Cook, Re [2011] QMHC 29

MENTAL HEALTH COURT CITATION: Re Cook [2011] QMHC 29 PARTIES: REFERENCE BY THE DEFENDANT’S LEGAL REPRESENTATIVE AND THE DIRECTOR OF MENTAL HEALTH IN RESPECT OF STEWART ROBSON COOK PROCEEDING NO: 0100/10 DELIVERED ON: 17 March 2011 DELIVERED AT: Brisbane HEARING DATE: 16 March 2011 JUDGE: Ann Lyons J ASSISTING PSYCHIATRISTS: Dr J M Lawrence Dr E N McVie FINDINGS AND ORDERS: 1. There is a reasonable doubt within the meaning of s 268 of the Mental Health Act 2000 (Qld) that the defendant committed 132 of the alleged offences; 2. No orders pursuant to s 267(1)(a) of the Mental Health Act 2000 (Qld) in relation to the remaining five offences (numbers 126, 127, 128, 130 and 131 on the Schedule of Offences); 3. The defendant is fit for trial; 4. The proceedings for all of the alleged offences are to be continued according to law. COUNSEL: J Briggs for the defendant J Tate for the Director of Mental Health J Thomas for the Director of Public Prosecutions (Qld) SOLICITORS: Legal Aid Queensland for the defendant Crown Law for the Director of Mental Health Director of Public Prosecutions (Qld) ANN LYONS J: [1] This is a reference by the legal representatives and the Director of Mental Health in relation to Mr Stewart Cook. The initial reference was dated 27 April 2010. [2] Mr Cook is currently facing 137 charges, most of which are in the Southport Magistrates Court or Southport District Court. These offences commenced in May 2000 and continued up until August 2009. Most of those offences are offences of burglary or entering a dwelling to commit an indictable offence, stealing, possessing tainted property, breaches of bail conditions, dangerous operation of a motor vehicle, as well as possession of dangerous drugs and failing to dispose of a needle or syringe. -- 1 of 5 -- 2 [3] Mr Cook now indicates that he disputes the facts in relation to all but five of those offences. Those five offences are numbered 126, 127, 128, 130 and 131 on the Schedule of Offences. [4] Mr Cook is currently being held on remand at the Arthur Gorrie Correctional Centre and is a client of the Prison Mental Health Service. Mr Cook has a history of paranoid schizophrenia in the context of illicit substance abuse and antisocial personality disorder. He also has a history of poor compliance with medication and has treatment resistant psychotic symptoms. [5] A number of psychiatrists have prepared reports in relation to Mr Cook‟s offences over the last decade, namely Dr Kingswell, Dr Trenceva, Dr Kovacevic, Dr Wolfenden, Dr Curtis and Dr Butler. [6] Dr Kingswell‟s report dated 22 June 2006 addressed 62 of the charges which related to offences which occurred between November 2002 and June 2005. Dr Kingswell indicated that Mr Cook has a clear history of chronic paranoid schizophrenia as well as a history of substance abuse. Dr Kingswell also noted that he had served a number of prison terms and that Mr Cook‟s forensic history commenced at 17 years of age when he was charged with receiving and stealing. [7] Dr Kingswell stated that during the interview Mr Cook gave a history of being psychotically driven in relation to some of the offences. In particular, Mr Cook said that his hallucinatory experiences directed him to commit a number of property offences. Dr Kingswell, however, considered that Mr Cook‟s account should be rejected because the contemporaneous records indicate an illness characterised by persecutory hallucinations and delusions of reference, but there are no specific delusions in relation to property and other offending. Dr Kingswell also stated that it is impossible to rule out the impact of intoxication. Dr Kingswell noted that Mr Cook disputed the details of some of the property offences. Ultimately Dr Kingswell did not support a defence of unsoundness of mind and considered Mr Cook fit for trial. [8] In a report dated 11 February 2010 to the Director of Mental Health, Dr Trenceva addressed a further 87 offences. Dr Trenceva also diagnosed schizophrenia and antisocial personality disorder and indicated that whilst Mr Cook was anxious, there was no thought disorder. He noted that despite the fact Mr Cook complained of hearing voices, he was not able to elaborate further. Dr Trenceva did not consider there was a defence of unsoundness of mind available for any of those 87 charges. [9] Dr Kovacevic also prepared a report to the Mental Health Court dated 22 September 2010 in relation to the 122 charges which occurred in the period from November 2002 to January 2009. Dr Kovacevic referred to Mr Cook‟s belief that police could read his mind and that this was all part of a „game‟ which began back in 1990 and noted that Mr Cook had admitted that he had first started committing burglaries when he was about 18. Dr Kovacevic indicated that Mr Cook was able to deny some of the offences particularly the drug offences but admitted some as well. [10] Dr Kovacevic concluded that most of the offences were similar in manner and if Mr Cook was confronted about a particular offence, he never talked about delusional material in the context of that particular offence. Dr Kovacevic also noted the Prison Mental Health Service psychiatrist‟s report, which indicates inconsistencies -- 2 of 5 -- 3 between Mr Cook‟s reported symptoms and objective observations of his demeanour and interactions within the prison environment. Dr Kovacevic was unable to support a defence of unsoundness of mind due to the marked incongruity between his self report and other evidence. Dr Kovacevic considered Mr Cook was fit for trial. [11] Dr Clare Wolfenden in conjunction with Dr Darren Neillie prepared an extensive 33 page report dated 18 October 2010 which addressed 49 of the offences which occurred between November 2002 and June 2005. Dr Wolfenden noted that at the time of the offences Mr Cook was frequently non compliant with medication and was a habitual user of illicit drugs, primarily heroin. She considers however that Mr Cook would have had some active symptoms of schizophrenia at material times and this would constitute a mental disease for the purposes of the Mental Health Act 2000 (Qld) (the Act). Dr Wolfenden stated that the real question is whether or not there is a causative link between Mr Cook‟s symptoms and the offences. She considers that the resolution of this issue revolves around the weight given to Mr Cook‟s current self report as opposed to the contemporaneous medical records and other non-psychotically driven motives for offending. [12] Dr Wolfenden stated that Mr Cook has a long history of offending dating back to his adolescence and the offending precedes the onset of his mental illness. Furthermore his pattern of offending is characterised by prolific acquisitive offences and occurs on a background of poly-substance abuse and dependence and antisocial personality disorders. Dr Wolfenden noted that the nature of the alleged offences is not significantly different from his previous offending history as Mr Cook states he intentionally breaks into people‟s residence to steal their belongings. [13] Dr Wolfenden stated that Mr Cook now feels justified in committing many of the offences as he feels entitled to avenge the distress caused to him by others who read his mind. Dr Wolfenden noted however that the contemporaneous Prison Mental Health notes document vague and relatively low grade referential and persecutory delusions. She indicates this raises the question of possible retrospective elaboration of his symptoms in a motivation to be diverted from the prison system. [14] In conclusion, Dr Wolfenden noted that the offences do not significantly differ from his prior offending which dates back to adolescence and which precedes the onset of his illness. She stated that it is clear Mr Cook intentionally broke into people‟s places to steal their belongings. Dr Wolfenden concluded that in her opinion, on the balance of probabilities, Mr Cook would not have been deprived of the capacity to know the nature of the acts as defined under s 27 of the Criminal Code 1899 (Qld). Mr Cook has consistently denied believing that his behaviour at the time of the offences was in any way controlled by external means. Dr Wolfenden therefore considers that Mr Cook would not have been deprived of the capacity to control his actions at the material times. [15] Dr Wolfenden considered that the real dilemma in this case is establishing whether Mr Cook knew he ought not do the acts and that this essentially hinges on the weight given to his self report as opposed to the contemporaneous records. [16] Dr Wolfenden noted that it is clear that Mr Cook is a man with an antisocial personality disorder which has been associated with conning and manipulation, including the suspected fabrication or elaboration of psychotic symptoms for his -- 3 of 5 -- 4 own benefit. Dr Wolfenden concluded that this leaves a significant question mark over the veracity of his history. She also noted that an alternative explanation could be that of a non-psychotic motivation for his long history of acquisitive offending to fund his substance dependence. [17] Whilst Mr Cook claims he has not used illicit drugs since 2000 she considers that this is at odds with numerous statements he has made to treating psychiatrists at the relevant times and with Corrective Services records of breaches of prison protocol. Dr Wolfenden concluded that in weighing up all the information in the context of Mr Cook‟s past history of offending she was unable to say that Mr Cook was deprived of the capacity to know he ought not do the acts, nor that he was unable to reason with a moderate degree of sense and composure. She also noted that Mr Cook‟s current recollections and history of drug use are at odds with those documented in contemporaneous medical notes. She is also therefore unable to state with any confidence that Mr Cook would not have been intoxicated. She also considers he is fit for trial. Those views were confirmed in an update Report dated 2 March 2011. Dr Wolfenden also indicated that Mr Cook is currently fit for trial and that he meets the R v Presser1 criteria. She stated that Mr Cook‟s mental state is currently stable in the context of compliance with treatment and abstinence from illicit drugs whilst in custody. [18] Dr Curtis also prepared reports dated 26 September 2006 and 9 March 2011. Dr Curtis concluded that from the viewpoint of two examinations over a four year period, he could not support a defence under s 27 of the Code. He also stated that it was impossible due to co-morbidity to state in any one instance the role of intoxication. He considered that Mr Cook was “unconvincing in linking his abnormal mental content to his criminal behaviour”. [19] Dr Butler also prepared a report to the Court dated 24 March 2010 and gave evidence to the Court. Dr Butler considers that Mr Cook has enduring features of paranoid schizophrenia, which were present at the time of the offences, and therefore he was suffering from a mental disease at the time of the offences. Dr Butler indicated that Mr Cook acknowledged that he committed most of the break and enter offences but that he believed that he was influenced by “the game” and that the police knew what he was planning and “picked up on his guilt” and used it against him. He believed that he had “a green light to take things” because he was allowed to retaliate against people who had invaded his mind. He stated that people knew that he was coming and would leave money for him. He said that they would be thinking “he is coming tonight, let‟s leave this for him”. [20] Dr Butler considered that the genesis of his property offending was a belief that his behaviour was influenced by his delusional belief system in “the game”, notwithstanding his involvement in offending pre-morbidly. Dr Butler considered that Mr Cook believed that the normal rules of conduct approved by society did not apply to his offending because the police were aware of it and he had been given the green light. [21] Dr Butler therefore initially concluded that, on the balance of probabilities, he believed that Mr Cook was deprived of the capacity to know that he ought not to have committed the acts. However during his oral evidence to the Court Dr Butler 1 [1958] VR 45. -- 4 of 5 -- 5 indicated that he had had an opportunity to consider the further material which had been supplied and his current view was that whilst Mr Cook may have had an impaired capacity in this regard his capacity was not fully deprived. He did not consider that his behaviour was directed by passivity or command phenomena, and he believes he understood the nature of his behaviour, even though the basis for its commission was influenced by delusions. [22] Dr Butler, therefore, is not currently satisfied that he was deprived of any of the capacities so as to found a finding of unsoundness of mind. Whilst he initially considered that Mr Cook was of unsound mind in relation to the break and entering offences, the car stealing, and the wilful damage charges he now concedes that there is insufficient evidence to be satisfied of a total deprivation of this capacity rather than an impairment. [23] Dr Butler does not believe that he had the same beliefs at the time of the dangerous driving charges because he understood it was illegal to drive through a traffic light. Dr Butler does not believe therefore that he was deprived of any of the three capacities with reference to the driving offences. He did not consider that any of the other offences were influenced by delusional thinking. He also considered he was fit for trial. [24] Both of the assisting psychiatrists advised that it was clear that Mr Cook has a history of a chronic schizophrenic illness since possibly 1994 with a criminal history which commenced in 1989. It was noted by both Dr McVie and Dr Lawrence that all psychiatrists who had provided reports now essentially agreed that there was no evidence to support a finding of unsoundness of mind. Furthermore there was a clear consensus that Mr Cook was currently fit for trial. It was noted that Mr Cook disputes a number of the offences but that none of the psychiatrist considered that the dispute of fact arose as a result of his mental condition. [25] Section 268(1) of the Act provides that the Court must not make a decision under s 267(1)(a) if the court is satisfied that there is a reasonable doubt the person committed the alleged offence. It is clear that Mr Cook disputes 132 of the 137 offences which were referred to this court. Accordingly no decision can be made in relation to those disputed offences. [26] In relation to the other five offences which are noted as numbers 126, 127, 128, 130 and 131 on the Schedule of Offences it is clear that on the basis of the six psychiatrists reports as well as the views of the assisting psychiatrist that there is not sufficient evidence before this Court to support a finding of unsoundness of mind pursuant to s 27 of the Code. Accordingly no decision can be made in accordance with s 267(1)(a) of the Act. [27] Accordingly all offences the subject of the reference should continue according to law. -- 5 of 5 --