. He said he asked her to hop in the back of the van with him and if she had ever heard voices before. He denied any intention to engage in or attempt sexual intercourse and denied any argument or derogatory remarks by Bianca or any indication she was intending to end their relationship. He said there was nothing that she said that angered him. [93] Dr van de Hoef stated that that day, and the day before, he had been talking to Bianca in his head and she was answering in a vague sort of way about killing her and she was preparing her spirit for that. He said that, once in the back of the van, he pursued it a bit more and asked if she had ever heard people’s names. She again denied that but eventually said she had a long time ago. He said he took a ring off his finger and laid it down next to him. He said he was thinking about attacking her but also about the events of the day and considered that now was the right time to do it. He said that she was in the right place and he was in the right place. All day and evening had been a good day and a beautiful time right up to the moment he struck her. [94] Dr van de Hoef stated that Mr Austin told her that if he had failed to kill Bianca that night, he probably would have turned it into something romantic. He said he 54 Report of Dr van de Hoef, dated 21 October 2011, at p 5. 55 Ibid, at p 5. -- 21 of 47 -- 22 snapped out his arm and hit her, without really thinking, and then the rest of the attack happened. He got right around behind her and pulled his arm around her neck; she struggled and was extremely startled as she was not expecting it. She asked him to stop, then he got her into a position she could not get out of, with him behind her, laying down with his legs wrapped around her and his arms around her neck until he “choked her out”.56 [95] Dr van de Hoef stated that Mr Austin told her that he could feel the tension gradually going out of her body and remembered telling Bianca she would not live through it. He thought he maintained that position for a good 10 minutes or so, and then gradually released her. He did not know what to do next and felt he should have been relieved and relaxed but when he saw his girlfriend’s body in front of him he felt awkward. He said he knew that when he was thinking about killing her, it would have consequences but he had to do it. He knew people might not like what he did and that there was a possibility he could go to jail but it did not matter. He had to prove it to himself or he would have felt that he failed. [96] Dr van de Hoef indicated that Mr Austin then told Ms Girven that he thought up the story of people attacking him and he tried to inflict some injuries on himself by hitting his head on the ground a few times and on the trim of the van. That caused a few grazes, but nothing serious. He then removed and burnt his sim card and threw his mobile phone away before going through Bianca’s things and scattering them on the front seat. [97] Dr van de Hoef indicated to the Court that the striking aspect of Mr Austin’s presentation was his restricted affect and the “deadpan, chilling manner”57 in which he described chronic homicidal thoughts and plans, and the often seemingly trivial factors that aborted them. She considered his dispassionate description of the killing and that the businesslike manner in which he concocted an alibi that was self protective was remarkable. She stated that the strong impression in her interview with him was his striking lack of appreciation of the gross abnormality and abhorrent nature of many of his ideas and much of his behaviour and the striking lack of empathy for any of his potential victims including the murder victim. [98] Dr van de Hoef considered that some of his ideas impressed her as being grandiose, or at least extremely narcissistic, in the sense that he was above the standards that applied to others. She considered he had a history of persecutory (paranoid thinking) as well as grandiose ideas about his role in the world and possibly the cosmos. She noted he has a long history of voices interacting with his thoughts. [99] Initially, Dr van de Hoef found it difficult to get a clear indication that the thoughts to kill were driven by auditory hallucinations, including commands, rather than by some other motivation. She also considered that it was difficult to get an indication that the motivation to escape arrest was anything other than an ordinary one of fear. Dr van de Hoef noted that, in his interview, Mr Austin did describe strange and different thoughts, big thoughts about the universe and how everything fitted together. [100] Dr van de Hoef noted that after his admission, and for at least two months, he was noted to be isolative and reporting that he constantly experienced auditory hallucinations including the voice of God informing him about his legal matters, 56 Ibid, at p 7. 57 T4-42 (25 July 2012), at line 47. -- 22 of 47 -- 23 influencing him, controlling his thoughts and commanding him. He also continued to report telepathic communication with others. Dr van de Hoef considered that he fulfils the diagnostic criteria for substance abuse disorders, the chief substances being cannabis, psycho stimulants and opiates. [101] Dr van de Hoef considered that in 2004, in the context of substance abuse, he developed an insidious chronic psychotic disorder most likely paranoid schizophrenia and that the illness has been characterised by a plethora of fluctuating psychotic symptoms including grandiose and bizarre delusional beliefs about the universe, thought disorganisation and recurrent homicidal ideas, sometimes about friends including the eventual murder victim, and sometimes about strangers. [102] Dr van de Hoef also noted multiple auditory hallucinations, including the voice of God and command hallucinations, passivity phenomena, thought echoing, emotional blunting and insightlessness. She considered that the emotional restriction, along with guardedness and possibly continuing voices instructing him, may have masked the true extent and severity of his illness. She also considered that some of his emotional restriction and lack of empathy may be due to antisocial or psychopathic personality traits. [103] Dr van de Hoef considered that many of the prescribed antipsychotic medications were not reliably taken and were not fully effective. She considered that his compliance fell away after the revocation of the Forensic Order in August 2009 and was therefore patchy or nil at the time of the commission of the murder. Dr van de Hoef noted that his treating psychiatrist thought he had improved and was stable at the time of the offence, and that he had been stable for two years. She also noted that at the time of the killing, his treating psychiatrist thought his illness was mild and his parents who had previously detected exacerbations had no cause for concern. [104] Dr van de Hoef also stated that she considered that his mental state deteriorated in the days and weeks after Bianca’s death and fluctuated during the period he maintained the false story. In her view, Mr Austin killed Bianca for psychotic reasons believing it was meant to be and that he had some sort of mission to kill, possibly in response to auditory command hallucinations. However, Dr van de Hoef noted that almost immediately after doing so, he appeared to have the capacity to know that what he did was wrong and sought to cover it up and escape arrest. Whilst psychotic processes might account for that, she was not persuaded by any of the available material that the false account was driven by psychotic reasons. [105] Dr van de Hoef did not consider that the illness deprived him of the capacity to know the nature of the act as he appeared to be able to select the time and place of the killing, which she considered may indicate he had the capacity to control his actions. However, she conceded that, if voices and overwhelming delusional thoughts were present that it was “meant to be” at a “right” or ordained time, then that may not be as it appeared.58 [106] Dr van de Hoef told the Court that the more difficult question is in relation to the capacity to know he ought not do the act. She considered that Mr Austin knew killing Bianca would have consequences and would get him into trouble, but he had to do it and had been driven to do that act by psychotic beliefs and possibly 58 Report of Dr van de Hoef, dated 21 October 2011, at p 17. -- 23 of 47 -- 24 hallucinatory commanding voices. However, as Dr van de Hoef noted, it seems that almost immediately after he had strangled her, leaving her alive but dying from the effects of asphyxia, he set about constructing and delivering a self- serving, plausible alternative account of an attack on them both and continued to do so for more than 12 months. He said he was meant to get away with it and later saw the fabrication as a waste of time. [107] Dr van de Hoef indicated she was unable to discover any psychotic basis for the belief he should get away with it. Accordingly, whilst she was satisfied that his capacity was impaired in relation to the capacity to know he ought not do the act, she was not initially satisfied that he was fully deprived in relation to that capacity. [108] She was satisfied in relation to the assault charge that his schizophrenic illness deprived him of the capacity to know he ought not do the act. [109] In relation to the possession of tainted property charge, she could find no evidence that his illness deprived him of any of the relevant capacities. [110] Dr van de Hoef, however, subsequently revised those views in her later reports of 1 September 2012 and 23 January 2013. Dr van de Hoef’s report dated 1 September 2012 [111] Dr van de Hoef stated that despite his continued treatment with antipsychotics at both the PAH and The Park, Mr Austin has had persistent, active psychotic symptoms, which worsened when his dosage of paliperidone was reduced, and worsened again in about May 2012. She therefore considered that the information indicated that his symptoms are “more extensive and florid (with command hallucinations of God/a computer exhorting him to kill again- perhaps a co-patient, or a family member, with grandiose delusions of a 'purpose' to kill, delusions from the TV and formal thought disorder)”.59 [112] Dr van de Hoef considered that his psychotic symptoms, as manifested in late 2012, were far more severe than previously appreciated. She noted those symptoms as: “constant, severe and dangerous (to a number of others) than previously appreciated (except, I think, by J Henley in Toowong, and the unfortunate man he tried to strangle who is the complainant in the assault charge.) He disclosed these recent symptoms at a time he was clearly preoccupied (and doubtless stressed by) with MHC proceedings, but during which there was little, if any appreciable observable difference, by experienced MH staff, in his presentation and behaviour. It was also a time in which illicit drugs and other legal intoxicants are unlikely to have any role at all.”60 [113] Dr van de Hoef noted that Mr Austin was able to actively conceal his symptoms, which was a function of the fact that he was basically chronically insightless. She stated: “as a result, has actively concealed, and often minimised much of his psychotic symptomatology to his treaters, making his assessment much more difficult. It is therefore possible, round 30/03/2010 (and 59 First Addendum Report of Dr van de Hoef, dated 1 September 2012, at p 4. 60 Ibid, at p 5. -- 24 of 47 -- 25 at other times, too), even though he was clearly nowhere near as withdrawn and preoccupied as he is now, that he could have managed to conceal psychotic experiences from Dr Dark, his parents and Bianca Girven.”61 [114] Ultimately, Dr van de Hoef concluded that she needed to amend her opinion due to the latest reports and disclosures expressed in this Court. She concluded: “I therefore support a finding of unsoundness of mind for all the offences based on a complete deprivation by virtue of his schizophrenic illness, of the capacity to ought not do the act(s), and perhaps also of the capacity to control his actions in the case of the assault and murder charges, and of Diminished Responsibility in the case of the murder charge.”62 Dr van de Hoef’s report dated 23 January 2013 [115] Dr van de Hoef provided a further report dated 23 January 2013 in order to comment on features of Mr Austin’s mental state in light of comments he had made to members of the treating team and to provide her view as to whether there was a dispute of facts pursuant to s 269 of the Act. [116] Dr van de Hoef noted that the hospital notes record that Mr Austin stated that he had experienced low grade psychotic symptoms for years and that he felt ‘ashamed’ of his ideas to kill so minimised them or previously failed to disclose them and that he had disclosed and distorted facts in his accounts. She also noted that Dr Voita indicated that Mr Austin has been prescribed higher doses and a combination of antipsychotics including Clozapine and that he had a course of ECT in December 2012. As he is now fit for trial, she considered that those facts meant he was very depressed and more psychotic in the last 3 months of 2012, and that he has responded to treatment. [117] Dr van de Hoef indicated that there were three remarkable features in this case. First, she considered the fact that Mr Austin has given such differing and divergent accounts to the reporting psychiatrists over time to be unusual. She stated: “It seems to me we are now in a position of having to opine about retrospective descriptions from Rhys Austin regarding his mental state in March 2010, descriptions he gave at a time (the latter half of 2012) when he was becoming more unwell, i.e. when clearly more psychotic and depressed, but apparently more forthcoming.”63 [118] In terms of the second feature, Dr van de Hoef stated that there is a history of ego syntonic ideas and fantasies that she did not consider were clearly related to the observable or reported intensity of symptoms and signs of major mental illness. She considered that that factor, combined with the variability of his ability of capacity to disclose those thoughts, was the major risk factor going forward. She noted that on a number of occasions, Mr Austin stated that he had experienced command hallucinations and other psychotic experiences encouraging him to kill but that he was able to make the distinction that he also had his own thoughts to kill and some enjoyment of those thoughts. 61 Ibid, at p 5. 62 Ibid, at p 5. 63 Second Addendum Report of Dr van de Hoef, dated 23 January 2013, at p 2. -- 25 of 47 -- 26 [119] Dr van de Hoef considered this to be a vexed question and stated that if he had these thrill seeking ideas and fantasies to kill which were independent to his mental illness, then that made him less amenable to treatment and far more dangerous. She also indicated that if, on the other hand, those ideas are entirely part and parcel of his schizophrenic illness, then it is logical not to put too much weight on the disclosures about the index offence he made between August and December 2012. Dr van de Hoef indicated that if those disclosures were part and parcel of the illness, then she did not consider that there was a s 269 dispute of fact. [120] Dr van de Hoef indicated that the third factor was that: “3. Rhys Austin has given different versions of his mental state at the material time to different interviewers at different times. As a result, the Court has heard that neither Dr F Dark (almost immediately after the index offence) nor this reporter (in my initial report) thought Rhys Austin was particularly mentally unwell at the time of the attack on Bianca Girven. Dr R Scott, his previous treating psychiatrist at High Secure (at a time when the nursing notes round the clock indicated no great disturbance in Rhys Austin for much of the time), treated him with much more modest doses of antipsychotic medication. Differing accounts over time are not themselves unusual, as a person may change their account e.g. as their illness improves with treatment. What strikes me as unusual in this case, is that Rhys Austin now appears to have had multiple reasons for doing so, including advice from his parents (i.e. not all are psychotic reasons). At this stage, with so many different versions, I think it will be very difficult to ever know the truth of whether he heard command hallucinations to kill at the time of the attack on his girlfriend. 4. I am all too aware that I have rescinded my initial opinion, based mainly on the assessments in High Secure in the latter half of 2012, which found Rhys Austin had a number of florid psychotic symptoms (despite appearing settled and reasonably functional much of the time.) Even in the latest material, I can find no explanation for a psychotic basis for his apparently self-serving account of the 2 masked men, which he concocted at almost the same time as he may have been deprived of all the relevant capacities, and psychotically driven to kill Bianca Girven. It is also odd, I think, that if he experienced command hallucinations so powerful and overwhelming that he was forced by them to kill, that he did not mention them (and mention them non-selectively) for months, while he held to the bogus account of the masked men.”64 [121] Dr van de Hoef concluded: “That said, after reconsidering all the material available to me, I hold to the opinions expressed in the (first) addendum report (1/09/2012), and would defer to his treating psychiatrist's opinions regarding fitness for trial.”65 64 Ibid, at pp 3-4. 65 Ibid, at p 4. -- 26 of 47 -- 27 The evidence of the psychologists Dr Fiona Black and Ms Tamara Smith given on 24 April 2012 [122] Dr Black was asked to assess Mr Austin’s cognitive and personality functioning. Dr Black conducted some screening tests and a preliminary analysis to ascertain if Mr Austin was displaying psychopathic traits and to ascertain if further investigations were required. The specific testing was subsequently conducted by Ms Smith. Ultimately that testing revealed that Mr Austin did not meet the criteria of the Hare Psychopathy Checklist but that he did have some anti-social personality traits and some narcissistic traits. [123] Ms Smith also stated that the assessments revealed that Mr Austin is not malingering, but that he can exaggerate his symptoms at times. In her report dated 24 April 2012, she stated that: “Mr Austin indicated that he acknowledges his lack of openness with mental health professionals and has a propensity to overstate his psychological problems.”66 [124] In her evidence to the Court, Ms Smith stated that ultimately she considered that his exaggeration at times was probably a product of a “lack of insight” rather than “ineffectual effort of malingering.”67 [125] Ms Smith considered that the testing indicated that his aggressive behaviour is more likely to be associated with active psychosis. She stated that there was “no evidence to suggest that he is aggressive when not experiencing psychotic symptoms”.68 She considered that his risk of future violence, however, was high. Ms Smith concluded that his risk to others in the past has arisen from a combination of personality vulnerabilities, his substance abuse and his psychosis. Was Mr Austin suffering from a mental illness at the time of the alleged offences? [126] Section 267 of the Act provides that on the hearing of a Reference to the Mental Health Court the Court is to decide whether the person the subject of the Reference was of unsound mind at the time the alleged offence was committed. The term “unsound mind” is defined in the Schedule of the Act as the state of mental disease or natural mental infirmity as described in s 27 of the Criminal Code Act 1899 (Qld) (the “Criminal Code”). Section 27(1) of the Criminal Code provides that: “a person is not criminally responsible for an act or omission if at the time of doing the act or making the omission the person is in such a state of mental disease or natural mental infirmity as to deprive the person of capacity to understand what the person is doing, or of capacity to control the person’s actions, or of capacity to know that the person ought not do the act.” [127] There is clear evidence that Mr Austin has had a diagnosis of paranoid schizophrenia since at least 2006 for which he has been receiving treatment. There is no doubt that he was suffering from this illness at the time of all of the alleged 66 Report of Ms Tamara Smith, dated 24 April 2012, at p 6 67 T1-40 (24 April 2012), at lines 40-50. 68 T1-41 (24 April 2012), at lines 42-43. -- 27 of 47 -- 28 offences. His history of mental illness is well documented and extensive. His schizophrenic illness has been described as treatment resistant. He has been placed on a variety of medications since 2005 but has never experienced a complete remission of his symptoms. Those symptoms include paranoid and grandiose delusions and also auditory hallucinations, including running commentary hallucinations and command hallucinations at times. There is also evidence that he experiences thought broadcasting and telepathic communication and that Mr Austin’s psychosis is also accompanied by significant behavioural disturbance and deterioration in general functioning. [128] Mr Austin was in the PAH at the time of the alleged assault in 2007 and Mr Austin was under the care of the PAH MITT team and Dr Dark throughout the period of the alleged offences in 2010. He had been admitted to the PAH just six weeks prior to Ms Girven’s death with a relapse of his mental illness and was receiving treatment from Dr Dark and the MITT team at the time. There is no dispute that he was experiencing active symptoms of that illness at the time of Ms Girven’s death. Dr Dark considered that he was clearly psychotic at the time of the offences and that he was experiencing thought broadcasting and was paranoid. [129] Dr Coyle and Dr Morris who both assessed him within weeks of Ms Girven’s death considered that he was clearly psychotic and paranoid. They both noted that he was experiencing auditory hallucinations and that he was fearful of revealing the full extent of his thinking as he believed he would put others at risk. [130] Schizophrenia is clearly a mental illness as defined in s 12 of the Act and constitutes a mental disease as required by s 27 of the Criminal Code. I am therefore satisfied that at the time of all of the alleged offences, Mr Austin was suffering from a state of mental disease. The issue which needs to be determined, however, is whether he was actually of unsound mind at the time of the commission of each of the alleged offences. Was Mr Austin of unsound mind in relation to the charge of common assault on 21 January 2007? [131] In relation to the charges of common assault in the PAH on 21 January 2007, the PAH notes for 21 January 2007 are in evidence. Those notes clearly record the following: “In response to auditory hallucinations Rhys had tied a piece of towel around his room-mate’s neck and attempted to strangle him.”69 [132] The notes indicate that as a result of that behaviour, Mr Austin was placed in seclusion as there was no less restrictive way to ensure the safety of the patient and Mr Austin. The Progress Notes of 21 January 2007 record “derogatory themes about his family yesterday, and separate voices urging him to attack this room mate. Of concern he proceeded to put a towel around his room-mate’s neck before being restrained. Today he describes no continuing hallucinations but is still suspicious about his ex-room mate’s actions of yesterday. Describes no ongoing intent to attack anyone.”70 69 PAH Notes, Seclusion authorised by senior registered nurse, dated 21 January 2007. 70 PAH Progress Notes, dated 21 January 2007. -- 28 of 47 -- 29 [133] The nursing notes also record that Mr Austin admitted to auditory hallucinations and was “anxious and low in mood. Rhys concerned about last night’s events unsure as to whether the ex-room mate had actually spoken about harming his family.”71 [134] On 24 January 2007, the following notation was made: “Continues to experience Aud. Hals. (command) and ideas of reference from TV. Stated the voices have not been of homicidal/suicidal in content in recent days but admitted they have told him to be violent with others/himself in past. Generally challenges them and asks for an explanation as to why he should carry out the command. We talked about how these explanations may seem rational at the time but in hindsight may not be.”72 [135] On 25 January 2007, the nursing notes record that Mr Austin was still hearing voices and he felt scared. They also noted that Mr Austin thought his room mate had been saying things to him and that usually he was able to manage his internal voices. He referred to the fact that his voices were talking to him and had conversations with him. He indicated that some of the voices were commentaries and some were command hallucinations. [136] I consider, therefore, that there is strong corroborative evidence that Mr Austin was experiencing command hallucinations to harm the co-patient at the time of the commission of the alleged offence. I also note that all of the psychiatrists consider that Mr Austin was of unsound mind at the time of the commission of that alleged offence. Counsel for the Director of Public Prosecutions (“DPP”) concedes that there is evidence to support a finding of unsoundness in relation to this offence. [137] Accordingly, I am satisfied that Mr Austin was in fact deprived of the capacity to know he ought not do the act at the time he assaulted his room mate at the PAH and that he was acting in response to command hallucinations. I am satisfied that Mr Austin was of unsound mind at the time of the commission of that alleged offence. Was Mr Austin of unsound mind in relation to the charge of possession of tainted property on 2 April 2010? [138] In relation to the charge of possession of tainted property, it would seem clear that Mr Austin has no memory surrounding the circumstances of that offence and he cannot recall any of the details of it. His response to being told that a stolen phone had been found in his room was to respond that the police must have ‘planted’ it. Accordingly, it is clear that there is no evidence to indicate that Mr Austin accepts these charges. [139] Section 268 of the Act provides that the Court must not make a decision if the Court is satisfied that there is a reasonable doubt that the person committed the alleged offence. The Court may make a decision, however, if the doubt exists only as a consequence of the person’s mental condition. On the current evidence before me there is therefore a reasonable doubt that Mr Austin took the phone as he denies 71 PAH Nursing Notes, dated 21 January 2007. 72 PAH Progress Notes, dated 24 January 2007. -- 29 of 47 -- 30 any knowledge of it. Mr Austin does not accept that he committed that alleged offence and there is no clear evidence that his denial is solely as a result of his mental illness. [140] Dr Voita in her most recent report indicated that Mr Austin continued to be fit for trial and I accept that evidence. The charge of possession of tainted property on 2 April 2010 should therefore proceed according to law. [141] The question then remains as to whether Mr Austin was of unsound mind in relation to the murder charge. Counsel for the DPP submits that there is a fundamental dispute of fact in relation to the charge of murder which means that this Court cannot proceed further to determine this Reference. Is there a s 269 Dispute of Fact in relation to the charge of murder? [142] Counsel for the DPP argues that the true nature of Mr Austin’s delusional system is a fact that is substantially material to the psychiatric opinions. Mr Austin has, however, given varying accounts to the reporting psychiatrists about the nature and extent of his delusional system. Accordingly, Counsel for the DPP submits that the true nature of Mr Austin’s delusional system is in dispute and that it would be unsafe to make a decision as to whether Mr Austin was of unsound mind at the time. Counsel for the DPP argues that the dispute arises under s 269 of the Act which provides as follows: “269 Dispute relating to substantially material fact (1) The Mental Health Court must not make a decision under section 267(1)(a) or (b) if the court is satisfied a fact that is substantially material to the opinion of an expert witness is so in dispute it would be unsafe to make the decision. (2) Without limiting subsection (1), a substantially material fact may be— (a) something that happened before, at the same time as, or after the alleged offence was committed; or (b) something about the person’s past or present medical or psychiatric treatment.” Submission of the Director of Public Prosecutions [143] Counsel for the DPP argues that the material fact in question is the accused’s account of his delusional belief system at the time of the alleged murder as related to Dr Mann and Dr Grant, and to a lesser extent, Dr van de Hoef. Counsel argues that the psychiatric opinions supporting a finding of unsoundness of mind are based on the premise that the accused’s account is accurate. Counsel, however, submits that there is conflicting evidence about Mr Austin’s delusional belief system and that provides a reason to doubt the reliability of Mr Austin’s account. [144] Counsel for the DPP also submits that resolving the factual dispute is not a task for the expert psychiatrists or the Court but rather, for an independent arbiter of fact, namely a jury in a criminal trial. Counsel for the DPP argues that it is open on the evidence to conclude that since the alleged murder, the accused’s delusional belief system has evolved to include a belief that he was compelled to kill which he has now explained to Dr Mann and Dr Grant. That is, therefore, a dispute about a material fact, and triggers the operation of s 269(1) of the Act. -- 30 of 47 -- 31 [145] It is clear that, pursuant to s 26 of the Criminal Code, in a criminal trial the onus is on the accused to prove insanity on the balance of probability, and the defence must sufficiently establish the factual basis that underpins an opinion as to mental disease and deprivation of a relevant capacity. In contrast, s 405 of the Act provides:- “405 Proof of matters (1) In the proceeding, no party bears the onus of proof of any matter. (2) Subject to section 268, a matter to be decided by the Mental Health Court must be decided on the balance of probabilities.” [146] I accept that the position prevailing in the Mental Health Court is in contrast to the position of a jury in a jury trial, or a judge in a judge only trial, where the arbiter of fact is required to resolve issues of fact, governed by the onus and burden of proof. There is no doubt that the Act specifically prohibits the making of a finding of unsoundness of mind if there is a dispute about the factual underpinnings for the psychiatric opinions. [147] Counsel argues that the fundamental premise underlying the opinions supporting a finding of unsoundness of mind in this case is that the version by Mr Austin about his thinking at the time of the offence, particularly as provided to Drs Mann and Grant, was accurate, that is, both credible and reliable. Counsel argues that determining whether that version was accurate is fundamentally a task for an arbiter of fact. It is not the role of the psychiatrist, and the Mental Health Court is prohibited from undertaking that task. [148] Counsel argues that the nature of Mr Austin’s thinking at the time of the alleged offence is a fact in the same way that a person's intent is a fact, and that the accuracy of that version is in dispute in this matter. Counsel argues that there is conflicting evidence from which inferences can be drawn and that there is reason to doubt the reliability of that account which Mr Austin has given. Counsel submits that the accuracy of that account is not a fact to be determined by the psychiatrists, and when it is in dispute, is not to be determined in this Court. [149] Counsel for the DPP submits the role of the Mental Health Court is to resolve differences of opinion between psychiatrists relating to diagnosis (aetiology of the disorder and whether it falls within the concepts of 'disease of the mind' or 'abnormality of the mind') and the level of diminution or deprivation of capacity. It is not the function of the Mental Health Court (or psychiatrists) to resolve disputes of fact about whether a particular factual situation existed at the time of the killing. [150] Counsel for the DPP states that it is not disputed that Mr Austin suffers from a serious mental illness, namely paranoid schizophrenia, or that the onset of the illness was around 2006. He also accepted that at times the illness included delusional beliefs encompassing communications with a computer and auditory hallucinations of a command nature. Counsel states that it is further accepted that since his admission to The Park Centre for Mental Health in March 2011, his delusional belief system has at times seemingly included a belief that he had to kill someone as part of some unspecified purpose. Counsel submits, however, that it is open on the evidence to conclude that Mr Austin’s delusional belief system has evolved since the murder to include a belief that he was compelled to kill. [151] Counsel for the DPP submits that the evidence that is relevant to the proposition that the accused's delusional belief system at the time of the killing did not include -- 31 of 47 -- 32 a purpose or compulsion to kill, and which therefore gives rise to the dispute, includes the following: (a) “the accused initially gave an elaborate false and non-psychotic account of the murder; (b) the false account was upheld through intensive police questioning and sleep deprivation; (c) the first of the accounts on which the reporting psychiatrists base their opinions did not emerge for more than thirteen months after the offence and the version provided to Drs Mann and Grant was given at a time and in circumstances which cast doubt on its reliability; (d) psychiatric assessment shortly after the killing, conducted by an experienced clinician familiar with the accused and his illness, failed to detect evidence of acute psychosis; (e) at no time prior to the murder, including at times during which the patient was hospitalised due to exacerbation of his psychosis, did the accused reveal thoughts to kill or, indeed, much of the complex delusional belief system he first described thirteen months after the murder; (f) the accused exhibits a significant degree of personality disturbance which could give a non-psychotic explanation for the murder; (g) the accused has a demonstrated ability to relate symptoms to his advantage; and (h) the accused has recanted some of the details of the versions on which the reporting psychiatrists rely.”73 [152] Counsel for the DPP also relies on the decision of Dowsett J in Re W74 which was recently referred to by the Court of Appeal in A-G (Qld) v Bosanquet & Ors75 to argue that it is not sufficient for a finding of unsoundness of mind that Mr Austin has a schizophrenic illness and suffered from severe symptoms at the time of the alleged offence as a result. Rather, it must be shown that there was an incapacity or infirmity that actually deprived the accused of a relevant capacity at the time i.e. there must be a nexus between the mental illness and the deprivation of capacity. In that decision, Dowsett J rejected the approach of considering whether the disease was sufficiently severe as to deprive the accused of a capacity. Counsel submits that to establish the nexus between the mental illness at the time and a deprivation of a capacity, it is necessary to rely on the accuracy of the accused's version to Drs Mann and Grant. Counsel argues that the reporting psychiatrists have either assumed or concluded that accuracy when that factual issue is actually in dispute. It is therefore submitted that the Court is prohibited from making a decision. [153] Counsel for the DPP argues that the evidence of Mr Austin’s ability to concoct a false story immediately after the killing, and maintain it throughout stressful police questioning over an extended period of time, raises the inference that the accused was not in an acutely psychotic state at the time of the murder and was aware of the wrongness of his actions. Counsel for the DPP argues that cross-examination to the effect that it was not a very convincing story only highlights that there is a factual issue to be determined. 73 Submissions of the Director of Public Prosecutions, dated 21 March 2013, at pp 6-7. 74 Unreported, Mental Health Tribunal, Dowsett J, 14 October 1997. 75 [2012] QCA 367. -- 32 of 47 -- 33 [154] Counsel for the DPP also argues that a factor which must be taken into account is whether the version given to Drs Mann and Grant is accurate in circumstances where the version was first given 13 months after the killing and at a time when Mr Austin was unwell. [155] Counsel points out that there is no doubt that Mr Austin’s mental state deteriorated after the killing and subsequently, and it is therefore possible that his account to Drs Mann and Grant was a result, at least in part, of delusional thinking. In particular, counsel points out that the extensive medical records do not document a delusional belief system of the complexity described by Mr Austin to Dr Mann and subsequent clinicians. Counsel points out that the review of the clinical records does not indicate any mention of a mission from God even at times when Mr Austin was freely disclosing other symptoms. He did not reveal these views until he saw Drs Grant and Mann many months after the murder. [156] Counsel for the DPP also argues that the opinions of Dr Grant and Dr Mann rely heavily on Mr Austin’s self-report of a history of homicidal impulses dating back to 2006. Counsel for the DPP argues that, at the time of the attack in the PAH, he reported thoughts that his co-patient was saying derogatory things about his family, but that he did not disclose any psychotic belief that would indicate the assault was other than in response to derogatory remarks. [157] Counsel argues that there are two incidents for which there is independent evidence, namely, the assault on his co-patient and the holding of a knife against Bianca’s throat. Counsel argues that on neither occasion did Mr Austin report delusional beliefs other than paranoid thoughts of the victims talking about him or his family. Counsel concludes that those incidents are consistent with his well documented paranoia and delusions of persecution and that therefore the systematised delusional belief system involving a purpose to kill was a later construct applied retrospectively. The Advice of Assisting Psychiatrists Dr McVie’s advice [158] Dr McVie advised that all the clinical information indicates that Mr Austin suffers with a severe chronic schizophrenic illness, possibly from as early as 15 years of age. She stated that the illness was certainly present from 2006 when he was first admitted to the Toowong Private Hospital. The symptoms of his illness include auditory hallucinations, bizarre delusions, persecutory delusions and odd beliefs about computers and conspiracy. Dr McVie noted that the early phases of Mr Austin’s illness were complicated by non-compliance with medication and substance abuse, in particular amphetamines. [159] Dr McVie referred to the fact that in 2008, Mr Austin was previously before the Mental Health Court with respect to charges which included robbery with violence and deprivation of liberty. He was found to be of unsound mind then due to his paranoid schizophrenia and was placed on a Forensic Order. Dr McVie noted that the order was managed by the PAH and was revoked in August 2009, some months prior to the murder of Ms Girven. [160] Dr McVie advised that the reports indicate that Mr Austin suffered with chronic low-grade symptoms of his psychosis throughout the whole period he was treated -- 33 of 47 -- 34 at the PAH and that the information is clear on review of the medical records. She noted that when he was assessed the day after the killing by Dr Dark, she did not find any evidence of any exacerbation in his symptoms and he was not admitted. Subsequently, he had two following admissions to the PAH during which he was given various treatments and was recorded as having some mild exacerbation of symptoms. Dr McVie indicated that one of the earliest psychiatric reports was done by Dr Philip Morris in April 2010 and that Dr Morris noted several symptoms of psychosis were present. Dr Morris recorded that Mr Austin told him that Bianca had to die because of something that she knew. Dr McVie stated that this was the clearest evidence that there may well have been a psychotic motive or a psychotic reason for his actions on that evening. [161] Dr McVie advised that Mr Austin’s contrived account of what had happened on that evening and the superficial injury he inflicted on himself to support his story is unusual as is the fact he maintained this story for nearly 12 months. She noted, however, that all the reports currently, including the updated reports, offer Mr Austin a defence of unsoundness of mind based on his psychosis at the time and all consider that he was deprived of the capacity to know that he ought not do the act for all of the offences. [162] Dr McVie advised that Dr van de Hoef's report is perhaps the most considered in her approach to a final conclusion which she has maintained despite her concerns, particularly in relation to the contrived story for which she could find no psychotic basis or understanding of in terms of Mr Austin's psychotic symptoms. Dr McVie noted that Mr Austin has given various accounts of his reasoning for his commission of the offence, including acting on command hallucinations or acting on the orders of the computer god and having to respond to what the god had told him to do. She considered however that those varying accounts depend on the level of his psychosis. [163] Dr McVie advised that there is no real dispute in terms of a s 269 dispute, as all the reporting psychiatrists have advised there is no doubt that he has a serious illness and his versions and his identification of symptoms vary depending on the level of his psychosis and the level of his insight. Dr McVie stated that even when he is relatively well and only has background psychotic symptoms, it is clear that he has almost no insight into the nature of his psychotic symptoms and tends to discount them or consider them to be something other than the psychotic illness. Dr McVie considered that Mr Austin’s lack of insight into the nature of his symptoms is probably one of the factors which resulted in his not giving a clear account of his thinking at the time of the murder. [164] Dr McVie also advised that given the timing of the murder and the timing of when he finally gave a clearer account to Dr Mann and Dr Grant in May 2011, it is most likely that his memory of what actually happened and what symptoms he actually had at the time had been affected by time and by subsequent deterioration in his illness. She also noted his past history of violence and an interest in knives. On at least two occasions he has threatened others with knives, the first being reported by his treating psychiatrist back in 2006. [165] Dr McVie noted in particular the concerns raised in the evidence about Mr Austin’s probable psychopathic traits and that Dr van de Hoef has concerns that some of his violent interests and violent fantasies may not necessarily be part of his psychosis. In descriptions of his psychosis, Dr McVie was also concerned about an -- 34 of 47 -- 35 entry in 2010 in his PAH notes which talks about his symptoms being egosyntonic. Dr McVie’s advice was that when a person with psychosis has egosyntonic psychotic symptoms, they like the voices, they enjoy them and that makes them less likely to want to report these symptoms and less likely to be compliant with treatment. It also increases his risk. [166] Overall, Dr McVie’s advice was to accept the clear opinions of all the reporting psychiatrists that Mr Austin was suffering a psychotic illness sufficiently severe to deprive him of the capacity to know that he ought not do the act certainly at the time of the murder of Ms Girven. She also advised that, in relation to the common assault charge in 2007, there was clear evidence that there was psychotic persecutory ideation associated with that assault, and he was deprived the capacity to know for that offence as well. Dr Varghese’s advice [167] Dr Varghese advised that there is no dispute between the psychiatrists and psychologists who have given evidence and the clinicians who have previously seen Mr Austin in relation to their diagnosis of schizophrenia. Dr Varghese indicated that the clinical evidence from the extensive documentation reports and oral evidence is that Mr Austin has had schizophrenia since his late teens, manifesting predominantly with paranoid and grandiose delusions and also auditory hallucinations, including running commentary hallucinations at times, and command hallucinations on other occasions. Dr Varghese also referred to the reports of thought broadcast, thought alienation, telepathic communication and thought insertion. Dr Varghese noted that Mr Austin’s psychosis is also accompanied by significant behavioural disturbance and deterioration in academic performance, general functioning and accompanied by affective blunting. [168] Dr Varghese noted that Mr Austin’s schizophrenia has been associated with polysubstance abuse and this is likely to have played a part in the early onset, but the evidence is not that this is a pure drug-induced psychosis, although his drug- induced state may have exacerbated psychosis at different times. Dr Varghese advised that at the material time, there is no indication that any intoxication was present. [169] Dr Varghese indicated that Mr Austin’s schizophrenia has been poorly responsive to treatment and that it has been described as treatment resistant. He considered that whilst the psychosis has waxed and waned over time, it appeared that Mr Austin was never in full remission from positive psychotic symptoms for any substantial and sustained period of time, partly because of the inherent nature of the illness but also due to issues to do with treatment endurance and polysubstance abuse. [170] Dr Varghese also advised that it is significant that Mr Austin’s schizophrenia, whether in a relationship to psychosis or other factors, such as personality, has been accompanied by an urge to violence and an urge to kill leading to at least two episodes of violence. He noted that the charge of assault in 2007 appears to have been in response to some delusional thinking and auditory hallucinations as well as the index offence of murder. Dr Varghese advised that the question of whether there is an urge to kill independent of the psychosis and indicative of psychopathy, as submitted by the DPP, is a question that is probably not currently answerable on the data available. -- 35 of 47 -- 36 [171] Dr Varghese advised that much has been said about personality issues with respect to Mr Austin but advised the Court that in general, the psychiatrists who gave evidence have taken the approach that the schizophrenia is the principal issue, and given the impact of schizophrenia on personality and behaviour, the issue of personality disorder is redundant. Dr Varghese stated that Dr van de Hoef has drawn attention to this strongly, as discussed by Dr McVie. [172] Overall, in this case, Dr Varghese advised that whilst the diagnosis of personality disorder may be redundant in view of the schizophrenia, he considered that the underlying personality is of some importance in understanding how a person with schizophrenia responds to psychotic symptoms, why there may be concealment of symptoms, and why there may be deception. Dr Varghese also advised that importantly, the personality issues may determine treatment and issues of risk. [173] Dr Varghese advised that the data available indicates that Mr Austin’s urge to kill is egosyntonic, which means that is it is not something that bothered him. Dr Varghese noted that Mr Austin is not troubled by his urges nor does he complain or seek amelioration of his symptoms. Dr Varghese advised that this lack of concern by Mr Austin may be indicative of a degree of psychopathy, but it may also explain why he does not reveal the phenomena to others including psychiatrists and is clever enough to know the consequences of revealing such disturbing psychotic phenomena. [174] Dr Varghese’s advice is that there is indeed a significant degree of personality disturbance present, which could be called psychopathy, and that in addition there is psychosis grafted on which, in his view, is a fairly dangerous combination. [175] Dr Varghese advised that on the basis of the evidence of Dr Mann and Dr Grant at the time of the killing, Mr Austin was suffering from delusions within a complex delusional system as well as from other psychotic symptoms such that he was deprived of the capacity to know the wrongness of the act and perhaps the mental component of control. Dr Varghese advised that that would also be the case if the symptoms described to Dr van de Hoef were present at the time. Dr Varghese noted that although Dr van de Hoef did not obtain the full flavour of the psychosis as per Drs Mann and Grant, there are some similarities including Mr Austin’s belief that he had to do the act despite knowing the consequences and his experience of the victim in some way consenting perhaps to the act which is described by Dr Grant. [176] In relation to the question of whether the psychosis was present at the time of the killing or something that developed later, or even whether it is a concoction, Dr Varghese’s advice is that it is unlikely that it could be concocted as the symptoms Mr Austin describes are “very typical of schizophrenia even though there are highly individualistic elements”.76 His advice was that they would not be concocted unless somebody was well read in the phenomenology of schizophrenia. [177] Dr Varghese advised that the evidence of Dr Dark is central in this case, as she saw Mr Austin shortly after the killing and had been the treating psychiatrist for some time. Dr Varghese noted that Dr Dark accepted that he had some psychotic symptoms during her treatment, and the treatment was directed towards those. Dr Varghese also noted that Dr Dark did not consider that the symptoms were 76 T1-8 (6 February 2013), at lines 13-14. -- 36 of 47 -- 37 florid nor of the nature described to other psychiatrists some months later. Dr Varghese advised, however, that whilst the opinion of a treating psychiatrist, such as Dr Dark, is valuable, such an opinion may not always be the most reliable given the nature of the doctor/patient relationship, particularly if it involves psychotherapy. Dr Varghese advised that in psychotherapy the discussion between doctor and patient is at a different plane than the standard psychiatric evaluation. Dr Varghese stated that Dr Dark was engaged in a psychotherapeutic approach, including the management of psychotic symptoms including delusions and accordingly, it would be expected that psychotic symptoms would be explored and strategies would be discussed to cope with them. However, Dr Varghese considered that it was significant that Dr Dark was not aware of the previous acts of violence or of the psychotic phenomena that may have been operating at that time. [178] Dr Varghese advised that if Dr Dark was not aware of the urge to violence or the psychosis that gives rise to that, it is unlikely that she could have explored the phenomena or the homicidal urges. Dr Varghese’s advice was that the fact that Dr Dark's notes do not indicate the presence of delusions or other phenomena of the types described by Drs Mann and Grant, and to some extent by Dr van de Hoef, does not negate that they were present. Dr Varghese advised that: “Delusional patients, not uncommonly, keep their core phenomena secret and give little indication of their thinking even to treating psychiatrists for various reasons. These may include that the delusions are – and the other psychotic phenomena are of a horrendous nature that are difficult to discuss, the delusions may include that there (sic) are not to be revealed to anyone, and the patient may be aware of the consequences of revealing delusions such as enforced treatment, admission to hospital and thwarting of their actions stemming from delusions”.77 [179] Dr Varghese noted Dr Dark’s recorded interview was not a forensic interview and that Dr Dark had regarded Mr Austin’s initial false account as being plausible and accepted that he was in a state of grief and was traumatised by the events he alleged. Dr Varghese advised that a forensic interview would have brought a high degree of scepticism about what the patient said and suspension of any sympathy or feeling for the patient. Dr Varghese advised therefore that the interview could not be relied upon but in any event he noted that Dr Dark has since changed her opinion and now considers that Mr Austin was psychotic at the time and probably deprived of capacity. He also considered that if there had been no acceptance of a criminal act by Mr Austin at the time of the initial interview, it is difficult to ascertain what act Dr Dark was assessing in her initial interview when she concluded he was not deprived of any of the capacities. [180] Dr Varghese advised that at the time of the killing, Mr Austin was in a state of mental disease, namely schizophrenia, fulfilling the first limb of the defence of unsoundness of mind, and that he was psychotic at the time with the delusions and other phenomena as described by Dr Mann, Dr Grant and Dr van de Hoef. He considered that Mr Austin was deprived of the capacity of the mental component of control in that he was overwhelmed by delusional thinking, and perhaps other phenomena which may have included the delusion or delusion-like idea that the killing was consensual.78 77 T1-8 (6 February 2013), at lines 51-58 to T1-9, at lines 1-2. 78 T1-9 (6 February 2013), at lines 34-43. -- 37 of 47 -- 38 [181] In relation to the question of the wrongness of the act, Dr Varghese considered that Mr Austin was aware of the wrongness of the act in his account, but that it was not wrong within his delusional system. He was clearly aware that his actions were contrary to law and also aware of the consequences of the actions as one could judge from his behaviour afterwards. He considered, however, that if he was indeed in a state of delusion as described by the psychiatrists and this was overwhelming, then despite that knowledge of the illegality of his act, it is difficult to see how there could be a moderate degree of composure in judging on his behaviour. [182] Dr Varghese did not consider that there was a s 269 dispute of fact in relation to whether or not Mr Austin’s actions were a response to command hallucinations and stated that he agreed with the evaluating psychiatrists’ general response as to why Mr Austin may have given different accounts at various times. Dr Varghese also advised that there may have been an overemphasis on command auditory hallucinations as an explanation for the killing. Dr Varghese advised: “This approach, is, in my view, atomistic; that is, the motion that a psychotic person's behaviour can be determined by a particular and singular phenomenon. It seems to me that the total context of the defendant's mental experiences and beliefs at the time were of greater importance than whether he was responding to a particular isolated phenomena or symptom. A schizophrenic individual does not respond to command hallucinations because they are commands. One can authoritatively command people with schizophrenia to do things, such as stay in the ward, take their medication, adhere to treatment, all of which they quite frequently refuse to do. The command auditory hallucination has a particular quality for the person with schizophrenia, and more importantly has a particular meaning and it's the meaning which is delusional. While command auditory hallucinations can give rise to delusions, more often than not they occur in the context of delusion or a delusional system. It seems to me that the delusional system that dominated the defendant's thinking as described by the psychiatrists' reports is of much greater importance than whether command auditory hallucinations or other particular phenomena were present at the time. My advice is that the deprivation of capacity arises from an elaborate delusional system such that the killing of the victim was an act that served some higher delusional purpose and may have in some been consensual rather than a response to a particular command. Even though the defendant was aware his actions were contrary to law and subsequently to sought to displace the crime onto others and conceal his role, his actions were determined on the clinical evidence available by a then concealed delusional system. It seems that the defendant may have expected on some of the clinical evidence presented, that something extraordinary would happen as a result of the killing, and then when this did not occur sought to conceal his role. Referring here to the evidence of Dr Grant. -- 38 of 47 -- 39 My advice, your Honour, is that it is immaterial whether or not there was command auditory hallucination if one accepts that the defendant was in a concealed delusional state as described by the psychiatrists who evaluated him. That reiterates my advice that the defendant was of unsound mind with deprivation of capacity for knowing the wrongness of the act and perhaps of the capacity for the mental point of control.”79 [183] Dr Varghese stated that if Mr Austin is not found to be of unsound mind, then it seems to him that the criteria for diminished responsibility are met and that there is an abnormality of mind, namely schizophrenia, arising from inherent factors that would substantially impair at least two of the capacities as described. Conclusion [184] Is there a s 269 dispute in the present case which precludes the Court from determining this Reference? [185] The relevant principles were discussed in the decision of R v Schafferius80 where the Court of Criminal Appeal held that in relation to the 1974 Mental Health Act, there was “no warrant for application of a standard of proof beyond reasonable doubt” but a finding of unsoundness should only be made in reliance on “clear and convincing evidence, and upon a clear satisfaction consistent with the gravity of the proceeding”.81 The Court also noted that quite often the precise details of the alleged crime will be critical to the assessment of the alleged offender’s mental condition at the relevant time and held that “if those details are in any way in dispute the only way to resolve them is by the adversarial scrutiny of a criminal trial before a jury”.82 [186] The Court made it clear that the relevant opinion as to whether the facts were in dispute involved an assessment of degree namely whether those facts were “so in dispute that it would be unsafe”83 and that that question was a question for this Court to determine. In R v Schafferius the evidence which was said to place the facts in dispute was the statement of the defendant that he knew at the time that he should not have done what he did. The Court indicated that the evidence was “the evidence of a man whom all the medical evidence shows to be severely affected by delusions”.84 The Court continued: “There was no issue as to the objective facts such as the facts concerning the commission of the offence or as to the history upon which the psychiatric assessments were made. In the circumstances the mere say-so of the appellant as to his state of mind at the material time was not such a circumstance as to oblige the Tribunal to form the opinion that the facts were so in dispute that it would be unsafe to proceed.”85 79 T1-10 (6 February 2013), at lines 13-58 and T1-11, at lines 2-5. 80 [1987] 1 Qd R 381. 81 [1987] 1 Qd R 381, at 381, lines 30-33. 82 [1987] 1 Qd R 381, at 381, lines 41-43. 83 [1987] 1 Qd R 381, at 381, lines 34-35. 84 [1987] 1 Qd R 381, at 384, lines 24-25. 85 [1987] 1 Qd R 381, at 384, lines 28-33. -- 39 of 47 -- 40 [187] There is no dispute that Mr Austin accepts that he did the acts which caused Ms Girven’s death. The real issue in this case is whether his mental illness which was clearly in existence at the time he did those acts which killed her, was of such a degree that he was actually deprived of the capacity to understand what he was doing, the capacity to control his actions or the capacity to know he ought not do the act which caused her death. [188] There is no dispute that Mr Austin experiences a complex delusional system and that he has explained that delusional system to all of the reporting psychiatrists. He has, however, explained that delusional system more fully to some of the psychiatrists than to others. Counsel for the DPP essentially argues that because the delusional system has not been explained by Mr Austin to all the psychiatrists to the same degree, there is a dispute of fact which precludes this Court from proceeding to determine the Reference. [189] In particular, Counsel for the DPP relies upon the eight bases outlined in paragraph [151] of these reasons to argue that there is a dispute of fact. The first basis is that Mr Austin gave an elaborate and non psychotic account of the murder and the second basis is that he was able to sustain that account under intense scrutiny. [190] There is no doubt that Mr Austin gave a false account to police and to at least three psychiatrists that unknown assailants were responsible for the attack on Ms Girven. It is clear that Mr Austin now accepts that he did the acts which resulted in Ms Girven’s death and he has explained what occurred on the night. He is not now disputing the facts surrounding her death and the role he played in her death. I also note Dr van de Hoef’s concern that the false account was not actually psychotically driven. [191] In this regard, however, I accept the advice of Dr Varghese, which is substantially in agreement with Dr Grant’s view that such a false account does not detract from the deprivation of capacities. He considers that the concocted alibi was given in order to explain Mr Austin’s actions, but at the same time he believed his actions were justified and necessary as a result of his psychotic symptomatology. I accept the advice that such behaviour is not uncommon in psychotic crimes, where there is some awareness of the illegality of the actions but an absence of moral capacity. [192] All of the reporting psychiatrists and both the assisting psychiatrists concur that Mr Austin’s symptoms never completely disappear and those residual symptoms include auditory hallucinations. It is also clear that Mr Austin has limited insight into his illness but that his insight does improve at times. I also note that Mr Austin has been objectively assessed by psychologist Tamara Smith as not being completely open with health professionals. There is also clear evidence that at times Mr Austin conceals his delusional system. [193] There is no doubt from the contemporaneous reports that Mr Austin was keeping the full extent of his symptoms and thinking secret for fear he would put others at risk. I consider that it is significant that the concealment of the full extent of his delusional thinking has a psychotic basis. In this regard, I note that the medical records indicate that in the interviews with Dr Dark on 1 April 2010, Dr Coyle on 9 April 2010 and Dr Morris on 20 April 2010, Mr Austin refused to reveal the full extent of his conversations with Ms Girven for fear those doctors would also be put at “risk”. He also consistently indicated that Ms Girven had been killed because of what he had told her. There is therefore very clear, contemporaneous, documented evidence that Mr Austin was suffering from significant psychotic symptoms at the -- 40 of 47 -- 41 time he did the act on the evening of 30 March 2010 which killed Ms Girven. Those symptoms were clearly observed by Dr Dark, Dr Coyle and Dr Morris. [194] Despite Mr Austin’s false account of unknown assailants there is also very clear evidence that Mr Austin indicated from the outset that Ms Girven had died because of what he had told her. There is also consistent, contemporaneous evidence that Mr Austin was having a lot of telepathic conversations with Ms Girven during the afternoon and evening of the murder. Mr Austin also clearly indicated at the time that he was experiencing thought insertion and telepathic communications. [195] I also note that the PAH notes on 6 April 2010 include three entries of particular relevance. It is not possible, however, to ascertain in what order they were made. There is a ward round notation made by Drs Foley/Mobsby on that day indicating that his “voices are different from usual” and include a note recording that Austin “felt something was going to happen”.86 The note continues: “Pt has a theory about cause of Bianca’s death – says he told her certain valuable information that got her killed. Says he can’t tell treating team because it could endanger our lives. Told Bianca this information just before she died, thinking this information might help her and pt. Pt says its possible that this info is suspicious and sinister. Pt states his voices are the same as usual – occur most of the day and not particularly distressing. Feels that TV and radio are telling him what to do. Denies passivity phenomena.”87 [196] In the week following Ms Girven’s death I note in particular an entry in a document called a Request for Assessment in the PAH file which is dated 6 April 2010 and signed by Dr Dan Conlon which states: “Austin has indicated the possibility that he has killed his girlfriend during interviews with psychiatric staff today and has indicated suicidal thinking during these interviews”.88 [197] The nursing notes on 18 April 2010 also record a note by registered nurse Tobin that “Rhys enquired whether it was possible for another person to control his thoughts and actions though would not elaborate on specifics.”89 Psychiatrist, Dr Philip Morris, saw Mr Austin on 20 April 2010 and considered that he was suffering from “paranoid delusions” and stated that Mr Austin expressed a view that the “doctors are working for the police”.90 He considered that there were both olfactory and auditory hallucinations. [198] I am therefore satisfied that there is clear evidence of the extent of Mr Austin’s psychotic thinking at the time of the killing and that the psychotic thinking was clearly linked to Ms Girven’s death and the reason for her death. [199] The third basis of the argument by Counsel for the DPP that there is a dispute of fact is Mr Austin’s failure to reveal the full account of the killing until 13 months after Ms Girven’s death when he revealed to Dr Mann and subsequently to the 86 Extract of Volume 6 of Records of PAH, at p 96. 87 Ibid, at p 97. 88 Ibid, at p 106. 89 Ibid, at p 156. 90 Report of Dr Morris, dated 29 April 2010, at p 5. -- 41 of 47 -- 42 reporting psychiatrists that he had killed Ms Girven. It was at that stage that he revealed that he had held a belief that he had to carry out a killing and that he felt obliged to carry out such an act and was in fact urged to do so by auditory hallucinations. He told the psychiatrists that he was directed to do so by God. In terms of his understanding of God, he stated that God was a computer who broadcasts thoughts into his head. When asked by Dr Mann why he had covered up his actions, he told Dr Mann that he had thoughts of admitting it but that he was not ready to admit it. [200] As I have already indicated, I consider that Mr Austin’s paranoid and psychotic thinking also led to a concealment of his full delusional state. Furthermore there is clear evidence that Mr Austin and the staff were specifically instructed not to discuss the events or his thinking around the time of the killing. The PAH notes on 6 April 2010 record an instruction given that day that “Staff to avoid discussing details around the event”.91 The PAH notes on 22 April 2010 also record the fact that Mr Austin told staff that he had been “advised by solicitor to avoid discussing his girlfriend” with them.92 Dr Morris in his report also expressed the view that “Further intensive interrogation of him while he remains psychotic and emotionally disturbed would limit the reliability of any interview he gave at the time.”93 [201] Accordingly, there is clear evidence that the hospital records in early April indicate that Mr Austin was expressly advised by both his solicitor and Dr Morris not to give a full account of his thinking. There was also a recorded direction to staff at the PAH within days of his admission in early April not to ask questions of him about the incident. There is also no doubt that he failed to disclose his thinking due to fear about the consequences to others if he revealed his thinking. Given that the revelation of his thinking to Ms Girven meant that he thought that she had to die, such a view is not surprising. It is clear that there is an early revelation on 6 April 2010 that he thought he may have killed his girlfriend but there was no recorded follow up of that revelation. [202] In my view, the length of time Mr Austin took to reveal his true delusional state is not surprising given that background as well as the time it took for his illness to respond to treatment. [203] Counsel for the DPP’s fourth ground is that the psychiatric assessment by Dr Dark shortly after the killing failed to detect acute psychosis. In this regard I accept Dr Varghese’s advice that the assessment that Dr Dark’s undertook did not in fact have the scepticism of a forensic assessment and accordingly I consider that whilst it was a significant assessment it should not have the status of a forensic assessment. I also note that Dr Dark’s current view is that Mr Austin did not share the full extent of his psychotic phenomena at the time of the alleged offence due to his mental illness. [204] All the contemporaneous psychiatric assessments in April 2010 conclude that he was undisputedly psychotic. I also accept Dr McVie’s advice that the variety of Mr Austin’s accounts and any inconsistencies are related to the nature of his illness and the variation in the intensity of his symptoms. The clear advice is that his versions and his identification of symptoms are related to the level of his psychosis and his level of insight. 91 Ibid, at p 94. 92 Extract of Volume 6 of Records of PAH, at p 177. 93 Report of Dr Morris, dated 29 April 2010, at p 6. -- 42 of 47 -- 43 [205] The fifth ground is that at no time prior to the murder did Mr Austin reveal thoughts to kill. All the reporting psychiatrists have advised there is no doubt that Mr Austin has a serious illness and the evidence is that his versions and his identification of symptoms vary depending on the level of his psychosis and the level of his insight. All of the reporting psychiatrists indicate that whilst he was clearly psychotic, the ‘full flavour’ of that thinking was not able to be accessed when he was acutely unwell. There is also no doubt that Mr Austin was fearful of revealing his thinking as he initially believed that people would be killed if he revealed the full account of his thinking. He also indicated that Ms Girven had been killed because of something he had told her. [206] Counsel for the DPP also argues that there needs to be a clear nexus between the delusional thinking and the actions of Mr Austin in killing Ms Girven. He argues that evidence of the presence of clear command hallucinations at the time Mr Austin strangled Ms Girven would indicate such a nexus and the inability to be certain that such command hallucinations were present indicates a fundamental dispute of fact. [207] In this regard, however, I note the evidence of Dr Grant that such an approach would represent a simplistic view of his motivations for the offence and he stressed that in his view the offence arose from “a very complex psychotic mental state of which auditory hallucinations of a command type were only one aspect”.94 Dr Varghese also advised that it is immaterial whether there were command auditory hallucinations, if it is accepted that Mr Austin was in a concealed delusional state as described by the psychiatrists who evaluated him. [208] Dr Varghese also advised that the delusional system that dominated Mr Austin’s thinking, as described by the psychiatrists' reports, is of much greater importance than whether command auditory hallucinations or other particular phenomena were present at the time. He stated that whilst a command auditory hallucination has a particular quality for the person with schizophrenia, more importantly, such a command has a particular meaning and it is the meaning which is delusional. He advised that, while command auditory hallucinations can give rise to delusions, more often than not they occur in the context of delusion or a delusional system. [209] Dr Varghese indicated that the deprivation of capacity arises from an elaborate delusional system such that the killing of the victim was an act that served some higher delusional purpose and may have in some way been consensual rather than a response to a particular command. [210] I do not consider that Mr Austin’s failure to give an account of command hallucinations, his thoughts to kill or a full account of his delusional thinking due to his paranoid and psychotic state amounts to a dispute of fact when there is clear evidence of his psychotic thinking and its link to Ms Girven’s death. [211] The sixth ground is that Mr Austin exhibits a significant degree of personality disturbance which could give a non-psychotic explanation to the murder. I do not consider that there is sufficient evidence to support such an assertion particularly given Dr Dark’s view in this regard. In any event I accept the evidence that there is a psychotic explanation for the murder. 94 Report of Dr Grant, dated 12 January 2013, at p 2. -- 43 of 47 -- 44 [212] The seventh ground is that Mr Austin has an ability to relate symptoms to his advantage. Significantly, however, there is clear evidence that he conceals his symptoms and has been objectively assessed on the assessment tools to possess this characteristic. [213] The eighth ground is that Mr Austin has recanted some of the details of the versions on which the reporting psychiatrists rely. Whilst I note that Mr Austin told Dr Voita during an interview in November 2012 that he believed that it was his own thoughts that told him to kill his girlfriend, it is clear that Dr Voita considered that he was thought disordered at the time, and that as the interview progressed his thought disorder became more prominent. Dr Voita also noted that in the interview, Mr Austin described having had thoughts in the past about killing and about communicating with the computer and getting instructions and advice about how he might go about this. Dr Voita also recorded Mr Austin’s concern that he may not have explained these thoughts properly to other psychiatrists. She considered that he was exhibiting remorse and that he believed that he should be punished. [214] Consistent with the reasoning in R v Schafferius,95 I accept that his view was given whilst clearly delusional and is not determinative of the question before this Court. Dr Voita made it very clear in her report and in her evidence that those revelations occurred in the context of the deterioration in his mental state, the development of a depressive illness and his poor insight into his psychotic illness. She also considered that the revelations were manifestations of the difficulties Mr Austin has in expressing and explaining his psychotic symptoms and experiences when he is unwell. She was firmly of the view that there was no s 269 dispute. [215] I do not consider therefore that there is any fact which is substantially material to the opinion of an expert which is so in dispute that this Court is precluded from determining the Reference. I do not consider that there is a s 269 dispute of facts in the present case. I do not consider that the account that Mr Austin has given to the various psychiatrists is so in dispute that the Court is unable to proceed to determine the Reference. I consider that there is clear evidence that Mr Austin was in a concealed delusional state at the time of the killing. There is no dispute about that fact. [216] I accept that the extent to which he has revealed that delusional state to the various psychiatrists does, however, vary. In my view, that is clearly a product of his mental illness and particularly a product of the extent to which his paranoia is operating at the relevant time as well as the level of his insight into his illness which is variable. [217] I note that none of the reporting psychiatrists consider that there is any fact that is substantially material to their opinion which is so in dispute that it would be unsafe to make a decision. Neither do the assisting psychiatrists consider that there is a dispute of fact in the circumstances of this case. [218] In my view, there is indeed clear evidence that Mr Austin killed Ms Girven whilst in a delusional state and that he considered that the killing served a higher delusional purpose. I consider that it is indeed the total context of Mr Austin’s 95 [1987] 1 Qd R 381. -- 44 of 47 -- 45 mental experiences and beliefs at the time of the killing which is relevant, and not whether he was responding to a particular isolated phenomena or symptom. The evidence indicates that Mr Austin killed Ms Girven whilst suffering from delusions and other phenomena within a complex delusional system and that he was overwhelmed by that delusional thinking. [219] I am therefore satisfied that Mr Austin was deprived of the capacity to know that he ought not do the act as within his delusional system it was not wrong to do the act as he considered that Ms Girven in fact consented. I do not consider that there was any ability to consider whether he should do the act with a degree of sense and composure. Furthermore, I am satisfied in accordance with the reasoning in Re W96 that Mr Austin was in fact deprived of the relevant capacity due to his mental illness and not simply that his illness was ‘sufficient’ to deprive him of capacity. [220] I am therefore satisfied that Mr Austin was of unsound mind at the time he did the acts on 30 March 2010 which resulted in Ms Girven’s death on 31 March 2010. Is a Forensic Order required? [221] Dr Voita considered that if Mr Austin was found to be of unsound mind or unfit for trial by the Mental Health Court, he should be placed on a Forensic Order given the severity of his illness, his ongoing treatment needs and the significant risk issues when he is unwell. [222] Dr Voita stated that if Mr Austin is placed on a Forensic Order by the Mental Health Court, she did not recommend any Limited Community Treatment at this time. At the time of her report, he had experienced a relapse of his psychotic illness, schizophrenia, and developed a major depressive disorder which she considered significantly increased his risk of violence and self harm. The relapse of his illness appears to have occurred in the context of a number of stressors including ongoing postponement of Mental Health Court proceedings. [223] Dr Voita considered that in view of his severe symptoms which include command hallucinations from God to kill, his substantial lack of insight, his marked propensity to conceal symptoms and the extreme seriousness of the index offence and assault charges, Mr Austin should continue to receive treatment in High Secure, The Park, Wacol, being subject to a Forensic Order (SNFP). [224] Dr McVie advises that a Forensic Order is indicated in this case. She considers that Mr Austin needs continuing inpatient management at the High Secure Service. Her advice is that in view of the fluctuating nature of his mental state over the past 12 months, it is likely that he will need a very lengthy admission. She would be very concerned about him having Limited Community Treatment in the future in the absence of very close medical follow-up. [225] Dr Varghese indicated that if Mr Austin was found to be of unsound mind, then his advice mirrors that of Dr McVie that a Forensic Order is indicated. He further advised that given his current mental state, there is no indication for Limited Community Treatment and that his management under a Forensic Order needs to be carried out with great care given the issue of dangerousness. 96 Unreported, Mental Health Tribunal, Dowsett J, 14 October 1997, at pp 14-15. -- 45 of 47 -- 46 [226] Dr Varghese drew attention again to the combination of schizophrenia with delusional thinking involving violence and fantasies together with the personality factors. He also advised that it may well be the case that Mr Austin still has ongoing delusions with respect to the need to carry out certain actions in order to achieve some delusional goal. [227] Dr Varghese considered that what is particularly worrying about Mr Austin is that he is able to conceal his delusional system from others, including experienced psychiatrists. I accept his advice that deciding when Mr Austin may be eligible for Limited Community Treatment will be a “very formidable task that needs to be carried out with care” and “maximum scepticism”. [228] Section 288 of the Act provides that if the Court decides that a person charged with an indictable offence was of unsound mind at the time of the alleged offence then the Court may make an order (Forensic Order) for that person to be detained for involuntary treatment or care. Section 288(4) then sets out the criteria for making a Forensic Order and requires the Court to have regard to the following; (a) the seriousness of the offence (b) the person’s treatment or care needs (c) the protection of the community [229] The offence of murder is the most serious offence in the Criminal Code and the circumstances surrounding Mr Girven’s death are extremely worrying and concerning. A young, vibrant 22 year old woman just beginning her life has been killed in a brutal and traumatic way. The material which has been submitted by he family pursuant to s 284 of the Act sets out the enormous consequences Mr Austin’s action have had and will continue to have on Ms Girven’s family. There is no doubt that therefore that the first criterion has been satisfied. [230] There is no doubt that Mr Austin has extensive and complex treatment needs. As all of the psychiatrists point out Mr Austin has a severe, treatment resistant schizophrenic illness. It is particularly significant that those symptoms never completely disappear and that Mr Austin can actively conceal those symptoms. Those symptoms include homicidal ideation. I also note the advice of the assisting psychiatrist that Austin’s urge to kill is egosyntonic, which means that is it is not something that bothered him. Dr Varghese noted that Mr Austin is not troubled by his urges nor does he complain or seek amelioration of his symptoms. I also note in particular Dr Varghese advice that this lack of concern by Mr Austin may be indicative of a degree of psychopathy but that such concealment may also because he “is clever enough to know the consequences of revealing such disturbing psychotic phenomena”. [231] There is no doubt given those factors that society needs to be protected from Mr Austin. [232] I also note the concern all psychiatrists have expressed in relation to Mr Austin’s future dangerousness given those factors. I note in particular Dr McVie advice that Mr Austin requires a lengthy inpatient admission and that Dr Varghese counsels maximum scepticism in relation to any declared future improvement in his mental health. [233] A Forensic Order is clearly required. -- 46 of 47 -- 47 [234] Given the seriousness of the offences, the unpredictability of Mr Austin’s treatment response, his residual symptoms, his ability to successfully conceal symptoms as well as history of relapses as I do not consider that there should be any Limited Community Treatment at this point in time. [235] Accordingly Limited Community Treatment is not approved. [236] I would recommend that at all future reviews of the Forensic Order by the MHRT consideration should be given to these reasons and the serious concerns raised by all the psychiatrists. Orders [237] I consider that orders should be in the following terms: 1. The defendant was of unsound mind at the time of the commission of the alleged offence of common assault on 21 January 2007. 2. The proceeding against the defendant in relation to the alleged offence of common assault on 21 January 2007 is discontinued and further proceedings must not be taken against the defendant for the acts constituting that offence. 3. There is a reasonable doubt, pursuant to s 268 of the Mental Health Act 2000 (Qld), that the defendant committed the alleged offence of possession of tainted property on 2 April 2010. 4. The defendant is fit for trial in relation to the alleged offence of possession of tainted property on 2 April 2010. 5. The proceeding against the defendant in relation to the count of possession of tainted property on 2 April 2010 is to continue according to law. 6. There is no fact that is substantially material to the opinion of an expert witness as defined in s 269(1) of the Mental Health Act 2000 (Qld) that is so in dispute it would be unsafe to make a decision on unsoundness of mind or diminished responsibility in relation to the count of murder on 30 March 2010. 7. The defendant was of unsound mind at the time of the commission of the alleged offence of murder on 30 March 2010. 8. The proceeding against the defendant in relation to the alleged offence of murder on 30 March 2010 is discontinued and further proceedings must not be taken against the defendant for the acts constituting that offence. 9. A Forensic Order is required detaining the defendant to The Park High Security Program Authorised Mental Health Service. 10. Limited Community Treatment is not approved. 11. The psychiatric and psychological reports presented during the hearing and the transcript of the hearing be released to the parties and the Attorney-General for use in the Metal Health Review Tribunal proceedings. -- 47 of 47 --