Bosanquet, Re [2011] QMHC 24

MENTAL HEALTH COURT CITATION: Re Bosanquet [2011] QMHC 24 PARTIES: REFERENCE BY DIRECTOR OF MENTAL HEALTH IN RESPECT OF DAVID ANDREW BOSANQUET PROCEEDING NO: 0045/11 DELIVERED ON: 12 December 2011 DELIVERED AT: Brisbane HEARING DATE: 26 September & 2 November 2011. JUDGE: Ann Lyons J ASSISTING PSYCHIATRISTS: Dr J Lawrence Dr A Davison FINDINGS AND ORDERS: CATCHWORDS: 1. That at the time of the three alleged offences on 4 October 2010 and 5 October 2010 the subject of the reference the defendant was of unsound mind as defined in the Schedule of the Mental Health Act 2000 (Qld). 2. That the defendant be detained in the Mackay Authorised Mental Health Service. 3. That limited community treatment is approved to commence immediately at the discretion of the authorised psychiatrist, on the conditions set out in the submission of the Director of Mental Health. 4. That the defendant have no contact with the victims of the alleged offences. MENTAL HEALTH – DECLARATION OR FINDING OF MENTAL ILLNESS OR INCAPACITY – where defendant charged with one count of unlawful stalking and two counts of arson – whether defendant deprived of the capacity to understand the nature of the act, the capacity of control or the capacity to know that he ought not do the act under s 27(1) of the Criminal Code 1899 (Qld) – whether defendant intoxicated by cannabis or alcohol at the time of the offences – whether limited community treatment is appropriate – whether a non-contact order should be made pursuant to ss 313B(1) and 313C of the Mental Health Act 2000 (Qld) COUNSEL: J Briggs for the defendant J Tate for the Director of Mental Health A Lossberg for the Director of Public Prosecutions -- 1 of 22 -- 2 SOLICITORS: Legal Aid Queensland for the defendant Crown Law for the Director of Mental Health Director of Public Prosecutions (Qld) Ann LYONS J: The charges [2] David Andrew Bosanquet is charged with three offences, namely one count of unlawful stalking on 4 October 2010 and two counts of arson on 5 October 2010. [3] Pursuant to two references filed on 21 February 2011 and 6 May 2011 the Director of Mental Health has referred the question of Mr Bosanquet‟s mental condition at the time of the commission of the alleged offences to this Court for determination. The circumstances of the charges [4] It is alleged that on 4 October 2010 Mr Bosanquet left a series of voicemail messages on the telephone of his ex partner which were hostile and aggressive. The complainant and the defendant had been in a relationship which was „on and off‟ over the previous 21 years. They had recently begun seeing each other again and the defendant had resided in a caravan next door to the complainant‟s caravan at the Proserpine Caravan Park. [5] The defendant however moved from the caravan park after the complainant once again ceased their relationship due to his aggressive and unstable behaviour. The voicemail messages to the complainant were all aggressive, abusive and threatening and were made between 3.56 pm and 10.52 pm. Those messages give rise to the count of unlawful stalking on the evening of 4 October 2010. [6] On the following morning 5 October 2010 at about 5am Mr Bosanquet‟s ex partner‟s caravan at the tourist park was set on fire. Another fire was started whilst police were in attendance at about 6.30 am at an adjacent site occupied by a man the defendant believed had commenced a relationship with his ex partner. [7] Mr Bosanquet was observed at the Proserpine BP Service Station a short time prior to the fires starting at the caravan sites. It is clear that the voicemail messages indicated that the defendant believed his former partner was in a relationship with the other man. Dr O’Sullivan’s evidence [8] Dr O‟Sullivan prepared a section 238 report dated 4 April 2011 and gave oral evidence at the hearing. Dr O'Sullivan indicated that Mr Bosanquet had his first episode of mania five years ago when he apparently had numerous grandiose business plans and ended up in the street with no clothes on threatening others. He did not receive any treatment at the time but it is likely Dr O'Sullivan indicates that this was the first episode of his bipolar illness. He stated that during the 2006 episode he got into significant trouble with police due to his concern that Australia was being invaded and his belief that there was a religious solution involving “the Messiah and the intervention of God”. He stated that the hospital notes at the time referred to him being „disorganised‟ and that the mental state assessment, noted -- 2 of 22 -- 3 “acceleration of thoughts and a grandiosity and a paranoid psychosis consistent with a manic episode of bipolar disorder”. [9] Dr O'Sullivan indicated that after his arrest on the current stalking charge he was assessed at the Mental Health Unit at Mackay where he was found to be loud and disinhibited as well as irritable and elevated in mood. He spoke in an accelerated manner and his thoughts were disorganised. He also showed no insight and poor judgment. Whilst he was treated for a bipolar illness it was noted that he had a history of marijuana abuse as well. [10] Dr O'Sullivan considered that Mr Bosanquet was mentally ill throughout 2010 including the time he was alleged to have stalked his ex partner and set fire to the caravans. He considered that on the balance of probabilities Mr Bosanquet was deprived of the capacity to control his actions and that he was labouring under several paranoid delusions at the time. He considered that his judgment and insight were seriously impaired on account of his illness. He was psychotic with delusional beliefs which, whilst they were not of the same nature as those he had previously experienced they were certainly attached to his perception of the activities of his partner and were delusionally based. He continued “I did construe that as paranoid psychosis associated with a recurrence of a manic episode of bipolar.” [11] Dr Sullivan considered that at the time, his illness was governing his thinking to the extent that he was unable, with a moderate degree of sense and composure, to think rationally of the reasons which, to ordinary people, would make those offences right or wrong. [12] Dr O‟Sullivan also noted that around the time of the index offences there was an interruption of his normal sleep pattern and activities which was consistent with the onset of a manic episode prior to the index offences. He considered that there was little doubt that he was in a manic phase of bipolar. In his view it was a recurrence of a problem, which was complicated by alcohol abuse, whereby he was misconstruing reality to the extent that he was clearly psychotic. [13] Mr Bosanquet told Dr O‟Sullivan that cannot independently recall whether he had been drinking or taking drugs. He told Dr O‟Sullivan however that when he starts becoming unwell he tends, amongst other things, to drink alcohol and use marijuana. Dr O‟Sullivan stated that “and that's not an uncommon sign in people drifting into a manic state. They do self medicate, or they do start to consume alcohol.” In many respects Dr O‟Sullivan considers that Mr Bosanquet uses substances in an attempt to treat his symptoms. Dr O‟Sullivan stated that using alcohol or using cannabis is part of the illness and said “I see this with lots of people who drift in a manic state, they - they - it is like fish to water, they have this overwhelming desire to drink alcohol. I don't know what the attraction is, but it is some form of self medication, but they do get into all sorts of mood altering substances and I think self medication is a component of it.” [14] Dr O‟Sullvan stated “I think that his control, his volitional control over his drug and alcohol consumption when manic is pretty close to nothing.” Dr O‟Sullivan viewed intoxicant usage as “being part and parcel of his psychotic state.” [15] Dr O‟Sullivan also indicated that it was not safe to rely on his self report about the amount that he was drinking or the marijuana he was using prior to the index -- 3 of 22 -- 4 offences as he was out of touch with reality. He also said that when he saw him he was showing quite a considerable amount of contrition and “making all sorts of apologies, perhaps more than he ought, so in any case I thought his judgment about what he had been drinking couldn't be taken as gospel at all”. He agreed that his explanations about drinking were consistent with a man who had begun treatment after having had a very severe exacerbation of his mental illness. [16] He also stated that Mr Bosanquet made that statement when he was proceeding into a depressive swing where “self-recrimination and guilt are a component of the mental state”. Dr O‟Sullivan also considered that Mr Bosanquet‟s belief that he must have been drinking could be an attempt to find an explanation for his irrational behaviour. “I think he'd come well and truly down from the manic swing and he was somewhat depressed and self blaming and I didn't feel he was trying to make excuses. I felt he was trying to provide - he was giving reasons why he, you know, wasn't such a good chap at all.” [17] In relation to the issue of deprivation of capacity and intoxication Dr O‟Sullivan concluded “My own view is that the illness itself was sufficient for him to behave in the manner that he did and that I have no knowledge of his alcohol consumption and it appeared to me that his behaviour was accountable for - by in terms of his being psychotic and manic with or without alcohol being involved.” [18] Dr O‟Sullivan also noted that Mr Bosanquet‟s psychotic symptoms continued for three weeks after his admission to hospital and in the absence of intoxicants. He considered that the continuation of paranoid psychotic symptoms in the context of an ongoing manic illness only confirms the original diagnosis that this was a man who was quite mentally ill prior to and throughout the index offences and beyond the index offences for a period of some weeks. He stated that the fact that it took some weeks for his mood to stabilise and for the anti-psychotic medication to take effect is „textbook typical‟. In his view if all of his conduct were accountable just simply in terms of alcohol intoxication and marijuana effects then his symptomatology and his mental state would have settled rather promptly “as soon as those substances were out of his system and metabolised in the first few days or maybe a week but certainly not three weeks”. [19] Dr O‟Sullivan considered that Mr Bosanquet is currently fit for trial and is continuing to receive treatment and is currently under an ITO. Dr Lien [20] A further update report dated 19 September 2011 by Dr Michelle Lien indicated that Mr Bosanquet has been stable with no overt mood, psychotic anxiety symptoms or any suicidal ideation. The report also indicated that Mr Bosanquet stated that he was abstaining from using alcohol and illicit substances. Whilst the report noted that Mr Bosanquet had limited insight into his mental illness he “acknowledged being „pretty crook‟” at the time of the offences and that he “went off the rails … did things that I would not normally do or say” and he put it down to having “drunk and smoked too much”. -- 4 of 22 -- 5 [21] The report indicated that Mr Bosanquet was currently compliant with his medications which included Lithium, Valproate and Olanzapine. The report indicated that Mr Bosanquet was fit for trial and had been stable for over 6 months. It was considered that Mr Bosanquet was able to withstand a trial without any serious adverse consequences to his mental conditions. Dr Grant [22] Dr Donald Grant prepared a report dated 27 May 2011 and also gave oral evidence. In his report he indicated that Mr Bosanquet told him that about a week before the events he had been charged with driving his car under the influence of alcohol. He told him that the blood test revealed that he was intoxicated with both cannabis and alcohol at the time. Mr Bosanquet also told Dr Grant that he recalls making telephone calls to the complainant and that he had become convinced that she and a person called David Buchanan were having a relationship. He stated he had no recollection of the arson offences and the first he knew about them was when the police arrested him. Although he does not recall committing the offences he indicates that it was too coincidental for someone else to have set fire to the caravans in the context of the conflict between himself and his former partner. [23] Dr Grant recounted that Mr Bosanquet stated that in the period leading up to the offences he had been consuming an excessive amount of alcohol and that because he is not a heavy drinker alcohol tends to affect him quite severely. He said that he was having a big binge at the time and one of those binges ended up with him having the accident in his car. Because he lost his licence as a result of the accident and because his car was also smashed up this was very stressful to him. Mr Bosanquet said that in addition to the alcohol intoxication he was a chronic user of marijuana and had smoked 20 cones a day for a period of 40 years. It would appear that he told Dr Grant he smoked strong hydroponic marijuana and would often use up to 40 cones some days. [24] Dr Grant stated that Mr Bosanquet believes that under the stressors he was experiencing he would have been smoking heavily at the time. He states that the combination of marijuana and alcohol has never been a good thing for him and leads to problems. [25] Dr Grant also noted that Mr Bosanquet had an episode of mental illness in 2006 which was subsequently diagnosed as mania. It would also appear that at that time he had also been using a lot of marijuana. [26] Dr Grant considered that at the time of the alleged offences Mr Bosanquet was suffering from mental illness, namely the manic phase of a bipolar affective disorder with psychotic beliefs. He considered that the delusions of infidelity by his ex-wife were present as a symptom of the manic episode. However Dr Grant initially believed from Mr Bosanquet‟s self report that there was evidence that he was also consuming both alcohol and cannabis at the time. Dr Grant considered that Mr Bosanquet was probably deprived of the capacity to know that he ought not do the acts and of the capacity to control his actions but was uncertain about the impact of possible intoxicants at the time. [27] Dr Grant indicated that he initially accepted Mr Bosanquet's accounts of his excessive use of alcohol and marijuana over some time before the offences and -- 5 of 22 -- 6 recorded that Mr Bosanquet himself attributed the offences to the effect of the alcohol and drugs. [28] It is clear however that at the time of writing his report Dr Grant did not have any hospital notes or any witness statements. In his written report Dr Grant initially considered that this deprivation was brought about by a combination of his mental illness and intoxication. Whilst he initially stated that in his opinion the mental illness alone would not have deprived him of either of those capacities Dr Grant however ultimately concluded that there was insufficient, reliable and objective information about either cannabis or alcohol consumption to be satisfied that intoxication played a role in the deprivation of any capacity. [29] Dr Grant ultimately considered that Mr Bosanquet's account of consumption was probably exaggerated. Furthermore Dr Grant indicated that Mr Bosanquet‟s attribution some months after the offending to drug and alcohol use was common with mania and is associated with lack of insight into the extent of the illness. [30] Dr Grant also referred to the measurements of blood pressure and pulse which were taken on admission to hospital and did not consider that they were consistent with alcohol withdrawal as rapid pulse, sweating and maybe some increased blood pressure would be expected. He considered that the readings were more consistent with manic symptoms than intoxication or withdrawal. He also agreed that the admission notes recorded that he was "Attempting to enter their bedrooms" and was "Oppositional towards medication." He agreed that he was given Lorazepam which is used for treatment of manic behaviour. Dr Grant agreed that his manic symptoms were ongoing at that point and his behavioural problems were evident. [31] Dr Grant also indicated that sometimes marijuana intoxication and psychosis can take quite a while to settle but that the length of time in this case was in fact consistent with a manic illness. Dr Grant‟s considered that he started to settle after 10 days to two weeks which is the usual length of time that the mood-stabilising medications take effect when mania is present. [32] Dr Grant also agreed with Dr O‟Sullivan that drug and alcohol use can rise when a person becomes unwell in an attempt to manage the symptoms. He said that one of the consequences of becoming manic would be to use more substances, and that would be not at all uncommon. “As Dr O'Sullivan said, it can be a way of person trying to use - control their symptoms, get some sleep, drinking a lot of alcohol, maybe smoking more marijuana because they're awake more hours of the day and more disinhibited and so on. So that's not at all an uncommon aspect of someone being unwell.” [33] Dr Grant also indicated to Counsel for Mr Bosanquet: “if you need to consider capacities separately then I would say that the thing that was primarily depriving him of the capacity would be his delusions regarding that man. So that he - he might be sense deprived of the capacity to no - or not do the act by the delusions, whereas alcohol might have been playing more of a role in capacity to deprive him of control.” [34] Dr Grant also agreed that the evidence indicated that Mr Bosanquet had hired a car and that he was at the caravan park for some time. He noted that when he was seen -- 6 of 22 -- 7 12 hours later a senior medical officer, there was no indication of alcohol or any suggestion that he smelt of alcohol. Dr Grant agreed that the fact that he hired a vehicle, drove it there and stayed there without revealing his purpose for that length of time suggests that he wasn't grossly intoxicated. [35] In response to a further question Dr Grant agreed that it is probable that at the time of the offences that Mr Bosanquet was deprived of the capacity to know that what he was doing was wrong by reason of his illness alone. He considered that on the balance of probabilities that it was the illness that deprived him of that capacity. Dr Grant stated that notwithstanding that Mr Bosanquet might have known at the time of the arson offences that what he was doing was illegal, and perhaps even that others might not have approved of it, he still considered that he was deprived of the capacity to know that what he was doing was wrong as through the intensity of his illness, he held a strong personal belief driven by his illness that he had the right to do the acts. [36] Dr Grant also noted that Mr Bosanquet has been stable for a number of months and that he is now in a good state of mental health. He considers that Mr Bosanquet is fit for trial and is able to instruct his counsel. The advice of the assisting psychiatrists [37] Dr Lawrence noted that whilst there was no actual blood tests contained in the material there was a reference to some blood test results in the discharge summary which indicated a reading showing one plus (1+) of cannabis in his urine drug screen on admission and the same amount at discharge some considerable time later. Dr Lawrence stated that those readings do not support his self report that he had been consuming “30 to 40 cones or 20 to 30 cones a day of cannabis for weeks, days - days or weeks.” Dr Lawrence considered that if he had been consuming that amount she would have expected “at least a three plus level of cannabis and since one assumes that he had none in hospital, that it should have conceivably gone down a little. And so my guess is that - my - my conclusion would be that the amounts that he claimed to be using were inflated.” Dr Lawrence considered that as his symptoms escalated and his alcohol and cannabis use may well have increased but that the accuracy of these claims must be seen as being very unreliable and inconsistent. [38] Dr Lawrence‟s advice was that tests that are available are not in accord with the variably claimed quantities of marijuana and alcohol used by Mr Bosanquet. Furthermore her clinical opinion was that those results do not confirm the presence of significant quantities of either alcohol or cannabis sufficient to influence the elevated mental state with its delusional beliefs which had been present for a considerable number of months prior to the offending behaviour. [39] Dr Davison also indicated that the full blood count result indicates a reading in relation to alcohol use which is within the normal range, and “which would not support the notion of long-term alcohol abuse”. [40] Dr Lawrence‟s advice was that Mr Bosanquet‟s manic symptoms appear to have commenced at least 12 months before the offending behaviour and that he had previously held psychotic beliefs that the Indonesians and others were planning to invade Australia. She also indicated that he developed delusional beliefs that his de -- 7 of 22 -- 8 facto wife was having an affair. He had become threatening to her such that she had separated from him as a result of fears for her safety. [41] Dr Lawrence also noted that all of the evidence consistently indicated that he was very elevated in mood and was obviously increasingly erratic and, at times, agitated. Dr Lawrence stated that whilst the reports of the use of substances are inconsistent, the descriptions of his manic behaviour in both the police and the hospital records at the time were remarkably consistent [42] Dr Lawrence noted that in his oral evidence Dr Grant expressed the clear opinion that it was the mania itself which produced a delusional belief of the infidelity, which then motivated the actions of both the obscene phone calls and the arson offences some hours later. Dr Grant formed the opinion that the mania itself deprived Mr Bosanquet of the capacity to know that he ought not do the act and also to control his behaviour, thus providing an unsoundness defence. Dr Lawrence also noted Dr Grant‟s view that Mr Bosanquet needed a forensic order. [43] Dr Lawrence stated that the Court process in this case highlighted the initial absence of important pieces of clinical information. That information included the records of his hospital admissions around the time of the alleged offences. That information was subsequently provided and included notes from Bowen Hospital for admissions on 3 and 5 October 2010. On 5 October at two in the afternoon he was brought in to Bowen Hospital by police pursuant to an emergency examination order. The hospital notes recorded that he had pressured speech, flights of ideas, paranoid ideation, was emotionally labile, threatening harm to his ex-wife and anyone else who crossed him and stated that he was "affluent one minute and broke the next" Dr Lawrence noted that at that stage his behaviour was such that he required detention under the Mental Health Act. He was then transferred to Mackay Base Hospital where his manic behaviour, both subjectively and objectively, continued for many days, even after considerable medication. [44] Dr Lawrence also considered that the medical records indicate that the elevated mood and the delusional beliefs, which were present both shortly before the offending and for some considerable time after the offending behaviour, were obviously evident, even in the presence of treatment. [45] Dr Lawrence indicated that her clinical advice was that Mr Bosanquet at the time of both offences on 4 and 5 October 2010 was suffering from an acute episode of mania and a bipolar affective disorder of some months duration and he was so affected by his psychotic beliefs that he committed the offences of both stalking and arson at that time. Dr Lawrence concluded that he was deprived of the capacity to know that he ought not to do those acts at that time. She also considered that as a result of his delusional beliefs and his arousal he was also deprived of the ability to control his behaviour as a result of his manic illness. In her view intoxication did not contribute to any extent to the offending behaviour which was driven by his mental state at the time. [46] She considered that Mr Bosanquet needs a forensic order because his illness is such that it poses a great risk of harm to himself and others. A forensic order would ensure his continuing long-term clinical care needs are appropriately met. The limited community treatment conditions proposed are appropriate. -- 8 of 22 -- 9 [47] Dr Davison agreed with that advice in all respects. The meaning of “unsoundness of mind” [48] Pursuant to s 267 of the Mental Health Act 2000 this Court must determine if Mr Bosanquet was of “unsound mind” when the 3 alleged offences were committed. [49] That term “unsound of mind” is defined in the schedule of the Act to mean: “the state of mental disease or natural mental infirmity as described in the Criminal Code s 27, but does not include a state of mind resulting, to any extent, from intentional intoxication or stupefaction alone or in combination with some other agent at or about the time of the alleged offence.” [50] Section 27 of Criminal Code (Qld) 1899 provides: “27 Insanity (1) A person is not criminally responsible for an act or omission if at the time of the act or 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 the capacity to control the person‟s actions, or of the capacity to know that the person ought not do the act or make the omission.” [51] On the basis of the reports of the reporting psychiatrists and the advice of the assisting psychiatrists I am satisfied that Mr Bosanquet was suffering from a state of mental disease at the time of the commission of the alleged offences given he was experiencing a manic phase of his bipolar disorder at the time. Was the defendant intoxicated? [52] The next question which needs to be considered is whether Mr Bosanquet‟s state of mind resulted to any extent from intentional intoxication. It is clear that the definition of „unsound mind‟ indicates that a finding of unsoundness is not available if the state of mind resulted to any extent, from intentional intoxication or stupefaction alone or in combination with some other agent at or about the time of the alleged offence. [53] The assisting psychiatrists as well as Dr Sullivan and Dr Grant do not consider that there is any reliable, objective evidence about intoxication. I also note that none of the contemporaneous reports by police or medical personnel refer to alcohol or recent drug use. I also consider that due to the period of time over which the arson offences are alleged to have occurred it is also unlikely he was intoxicated whilst driving to the caravan park or whilst he was actually concealed at the caravan park. [54] Neither is it appropriate to rely on Mr Bosanquet‟s self report about his level of consumption. Dr Sullivan stated that initially Mr Bosanquet told him that he could not recall if he had been drinking. Dr Sullivan noted that Mr Bosanquet is now very contrite about what he did and he considers that Mr Bosanquet may be trying to justify or understand his behaviour by blaming it on alcohol. [55] In would seem clear to me therefore that that there is no objective evidence that Mr Bosanquet had in fact been drinking or consuming substances to the extent that he -- 9 of 22 -- 10 was intoxicated at the time of the alleged commission of the offences. I am not satisfied therefore that intoxication in fact played any role in the deprivation of any of the capacities. The meaning of deprivation [56] It is clear, however, that the mental disease must be such that it actually deprives a person of one of the three relevant capacities. The real question is whether the state of mental disease was such that Mr Bosanquet was actually deprived of one of the relevant capacities because of that mental disease. I accept that as Dowsett J explained in ReW1 “the incapacity or infirmity must have (probably) actually deprived the accused of the relevant capacity at that time” and that it is not a question of determining whether the mental disease was such that it was „sufficient‟ to deprive the person of responsibility. [57] There must therefore be an examination of the nature of the illness and the nature of the act which is under consideration to ascertain whether the actual nexus required by the section has in fact been established. That is to examine whether there has been an actual deprivation of the relevant capacity because of the mental illness. The capacities must be considered disjunctively [58] When considering the three capacities referred to in s 27 of the Code it is important that those capacities are considered disjunctively. As Margaret Wilson J stated in LIH2 “[14] The “state of mind” referred to in the second part of the definition of “unsound mind” (beginning “but does not include ...”) is a description of absence of capacity caused by mental disease. This part of the definition recognises that there may be more than one cause of a deprivation of capacity. The other cause (or causes) may be intentional intoxication or something else. If intentional intoxication plays any role in bringing about the deprivation, the state of mind does not amount to “unsoundness of mind”: that is what is meant by the words “resulting, to any extent, from …”. [15] Mental illness may deprive someone of one of the capacities. Another capacity may be adversely affected by mental illness or by intoxication or by a combination of mental illness and intoxication (whether or not the intoxication is combined with some third factor). The extent (whether deprivation or mere impairment) and the cause or causes of the adverse effect on the second capacity cannot derogate from a finding of unsoundness of mind based on the deprivation of the first capacity.” 1 14 October 1997 2 [2002] QMHC 14 -- 10 of 22 -- 11 The relevant capacities? [59] Given the extensive submissions from Counsel for the DPP in this matter it is necessary to revisit some of the seminal decisions in relation to the nature of the three different capacities. Once again Dowsett J‟s analysis in Re W is of considerable assistance as it provides an analysis of some of the pivotal decisions and their relationship with s27 of the Code and the work of the Mental Health Court and its predecessor the mental Health Tribunal. His Honour explained: “In the work of the Tribunal, legal and medical practitioners often fail to identify separately these discrete capacities. It is appropriate to take this opportunity to give some indication of my understanding of their respective areas of operation. Section 27 was derived from the advice given to the House of Lords by the Judges in M’Naghten’s case (1843) 10 CL& F 200 at pp 210-11. In that case it was said that:- „…to establish a defence on the ground of insanity, it must be clearly proved that, at the time of the committing of the act, the party accused was labouring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing; or, if he did know it, that he did not know he was doing what was wrong. The mode of putting the latter part of the question to the jury on these occasions has generally been, whether the accused at the time of doing the act knew the difference between, right and wrong: which mode, though rarely; if ever, leading to any mistake with the jury, is not, as we conceive, so accurate when put generally and in the abstract, as when put with reference to the party's knowledge of right and wrong in respect to the very act with which he is charged. If the question were to be put as to the knowledge of the accused solely and exclusively with reference to the law of the land, it might tend to confound the jury, by inducing them to believe that an actual knowledge of the law of the land was essential in order to lead to a conviction; whereas the law is administered upon the principle that every one must be taken conclusively to know it, without proof that he does know it. If the accused was conscious that the act was one which he ought not to do, and if that act was at the same time contrary to the law of the land, he is punishable; and the usual course therefore has been to leave the question to the jury, whether the party accused had a sufficient degree of reason to know that he was doing an act that was wrong: and this course we think is correct, accompanied with such observations and explanations as the circumstances of each particular case may require.‟ In construing s.27 of the Criminal Code of Western Australia, the High Court has recently had regard to Sir Samuel Griffith‟s notes to the draft Code (1897). See R v Falconer (1990) 171 CLR 30 at p.47. It therefore seems appropriate to consider those notes for present purposes. The following passage (p.14 of the draft Code) was cited by Mason CJ, Brennan and McHugh JJ in Falconer:- -- 11 of 22 -- 12 „An act to involve criminal responsibility must be voluntary, as distinguished from involuntary (s.23) – that is to say, it must be accompanied by volition. In order that an action may be accompanied by volition there must be in the first place perception, more or less accurate, of the facts, then a determination or choice of the action to be taken upon those facts, and finally the action. If the person in question is incapable from mental disorder of rightly perceiving the facts, he should be treated on the same footing as a man who in good faith misapprehends the facts (s.24). If he is for the same cause incapable of exercising the power of determination or choice, he should be treated on the same footing as a man who does an act independently of the exercise of his will (s.23).‟ As in Falconer, I have renumbered the reference to sections of the draft to reflect the section numbers as currently enacted. What Griffith meant, as Falconer makes clear, was that s.27, by itself, or in conjunction with ss.26 and 28, operates to provide defences comparable to those established by ss.23 and 24 of the Code, save that ss.26,27 and 28 apply where the condition in question is as a result of mental disease or natural mental infirmity whilst ss.23 and 24 apply otherwise. This analogous operation is of particular assistance in determining the meaning to be attributed to the reference in s.27 to „capacity to control the person‟s actions‟, which capacity was not mentioned in M’Naghten. I will return to this matter later. The first capacity, namely to understand what the person is doing, has generally been treated as reproducing the M’Naghten reference to knowing the nature and quality of the act. In R v Codere (1916) 12 Cr. A.R. 21 the English Court of Criminal Appeal held that the reference to „nature and quality‟ should not be taken as distinguishing between the physical and moral aspects of the act, but as a reference only to its physical character. The wording of s.27 indicates an intention to bring about the same outcome. As to the capacity to know that one ought not do the act or make the omission, in the passage cited from M’Naghten (supra), the Judges made it clear that the requisite knowledge was not necessarily knowledge of the law. A more abstract knowledge of the difference between right and wrong was sufficient. In Codere (supra) the Court said at pages 27-28:- „It is conceded now that the standard to be applied is whether according to the ordinary standard adopted by reasonable men the act was fight or wrong. There may be cases where it is difficult to decide that question, but that is not the case here. The Judges in M'Naghten's case, in answering the second and third questions put to them, said:- “If the accused was conscious that the act was one which he ought not to do, and if that act was at the same time -- 12 of 22 -- 13 contrary to the law of the land, he is punishable; and the usual course therefore has been to leave the question to the jury, whether the party accused had a sufficient degree of reason to know that he was doing an act that was wrong.” That is the accepted test, and applying it in this. case, there can be no room for doubt; once it is clear that the appellant knew that the act was wrong in law, then he-was doing an act which he was conscious, he ought not to do, and as it was against the law, it was punishable by law, assuming therefore, that he knew the nature and quality of the act, he was guilty of murder, and was properly convicted. The difficulty no doubt arises over the words “conscious that the act was one which he ought not to do” but, looking at all the answers in M'Naghten’s case, it seems that if it is punishable by law it is an act which he ought not to do, and that is the meaning in which the phrase is used in that case. There may be minor cases before a court of summary jurisdiction where that view may be open to doubt, but in cases such as these the true view is what we have just said.‟ However, in R v Windle [1952] 2 QB 826 at p 832 Lord Goddard CJ said:- „As I endeavoured to point out in giving the judgment of the Court in R v Rivett, in all cases of this kind, the real test is responsibility. A man may be suffering from a defect of reason, but if he knows that what he is doing “wrong”, and by “wrong” is meant contrary to law, he is responsible.‟ The inconsistency between Codere and Windle was addressed by the High Court (Dixon CJ, Webb and Kitto JJ) in Stapleton v The Queen (1952) 86 CLR. 358. At p.367 the Court cited with apparent approval the direction, given by Dixon J (as his Honour then was) at first instance in R v Porter (1933) 55 CLR 182 at pp. 189-90 as follows:- „The question is whether he was able to appreciate the wrongness of the particular act he was doing at the particular time. Could this man be said to know in this sense whether his act was wrong if through a disease or defect or disorder of the mind he could not think rationally of the reasons which to ordinary people make that act right or wrong? If through the disordered condition of the mind he could not reason about the matter with a moderate degree of sense and composure it may be said that he could not know that what he was doing was wrong.‟ I will return to this passage at a later stage. Their Honours then considered a large number of cases, leading them to conclude that Windle was incorrect and inconsistent with the principles established in M'Naghten. -- 13 of 22 -- 14 Referring to the last paragraph from the judgment in Codere cited above, their Honours said at p.375:- „This perhaps means that in cases of serious crime, the fact that it is punishable by law is enough to show the prisoner that it is something which he ought not to do, although the final test is that it is wrong according to the standards adopted by reasonable men. The truth perhaps is that, from a practical point of view, it cannot often matter a great deal whether the capacity of the accused person is measured by his ability to understand the difference between right or wrong according to reasonable standards, or to understand what is punishable by law, because in serious things the two ideas are not easily separable. But in certain cases, where the insane motives of the accused arise from complete incapacity to reason as to what is right or wrong (his insane judgment even treating the act as one of inexorable obligation or inescapable necessity), he may yet have at the back of his, where the insane judgment even treating the act as one of inexorable obligation or inescapable necessity), he may yet have at the back of his mind an awareness that the act he proposes to do is punishable by law.‟ This means that in the case of a serious offence, knowledge that the act is contrary to law may often be indistinguishable from knowledge that it is wrong according to reasonable standards. However, that may not always be the case. I have made reference to the direction given by Dixon J. in Porter. I return to that passage because I have perceived a tendency amongst those appearing before the Tribunal to refer in isolation to the last sentence:- „If through the disordered condition of the mind he could not reason about the matter with a moderate degree of sense and composure it may be said that he could not know that what he was doing was wrong.‟ The passage is sometimes cited in a way which implies that it states fully the test to be applied in cases such as this. However the context of the paragraph in which the sentence occurs makes it clear that the word „matter‟ is the rightness or wrongness of the act in question. Taking the sentence in isolation tends to put emphasis upon general reasoning powers rather than upon the power to distinguish between right and wrong. I come now to the capacity to control actions. The words used in s.27 clearly refer to a lost capacity to control physical acts. No question of moral judgement is involved. Having regard to Griffith‟s notes to the draft Code, one may draw a parallel between this provision and s.23 which provides that a person is not criminally responsible for an act or omission which occurs independently of the exercise of his will. This has been taken as referring to an involuntary act. See, for -- 14 of 22 -- 15 example, Kaporonovski v The Queen (1973) 133 CLR 209 per McTiernan ACJ and Menzies J at p. 215 and per Gibbs J (Stephen J concurring) at pp.226-7.” [60] I shall return to that analysis shortly. Was the defendant deprived of one of the relevant capacities? Submission from Counsel for Mr Bosanquet [61] On behalf of Mr Bosanquet it was argued that he was of unsound mind at the time of both the stalking charge and the arson charges due to the deprivation of the capacity to control his actions and the deprivation of the capacity to know that he ought not do the act. It was submitted that his jealousy and anger were both entirely based on delusional premises. It was submitted that he could not rationally contradict that premise or the emotions that were informed by it because they were the product of a severe illness controlling his mind at the time. In particular it was argued that it was his illness alone which prevented him from reasoning with a moderate degree of sense and composure about his actions. [62] It was therefore submitted that at the time of the offences Mr Bosanquet could not separate himself from his illness or from his delusions The submission from the DPP [63] Counsel for the Director of Public Prosecutions pointed to a number of factual matters which he considered indicated that the defendant was not deprived of any of the relevant capacities. In particular counsel submitted he was not deprived of capacity to know what he was doing or of the capacity to control his actions as argued by counsel for Mr Bosanquet. [64] Counsel noted that the derogatory messages left on the complainant‟s phone clearly indicate that he had not lost control but was simply angry. It was also submitted that during the second interview with police the applicant accepted that he lit the fires as “pay back” and that he wanted to make a statement. Counsel also noted that there was an element of planning involved as he took petrol with him to light the fires and after lighting the fires he went to the back of the caravan park to wait and observe proceedings. It was argued that those actions do indicate a loss of control of ones actions. [65] In terms of whether Mr Bosanquet knew he should not do the act counsel argued that in relation to the arson offences, the defendant went to great lengths in his initial interview with police to distance himself from the caravan park in Proserpine by saying that he was in fact in Bowen at the time. He also told them that he would not use his small car on the highway. Furthermore, it is submitted that the hiring of a car shows he pre-planned the drive and he clearly returned the car immediately on his return to Bowen. [66] Counsel indicated that this shows both pre-planning and the desire to avoid detection. Counsel also argued that the hiring of the other vehicle, together with statements trying to distance himself from Proserpine indicated that he clearly knew it was wrong to set fire to the caravans and he ought not to do the acts because he -- 15 of 22 -- 16 was trying to avoid detection. Mr Bosanquet later admitted to police that he could have turned around at any time on the journey between Bowen and Proserpine. [67] Consequently its is argued that the level of pre-planning, the fact he must have stayed hidden at the caravan park as well as his statement that he could have turned around all support the conclusion that he had capacity to control his actions. [68] Counsel submitted that the interviews with police support the conclusion that Mr Bosanquet was not deprived of any capacity because he understood what he was doing as he wanted to make a statement and he wanted a “pay back”. Counsel further argued that because he acknowledged it was “pay back” he must have known that it was wrong. Was the defendant deprived of the capacity to understand the nature of the act. [69] Mr Bosanquet clearly understood the physical nature of the acts he was undertaking and there is no suggestion on the evidence that he was deprived of this capacity Was the defendant deprived of the capacity of control? [70] It is clear that the capacity for control arises in circumstances where a person might understand the nature and quality of the act they are performing but there is a loss of volition or deliberative choice. It was argued by Counsel for the DPP that the capacity refers to involuntary acts with no question of moral judgment and is likely to cover epilepsy when a person is in a state of unconsciousness as well as natural mental infirmities where the pathways to the brain result in the person being incapable of controlling their actions. [71] Counsel for the DPP also submitted that whilst the loss of this capacity of control could occur in situations where a defendant was deprived by the nature of their command hallucinations or delusions of the ability to make a deliberative choice, there was no such evidence in this case. It was argued therefore argued that there was no evidence that Mr Bosanquet felt compelled to set fire to the vans. [72] Furthermore Counsel argued that Mr Bosanquet endeavoured to conceal his crime which shows he was in control of his actions. It is clear that in making that submission Counsel for the DPP has relied on Dowsett J‟s views as outlined in Re W which I have set out above. However Counsel is also arguing that that decision means that if there is any pre-meditation or preplanning then there can be no deprivation of the capacity of control. [73] In this regard however I agree with Margaret Wilson J‟s analysis in Re SAM:3 “[27] I have no difficulty in finding that the defendant was deprived of the capacity to know that he ought not do the act. I accept the evidence of Drs Heffernan, Fama and Kingswell that he was quite incapable of reasoning as to the moral rightness or wrongfulness of what he was doing. See R v Porter (1933) 55 CLR 182 at 189 -190 and Stapleton v The Queen (1952) 86 CLR 358. His subsequent conduct in washing his hands, calling 000 and lying waiting for the police was probably in response to some realisation of the enormity 3 [2003] QMHC 3 -- 16 of 22 -- 17 of what he had done; it is not an indicator of any capacity for moral reasoning at the time of the homicide. [28] Two of the capacities referred to in s 27 – the capacity to understand what one was doing and the capacity to know that one ought not do the act – are generally regarded as corresponding with the two capacities referred to in the M’Naghten Rules (see Re M’Naghten’s Case (1843) 10 Cl & Fin 200; 8 ER 718), namely the capacity to know the nature and quality of the act and the capacity to know that what one was doing was wrong. They are sometimes referred to as “the cognitive capacities”. There is a third capacity referred to in s 27 - the capacity to control one‟s actions, which is sometimes referred to as “the volitional capacity”. The action of a person deprived by mental disease of the capacity to control his or her actions is akin to an action which occurs, from some cause other than mental disease, independently of the exercise of the person‟s will: see Sir Samuel Griffith‟s Notes to the Draft Code in Queensland Parliamentary Papers, C.A. 89-1897 at 14, and R v Falconer (1990) 171 CLR 30 at 47. [29] In jurisdictions which do not have a provision in terms of s 27 and where the M’Naghten Rules apply, incapacity to control one‟s actions resulting from mental disease has sometimes been found to have caused or to be evidence of a deprivation of one of the cognitive capacities: Sodeman v The King (1936) 55 CLR 192 at 203 - 204, 208, 214 - 215; Attorney-General (SA) v Brown [1960] AC 432. In R v Falconer (1990) 171 CLR 30 at 48 - 49 Mason CJ, Brennan and McHugh JJ said - „It seems incongruous for the common law to hold that an accused who is deprived by mental disease of his capacity to control his actions cannot be acquitted outright on the ground that his actions were involuntary, nor is he entitled to a qualified acquittal on the grounds of insanity unless he proves not only that he was deprived of his capacity to control his actions but also that he did not know the nature and quality of his act or that it was wrong. Perhaps the incongruity does not often arise in practice for, as King CJ observes [in R v Radford (1985) 42 SASR 266 at 275]: “Although possible in theory, it is from a practical point of view extremely difficult to conceive of a state of things in which a person acting automatically and without any exercise of the will would nevertheless know what he was doing and that it was wrong.” (Cf. Sodeman v The King (1936) 55 CLR 192 at 205; Attorney-General (SA) v Brown [1960] AC 432)‟. However, I understand the advice of the assisting psychiatrists to be that there can be cases of psychotic disorder, mania or other mental disease where the person affected is deprived of neither of the cognitive capacities, but is nevertheless deprived of the capacity of freely choosing whether or not to do an act. So, too, can there be cases where a person is deprived of one or both of the cognitive -- 17 of 22 -- 18 capacities as well as the capacity of volitional control. That this may be so has been recognised in various jurisdictions. See, for example, the Criminal Code Act 1995 (Cth) s 7.3, the Irish cases of People (AG) v Hayes, Central Criminal Court (Ireland), 30 November 1967, Henchy J, unreported; and Doyle v Wicklow County Council [1974] IR 55; and the recent Irish Bill Criminal Law (Insanity) Bill 2002, where the M’Naghten Rules were extended to include volitional control. [30] The meaning of the capacity of control in s 27 of the Criminal Code was considered by Dowsett J in Re W, Mental Health Tribunal, 14 October 1997, unreported, and Re B, Mental Health Tribunal, 3 November 1997, unreported. In Re W his Honour said - „I come now to the capacity to control actions. The words used in s 27 clearly refer to a lost capacity to control physical acts. No question of moral judgment is involved. Having regard to Griffith‟s notes to the draft Code, one may draw a parallel between this provision and s 23 which provides that a person is not criminally responsible for an act or omission which occurs independently of the exercise of his will. This has been taken as referring to an involuntary act. See, for example, Kaporonovski v The Queen (1973) 133 CLR 209 per McTiernan ACJ and Menzies J at p 215 and per Gibbs J (Stephen J concurring) at pp 226 - 7.‟ And in Re B he said - „I have concluded that what is contemplated by that provision is a condition akin to an action which occurs independently of the will of the person in question in the way contemplated by section 23 of the Code. Where the act is accompanied by evidence of premeditation and planning it is, in my view, very difficult to conclude that the act was as a result of an inability to control one‟s actions. Premeditation and preparation indicate to the contrary. Where there is evidence of premeditation and preparation, therefore, a defence under section 27 of the Criminal Code must generally be sought in deprivation of one of the other two capacities therein prescribed.‟ [31] I respectfully agree that the capacity of control in s 27 is the capacity to control physical acts. The section is concerned with the criminal responsibility of a person deprived by mental illness of the capacity to control his or her physical acts. It is concerned with the loss of volitional control rather than motor control over physical acts. However, I do not accept that evidence of premeditation and preparation is necessarily or even generally indicative of the presence of some capacity of control. Certainly whether there has been a deprivation of capacity must be determined as at the very moment of the homicide, rather than at some earlier time. However insofar as conduct leading up to that moment can legitimately be considered as evidence from which the inference of a deprivation of -- 18 of 22 -- 19 capacity may be drawn, it is necessary to examine that conduct to see whether it was itself the product of mental illness. [32] The premeditation and preparation in which the present defendant engaged (fetching the chain and the rock and taking them to the deceased‟s home) were themselves driven by his delusional mood and psychotic thinking. As such I do not accept that they are indicative of the existence of any capacity of volitional control.” (my emphasis)” [74] I agree with that approach. [75] In the present case it is true, as Counsel for the DPP submits, that there is evidence that some of Mr Bosanquet‟s actions were purposeful in that he could control his physical acts. The capacity for control however is not in my view simply about the capacity to control one‟s physical acts or „motor control‟ it is actually to do with “volition” which is whether that act is truly a willed act of the person in that it was an act they freely chose to do or whether it is an act driven by the delusions. [76] The evidence of all the psychiatrists was quite clear that his actions on 4 and 5 October were driven by his delusional thinking. [77] I consider that Mr Bosanquet‟s acts with respect to all 3 offences were driven by his delusional views about his ex-partner. I also consider that when the acts are examined they in fact show a lack of intelligent direction, which I consider confirms that his actions were obviously driven by his delusional thinking. This is obvious when the transcripts of the telephone calls are considered. Furthermore, buying petrol on the way to light a fire is hardly a rational thing to do if one is hoping to avoid detection. Similarly, lighting a second fire when police are in an adjacent caravan is simply foolhardy and in my view points to a lack of control. I also consider that Mr Bosanquet‟s actions in hiring a rental car in his own name is not in fact an action which is consistent with concealment given the paper trail involved in a car rental agreement. Rather, I consider that hiring a car so he could drive to Proserpine is evidence that he was so compelled to do the act that he hired a car to achieve his mission given his own car was not fit for the purpose. [78] Accordingly whilst there was some planning it was either erratic or was in fact evidence of his disordered thinking. In this regard I endorse the approach of Chesterman J (as he then was) in Re McCulloch4 where his Honour found that there was a loss of a capacity for control even though some of the physical actions were purposeful around the time of the killing. [79] I consider that Mr Bosanquet was deprived of the capacity of control at the time of the alleged offences on 4 and 5 October 2010. Was Mr Bosanquet deprived of the capacity to know he ought not do the act? [80] It is clear that all of the psychiatrists consider that Mr Bosanquet was deprived of the capacity to know he ought not do that act. In response to questions at the hearing from Counsel for the DPP Dr Grant stated that Mr Bosanquet might have known that others would not have approved of his actions but that he felt justified in his 4 26 February 1999 -- 19 of 22 -- 20 actions. Counsel for the DPP argues that if Mr Bosanquet knew that others would not have approved of his actions then such knowledge would deprive him of the defence on the basis of this incapacity. It was argued that his own view about whether he felt justified or not is not relevant to the question of whether he was deprived of the capacity to know he ought not do the act. In this regard Counsel relied on Dowsett J‟s approach in Re W when he concluded that the defendant was deprived of a defence in circumstances which included evidence that he knew that others would view his actions as wrong. [81] The conclusion in Re W obviously was based on the particular circumstances of that case and Dowsett J clearly does not alter the well known test as set out in Stapleton v The Queen5 and extracted in the passages set out above. The test is whether Mr Bosanquet was able to appreciate the wrongness of the particular act he was doing at the particular time. Could Mr Bosanquet be said to know in that sense whether his act was wrong or was he unable because of his mental illness to think rationally of the reasons which to ordinary people make that act right or wrong? It is clear that the test places the focus not on knowledge but on the capacity to reason. As Dixon J said in R v Porter6 “We are not dealing with right or wrong in the abstract. The question is whether he was able to appreciate the wrongness of the particular act he was doing at the particular time.” (my emphasis) [82] That test was also recently discussed by the Court of Appeal in Western Australian in the decision of Evans v The State of Western Australia7 in relation to directions to the jury in a murder case involving an insanity defence. “60 It is not easy to summarise the detailed discussion of authority in Stapleton in a way which is capable of being fashioned into an appropriate direction in every case of insanity. However, the principles extracted from that discussion appear to focus upon two issues. First, the ability to know that one "ought not" to do an act or make an omission is a capacity to know that one "ought not" to do it according to ordinary standards of right and wrong, rather than knowledge that the act is unlawful. As the High Court observed, from a practical point of view it often may not matter much, because in relation to serious offences the two ideas „are not easily separable‟ (at 375). However, in cases where, as here, the distinction may arise, it should be made. The second principle is that the capacity which must be found to be lacking is not merely a capacity to appreciate, in some abstract sense, that others would view the act as wrong. Rather, it is a capacity of the particular accused either to discern the difference between moral good and evil, or to "think rationally" of the reasons which would lead ordinary people to consider the act to be right or wrong. 61 In my view, the question in this case made it imperative that her Honour explain to the jury the two principles which I have described above. For completeness, I would add that it was not, in my view, necessary for her Honour to adopt the formula contended for by ground 2(b) of the grounds of appeal. Although a direction as 5 1952 86 CLR 358 6 (1933) 55 CLR 182 7 [2010] WASCA 34 -- 20 of 22 -- 21 to whether the accused was capable of reasoning "with some moderate degree of calmness" or, as it was put in Porter, with "a moderate degree of sense and composure" is sanctioned by authority, it may in some cases, in my view, run a risk of confusing the jury. That is because these offences generally take place in circumstances in which the accused is, plainly, not composed and not calm. The relevant issue is not whether the accused is, in fact, at the particular time, reasoning calmly and rationally. The question is whether the accused's mental condition is such that the accused is incapable of thinking in a rational way.” (my emphasis) [83] In my view in the particular circumstances of this case I do not consider that Mr Bosanquet was able to think rationally because of his underlying mental condition namely a manic exacerbation of his underlying bipolar condition. [84] The prosecution also argues that in Queensland because of the additional „volitional‟ capacity contained in s 27 the capacity to „know one ought not do the act‟ does not contain a requirement that the person be able “to reason with a moderate degree of sense and composure” or “to reason calmly and rationally about the matter.” It is argued that adding such a requirement in Queensland creates a „hybrid‟ test combining the capacities of „control‟ and „ought not do the act‟ into a single capacity “that offers a defence that is broader than the sum of its parts”. It is argued that such a phrase adds an element of deliberative choice into the moral capacity question and that the deliberative choice aspect should be left within the domain of the „control capacity‟. [85] The extensive written submissions provided by Counsel for the DPP provides an extensive historical case analysis to support this submission with particular reliance on the reasoning in R v Sodeman.8 I do not accept the submission from Counsel for the DPP that the test in relation to the capacity to “know one ought not do the act” does not contain the requirement that the person be able to reason with a moderate degree of sense and composure. In my view there is clear authority that the test which is now challenged by Counsel for the DPP is the accepted test. It was clearly recently approved in Evans. The only note of caution related to instructions to the jury. The Court noted that the test may run the risk of confusing a jury because the real issue is not whether the accused is reasoning calmly and rationally but whether they are incapable of thinking in a rational way because of their mental condition. [86] I consider that Mr Bosanquet was deprived on the capacity to know he ought not do the act at the time of the commission of the offences on 4 and 5 October 2010. [87] I am therefore satisfied that Mr Bosanquet was of unsound mind at the time of the commission of the alleged offences on both 4 and 5 October 2010. I am satisfied that he was deprived of both the capacity for control and the capacity to know he ought not do the act. [88] I am satisfied that a forensic order is required given the serious nature of the offences and the defendants continuing lack of insight into the true nature and extent of his illness. Limited community treatment is approved to commence immediately in the terms of the draft submitted by the Director of Mental Health. 8 (1936) 55 CLR 192 -- 21 of 22 -- 22 [89] I also consider that given the circumstances surrounding the alleged offences and the requirements of ss 313B(1) and 313C of the Act there should be an order that the defendant have no contact with the victims of the alleged offences whose names are set out in the application. ORDERS 1. That at the time of the three alleged offences on 4 October 2010 and 5 October 2010 the subject of the reference the defendant was of unsound mind as defined in the Schedule of the Mental Health Act 2000 (Qld). 2. That the defendant be detained in the Mackay Authorised Mental Health Service. 3. That limited community treatment is approved to commence immediately at the discretion of the authorised psychiatrist, on the conditions set out in the submission of the Director of Mental Health. 4. That the defendant have no contact with the victims of the alleged offences. -- 22 of 22 --