CBP, Re [2010] QMHC 48

MENTAL HEALTH COURT CITATION: Re CBP [2010] QMHC 48 PARTIES: REFERENCE BY THE DEFENDANT’S LEGAL REPRESENTATIVE IN RESPECT OF CBP PROCEEDING: No 105 of 2010 DELIVERED ON: 1, 7 December 2010 DELIVERED AT: Brisbane HEARING DATE: 1 December 2010 JUDGE: Philippides J ASSISTING PSYCHIATRISTS: Dr J M Lawrence Dr E N McVie FINDINGS AND ORDER: 1. That the defendant was not of unsound mind nor of diminished responsibility at the time of the alleged offences as defined in the Mental Health Act 2000 (Qld). 2. That the defendant is fit for trial. 3. That the proceedings in respect of the alleged offences should continue according to law. CATCHWORDS: MENTAL HEALTH – DECLARATION OR FINDING OF MENTAL ILLNESS OR INCAPACITY – where defendant charged with murder and malicious acts intended to cause grievous bodily harm – where defendant was aged 16 at the time of the offences – where defendant stabbed a 15 year old boy in the back with a bayonet – where opinion of expert psychiatrists differed as to whether defendant suffered from a conduct disorder and personality disorder or a prodrome of Schizophrenia – where opinion of expert psychiatrists was that at the time of the alleged offences, the defendant was not of unsound mind or of diminished responsibility – whether defendant suffered from a psychotic illness at the time of the offences – whether the defendant was of unsound mind or diminished responsibility as described in the Mental Health Act 2000 (Qld) – whether defendant is fit for trial Mental Health Act 2000 (Qld), Schedule 2 COUNSEL: K Prskalo for the Defendant J Tate for the Director of Mental Health S Bain for the Director of Public Prosecutions (Qld) SOLICITORS: Legal Aid Queensland for the Defendant Crown Law for the Director of Mental Health The Director of Public Prosecutions (Qld) -- 1 of 5 -- 2 PHILIPPIDES J: [1] The defendant is charged with murder and malicious acts intended to cause grievous bodily harm, on 27 November 2009. [2] The defendant stabbed a 15 year old, B, in the back with a bayonet. When two males came to aid the victim, one of them, P was stabbed in the upper back. The defendant brandished the bayonet at P, and said words to the effect of, “do you want some of this?”. B was taken to the hospital for an emergency surgery, but died soon after. [3] It seems that shortly before the events in question, the defendant had become angry after an argument with his mother and had left his house, taking the bayonet. The defendant’s mother called 000 to inform police that her son was armed with a bayonet and that he was dangerous and might hurt someone. [4] The defendant told the police who apprehended him that he heard voices in his head urging him to stab people. The defendant also told police that he had selected B as he was unaccompanied, and he told police that he had intended to run on to the highway and throw himself under a truck. [5] The defendant was remanded at the Gympie watch house overnight, then in the Brisbane Youth Detention Centre (“BDYC”), where he has remained. [6] The defendant reported long standing violent dreams and thoughts of torturing and killing male victims. The defendant reported that he had been “thinking about killing someone, what it would be like to kill someone, ways to do it, how to do it, how to do it without being caught”. He reported experiencing thoughts, dreams and daydreams about killing people for about 18 months before the events in question. He gave varying descriptions of a voice or voices telling him to kill, which became prominent when he was angry. He also reported numerous episodes of violence and cruelty to animals. [7] Dr Stathis is the defendant’s treating psychiatrist. Dr Stathis considered that the defendant suffered from an extremely severe Childhood Onset Conduct Disorder. He did not however find any evidence that the defendant suffered from Attention Deficit Disorder with Hyperactivity (“ADHD”). [8] In his report of 2 September 2010, Dr Stathis referred to the accounts of the defendant’s family members, which in his view, described either a prodromal or psychotic symptoms characterised by social withdrawal and the presence of auditory hallucinations. Dr Stathis opined that the defendant suffered from a psychotic illness, referring to the defendant’s history of previous intrusive, repetitive command hallucinations that increased with intensity and frequency prior to him committing the offence. Dr Stathis also stated that the defendant’s response to anti-psychotic medication was in keeping with a psychotic illness. [9] I note, however, that Dr Stathis’ oral evidence was that he was unable to offer an opinion as to whether the defendant was suffering from a mental illness at the time in question. [10] Dr Beech provided reports dated 3 April 2010 and 3 September 2010. Dr Beech opined that the defendant most likely had ADHD. He also noted the defendant’s -- 2 of 5 -- 3 history of disruptive behaviour which had progressed from oppositional behaviours to more frankly overt anti-social acts and juvenile delinquency. In Dr Beech’s opinion, the defendant suffered from a serious Conduct Disorder. [11] Dr Beech noted that the defendant described auditory perceptual abnormalities and that the defendant’s family reported that these were present before the events in question. Dr Beech also noted that there was significant social decline and that there was evidence of significant disturbance in personality development with childhood disruptive behaviour, affective disturbance, sexually deviant behaviour, and impaired social functioning. [12] Initially, Dr Beech was of the view that the defendant had developed a childhood onset of Schizophrenia. However, he altered his position in his second report. Dr Beech observed that a critical question in terms of diagnosis was whether the defendant’s disturbance, social withdrawal, sleep change, increasing violent fantasies and auditory perceptual abnormality reflected a prodrome of a psychotic illness, especially Schizophrenia, that had been aborted by the commencement of risperidone soon after his detention. He noted that the level of disturbance in the defendant’s effect, thought content, behaviour, and social interaction and the description by the defendant of the voices, together with his response to medication, could be seen as supportive of a prodrome. However, against that proposition, Dr Beech noted the absence of any clear objective evidence of psychosis when the defendant was seen by Dr Campbell before the incident and by Dr Stathis soon after. [13] Dr Beech stated that, clinically, he would not be surprised if the defendant were to become frankly psychotic, noting that the defendant’s level of disturbance and his thought and perceptual abnormalities were highly suggestive of the antecedents of Schizophrenia. Nevertheless, Dr Beech concluded: “I believe that, more likely than not, the constellation of symptoms and signs at the time of the alleged offences were either the sentinel symptoms (symptoms that occur for a short period and then remit before later recurring and progressing) or prodrome (symptoms at the early stage of a progressing illness) of Schizophrenia. I think it is likely though that the symptoms of thoughts and perceptual abnormalities meshed with a pre-existing Conduct Disorder and associated longstanding violent fantasies (comfortable thoughts as opposed to obsessions that would be resisted) so that they were syntonic with his personality.” [14] In his oral evidence, Dr Beech stated that he was unable to conclude on the evidence that the defendant suffered from a mental illness or an abnormality of mind at the relevant time. [15] Moreover, regardless of whether the defendant’s symptoms could be seen as representing the signs of a mental illness, or the abnormality of mind leading to the personality disturbance of an emerging anti-social personality disorder, Dr Beech was clear in his evidence that he could not conclude that the defendant would have been deprived of the capacity to control his actions, understand their nature, or know they were wrong. Nor did he consider that there was a substantial impairment of any capacity. -- 3 of 5 -- 4 [16] Dr van de Hoef provided a report dated 20 July 2010. Dr van de Hoef considered that there was clear evidence that the defendant from middle childhood had features of Conduct Disorder of Childhood and likely not a severe Anti-social Personality Disorder. She also diagnosed ADHD. [17] Dr van de Hoef also considered the possibility that the defendant may suffer from a schizophrenic illness (possibly prodromal when seen by Dr Campbell before the event in question) which might account for the report of voices, as well as sleep disturbance, mood lability and rage, particularly in the 18 month period preceding the offences. While Dr van de Hoef opined that there was much in the defendant’s history that suggested he was at risk of developing a major mental illness, she was not however persuaded that there was enough evidence to support the view that the defendant suffers from Schizophrenia. Moreover, she could find nothing in contemporaneous accounts to support the idea that the defendant was out of touch with reality by virtue of psychotic illness, nor of a dissociative episode when he committed the offences. Dr van de Hoef noted that the low dose of risperidone the defendant had been taking in BYDC might have ameliorated early low grade non- specific symptoms of an emerging psychosis, but would not be as effective in a full blown psychotic disorder. [18] Dr van de Hoef opined that at the time of the alleged offences, the defendant was not suffering from a state of mental disease and that the defendant’s mental condition did not deprive him of any of the relevant capacities. Additionally, Dr van de Hoef was unable to conclude that there was any substantial impairment of capacity, and discounted diminished responsibility. [19] Dr Wakefield provided a report dated 25 October 2010 and gave evidence. He noted that the defendant had a lifelong history of externalising behavioural disturbances, and that the defendant’s cruelty to animals began at age 6 and escalated significantly at age 15. He also noted that the defendant described a sense of excitement when he was torturing and killing animals with a knife. Dr Wakefield diagnosed severe conduct disorder of early onset that will graduate to an anti-social personality disorder when the defendant turns 18. He was also inclined to diagnose ADHD. He noted that even in the BDYC on anti-psychotic medication, the defendant still described a sense of excitement and pleasure thinking about killing people with a knife and that he would probably do it again if he thought he could get away with the act. [20] Although he noted that the defendant may well go on to suffer from a psychotic disorder in the future, Dr Wakefield was of the view that there was not enough evidence to support a diagnosis of a psychotic disorder before or after the offences in question. He considered that the reports of voices should be seen as pseudo- hallucinations, noting that the voices were not reported as frightening but rather as giving pleasure. Moreover, the defendant was seen both before and after the incident by two experienced clinicians, who did not find psychotic symptoms to be present. [21] Dr Wakefield was firmly of the view that there was no deprivation of any capacity. In particular, he noted that the defendant knew that his actions were wrong and that he could have controlled them if he had wanted to. He did not consider there to be substantial impairment. Accordingly, he did not support a defence of unsoundness of mind or diminished responsibility. -- 4 of 5 -- 5 [22] All of the reporting clinicians considered that the defendant suffered from a conduct disorder. Whilst there was a difference in opinion as to whether the acts in question ought to be seen in the context of conduct disorder and personality disorder or a prodrome of Schizophrenia, none of the clinicians were able to offer an opinion that at the relevant time the defendant suffered from a mental illness, nor that an abnormality of mind was present. Furthermore, there was no clinical support for either deprivation of capacity or substantial impairment of capacity at the material time. [23] In those circumstances, I find that the defendant was not of unsound mind nor of diminished responsibility at the relevant time. The defendant is fit for trial. Accordingly, the proceedings will continue according to law. -- 5 of 5 --