Clay Re [2008] QMHC 19

MENTAL HEALTH COURT CITATION: Re Clay [2008] QMHC 19 PARTIES: REFERENCE BY THE DIRECTOR OF MENTAL HEALTH IN RESPECTOF BEVAN JAMES CLAY PROCEEDING: Proceeding No 0294 of 2006 DELIVERED ON: 2 June 2008 DELIVERED AT: Brisbane HEARING DATE: 2 June 2008 JUDGE: Philippides J ASSISTING PSYCHIATRISTS: Dr F Varghese Dr E N McVie FINDINGS AND ORDER: 1. In respect of the alleged offences of attempted enter premises with intent, possession of a knife in a public place, assault occasioning bodily harm whilst armed in company, and common assault: a. the defendant was of unsound mind as described in Schedule 2 of the Mental Health Act 2000 (Qld) (“the Act”) at the time of the commission of those alleged offences b. the defendant be detained as a forensic patient to the Townsville Network Authorised Mental Health Service c. limited community treatment be approved to commence immediately on the terms outlined in the submission provided to the Court by the Director of Mental Health. 2. In respect of the alleged offence of wilful damage: a. the defendant was not of unsound mind as described in Schedule 2 of the Mental Health Act 2000 (Qld) (“the Act”) at the time of the commission of the alleged offence b. the defendant is fit for trial c. proceedings in respect of that offence are to continue according to law CATCHWORDS: MENTAL HEALTH – DECLARATION OR FINDING OF MENTAL ILLNESS OR INCAPACITY – where psychiatric opinion indicated the defendant suffered from a severe schizophrenic illness – whether defendant is of borderline intelligence or suffering organic brain damage – whether the defendant experienced persecutory ideation – whether the defendant was of unsound mind as defined in Schedule 2 of the Mental Health Act 2000 (Qld) at the time of the alleged -- 1 of 3 -- 2 offences - whether forensic order should be made – whether limited community treatment should be approved –– whether the defendant is fit for trial Mental Health Act 2000 (Qld), Schedule 2 COUNSEL: Mr J Farmer for the defendant Mr R O’Regan for the Director of Mental Health Mr S Vasta 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] PHILIPPIDES J: Bevan James Clay is charged with wilful damage on 31 August 2006, attempted enter premises with intent on 12 November 2006, possession of a knife in a public place, assault occasioning bodily harm whilst armed in company, and common assault, all on 12 November 2006. [2] The medical opinions before the Court indicates that the defendant suffers from a severe schizophrenic illness. Dr Stephenson was of the view that the illness was best described as one of disorganised schizophrenia. She did not support a finding of unsoundness of mind in relation to any of the alleged offences. [3] Dr Fama diagnosed paranoid schizophrenia and borderline intelligence. He did not support a defence in relation to the alleged offence on 31 August 2006. In his view, on that occasion the defendant acted out of anger and his conduct was not associated with any psychosis or mental illness. [4] However, Dr Fama did support a finding of unsoundness of mind in relation to the alleged offences of 12 November 2006. He considered that at the relevant time the defendant was, as a result of his mental illness, deprived of the capacity of control and the capacity to know he ought not to do the acts. Dr Fama reports that at the time the defendant was suffering from persecutory ideation and gave an account that he believed that the complainants were going to kill him. He was also suffering from auditory hallucinations. He believed he had heard the voice of God and that he was the only one left on Earth except for his young stepbrother. [5] Dr Fama observed that when interviewed by the police soon after the incidents the defendant gave a similar account, stating that the complainants were going to kill him. Dr Fama attributed these beliefs to persecutory delusions, the result of his mental illness. He also observed that when seen in the watch-house the defendant exhibited behavioural disturbances and was observed to be seriously thought- disordered, a matter Dr Stephenson also referred to in her report. [6] Dr Fama also commented on the account given by Dr Stephenson of the defendant’s inappropriate responses when questioned by her about the charges in January 2007. This consisted of inappropriate laughing and childish behaviour, which Dr Fama saw as consistent with hebephrenic schizophrenia. -- 2 of 3 -- 3 [7] On balance I prefer the opinion of Dr Fama over that of Dr Stephenson. I note that Dr Stephenson's report of the incidents the subject of the charges does not reflect the material in the QP9. She reports that the assaults occurred when the defendant was observed to opportunistically take the chance, as it were, to steal something, whereas in fact the QP9s make it clear that there was a substantial time period between the defendant's attempted breaking into the premises and the subsequent assaults that took place. [8] I also note that Dr Stephenson was unable to elicit information of the persecutory ideation that Dr Fama obtained, and that the police also received an account in accordance with the report that Dr Fama obtained. [9] Furthermore, I note that when Dr Stephenson saw the defendant in December 2006, some three weeks after the alleged offences of November 2006, the defendant was, in her view, totally non-functional and still incoherent, so much so that she wondered whether the defendant was intellectually disabled or whether there was organic brain damage. Those diagnoses have now been discounted, but reflect the serious nature of the symptoms that the defendant was still exhibiting. [10] I also note that when the defendant was seen by Dr Stephenson in January 2007 for the purposes of her second report the defendant was still so ill that she considered him to be not fit for trial. [11] Those matters, in my view, support the diagnosis and opinion offered by Dr Fama, which was endorsed by the assisting psychiatrists. [12] In the circumstances, I find that the defendant was of unsound mind at the time of the November 2006 offences. [13] I consider that, given the serious nature of the offences in question involving the use of a knife and quite potentially serious consequences, the defendant's history of drug and alcohol use, the clear need for ongoing treatment and the need to protect the community, a forensic order is warranted in this case. [14] I order that the defendant be detained to the Townsville Network Authorised Mental Health Service. [15] I approve limited community treatment to commence immediately on the terms outlined in the submission provided to the Court from the Director of Mental Health. [16] In relation to the charge of the 31st August 2006 I find that the defendant was not of unsound mind. The defendant is fit for trial. That proceeding will continue according to law. I grant leave to the parties to use the medical reports before the Court in further proceedings. -- 3 of 3 --