DAY, Re [2008] QMHC 25

MENTAL HEALTH COURT CITATION: Re DAY [2008] QMHC 25 PARTIES: REFERENCE BY THE DEFENDANT’S LEGAL REPRESENTATIVES IN RESPECT OF DAY PROCEEDING NO: No 0254 of 2006 DELIVERED ON: 29 February 2008 DELIVERED AT: Brisbane HEARING DATES: 7, 8, 18 February 2008 JUDGE: Philippides J ASSISTING PSYCHIATRISTS: Dr Varghese Dr McVie FINDINGS AND ORDERS 1. That at the time of the alleged offences the defendant was not of unsound mind as described in Schedule 2 of the Mental Health Act 2000 (Qld); 2. That at the time of the alleged offences the defendant was not of diminished responsibility as described in Schedule 2 of the Mental Health Act 2000 (Qld); 3. That the defendant is fit for trial; 4. That the proceedings continue according to law. CATCHWORDS: MENTAL HEALTH – DECLARATION OR FINDING OF MENTAL ILLNESS OR INCAPACITY – where defendant charged with two counts of murder and one count of attempted murder – where conflicting psychiatric evidence as to whether the defendant was suffering from a depressive disorder of a psychotic nature, major depressive disorder, adjustment disorder, reactive depression – whether factual basis of psychiatric opinions was so in dispute that it would be unsafe to make a decision as to whether the defendant was of unsound mind or of diminished responsibility – whether defendant was of unsound mind at the time of the offences – whether defendant was of diminished responsibility at the time of the offences Criminal Code 1899 (Qld), s 27, s 304A Mental Health Act 2000 (Qld), s 269, Schedule 2 Attorney General v Kamali (1999) 106 A Crim R 269, cited McDermott v The Director of Mental Health; ex parte A-G (Qld) [2007] QCA 51, considered R v Byrne [1960] 2 QB 396, followed Re CWB [2003] QMHC 12, considered R v Ford [1972] QWN 5, considered -- 1 of 16 -- 2 Re GAH [2005] QMHC 11, cited Re GMB [2002] QMHT 1, considered Re H, Mental Health Tribunal, 19 January 2001, cited R v Rolph [1962] Qd R 262, followed R v Schafferius [1987] 1 Ad R 381, cited R v Whitworth [1989] 1 Qd R 437, followed COUNSEL: Mr M J Byrne SC for the defendant Mr W Isdale for the Director of Mental Health Mr S J Hamlyn-Harris for the Director of Public Prosecutions SOLICITORS: Gilshenan & Luton for the defendant Crown Law for the Director of Mental Health The Director of Public Prosecutions (Qld) *Appeal to Court of Appeal dismissed, R v DAY [2010] QCA 369 Philippides J: [1] The defendant is charged with the murder of two of her children and the attempted murder of a third child between 20 November 2002 and 22 November 2002. The matter of the defendant’s mental state at the time of the alleged offences has been referred to this Court. [2] The deceased children aged 10 and 8, were found in the rear seat of the defendant’s vehicle, which was located in the garage of the family home. They died as a result of carbon-monoxide poisoning. A hose was found attached to the exhaust of the vehicle. The defendant and the third child, A, who was aged 16 and who suffers from an intellectual disability, were found inside the house. Suicide notes in the defendant’s hand were located in the house. [3] It appears that the defendant had given the children sleeping tablets obtained as a result of having an old prescription filled. She had ground the tablets, put them in milk which she gave to the children, and had then taken them for a drive. When she returned home she fixed the hose to the car. The defendant herself had not taken any sleeping tablets. She was able to recall becoming sick and falling out of the vehicle. She noticed at one stage that A was not sitting in the passenger seat. She made her way into the house where she collapsed. The defendant suffered carbon- monoxide poisoning, renal failure and a right leg compartment syndrome, which required urgent fasciotomy. Medical evidence Redcliffe Hospital [4] The defendant was admitted to the Redcliffe Hospital on 22 November 2002 and was seen by Dr Slack, Consultant Psychiatrist at the Intensive Care Unit on 23 November 2002. -- 2 of 16 -- 3 [5] The material indicates that the defendant had had an unharmonious marriage which ultimately resulted in an acrimonious divorce. The defendant and her former husband were engaged in a drawn out and bitter custody dispute in respect of the children. To Dr Slack the defendant reported that she last felt well nine months previously when she had first moved to her place of residence. Over the last nine months, she reported being under considerable stress because of the custody dispute. She stated that she had deteriorated in the month before the events in question because of the added stressors of finding out that she had to move out of her rented house on short notice and receiving a large bill for legal fees for a January court hearing. A further stress was finding out that she would not have the children for Christmas as her husband had received custody for the first half of the holidays. She had also been involved in a recent brief relationship which had ended in the previous week, when she found out that the person was already involved in a relationship. The defendant stated that she had been “stressed out” and had not been eating well and had lost six or seven kilograms over the previous six months. Her sleep had been reasonable, but she found that she was worrying constantly and felt that her situation was irredeemable and hopeless. She said that, “There was no way out.” She reported that she could not enjoy anything, such as watching television, reading, or any of her usual pursuits. She told Dr Slack that some days prior to the events in question she had formed a plan to commit suicide. [6] Dr Slack considered that the defendant presented with the cognitive, behavioural and neuro-vegetative features of a Major Depressive Episode, occurring in the context of multiple psycho-social stressors. Dr Slack, however, accepted that the defendant’s presentation to him was also consistent with bereavement and the realisation of what she had done. He diagnosed a Major Depressive Episode of moderate severity, but found no psychotic or melancholic features, although in oral evidence he expressed some ambivalence about the latter conclusion. His differential diagnosis was of an Adjustment Disorder with mixed emotional disturbances. He considered that the defendant was, as a result of her depressive condition, deprived of the capacity to know that she ought not to do the acts and was substantially impaired in the capacity to control her actions. Princess Alexandra Hospital [7] The defendant was admitted to the Princess Alexandra Hospital on 28 November 2002. The following day, she was examined by the staff psychiatrist, Dr Evans, who took a detailed history. The hospital notes record the defendant as reporting having lost interest and enjoyment progressively so that she was no longer actively playing with her children and was not seeing friends. The notes refer to “changes in cognitive processes”, “increasingly miserable and hopeless thoughts”, “denies psychotic symptoms”, and that in the two weeks prior to the events in question the defendant “became firmer in the belief that the death of herself and her children was ‘the only way … I thought no one would suffer’.” Dr Evans noted that, “The actual decision probably occurred close to the event – ‘something clicked’.” The precipitants to the event were noted as being essentially the same as reported to Dr Slack: the ongoing custody dispute, feeling unjustly accused of poor parenting, the stress of needing to find new rental accommodation, investigation for abnormal Pap smear, and embarrassment over a failed relationship in the week before the index offences. Dr Evans’ diagnosis was of Major Depression, with no evidence of psychosis, no gross cognitive impairment and “few melancholic features”. Antidepressant medication was prescribed and the recommendation was made that -- 3 of 16 -- 4 the defendant be transferred to the psychiatric inpatient unit at the John Oxley Memorial Hospital. [8] On 13 December 2002, Dr McDonald saw the defendant and noted the psychiatric opinion that the defendant had suffered a Major Depressive Illness. The defendant was not considered a candidate for an Involuntary Treatment Order and agreed to treatment. John Oxley Memorial Hospital [9] The defendant was transferred to the John Oxley Memorial Hospital on 13 December 2002. The hospital notes on admission to the Whitlock Unit record depressive episodes after the defendant’s marriage break up and custody dispute, a strong family history of suicide, no psychotic features, “hopeless about future” and a diagnosis of Depressive Disorder “with delusion of hopelessness and melancholia”. [10] On his first comprehensive review on 18 December 2002, Dr Heffernan recorded that she did not seem pervasively depressed. He recorded the defendant as reporting being depressed for a long time and being worse over the two months before the events in question. She reported, “All I could think about was losing the children. I’d devoted my life to them”. In relation to the events of the day in question, the notes record: “suddenly came into my head”, “couldn’t see a future”, a perceived rejection from a suitor, who “flew off with girlfriend on that day”, “felt frightened and angry about loss of children”, “lost faith in justice”, “didn’t want children to suffer”, “didn’t want ex-husband to have them”, “angry about loss of children over Christmas”, “went to lunch – had 2 bourbon and coke over 3 hours”. [11] The hospital notes of 1 January 2003 record the following feelings towards the defendant’s former husband: “wanted him … to suffer the way I had suffered”, “If I had killed him, I would go to jail and the kids would go to foster homes, he would still have won”. On 2 January 2003, the notes record, “Major Depressive Episode with melancholic features (resolving)” and themes of anger against the former husband continue; “expressed anger toward ex-partner – discussions regarding ‘winning or losing’ in relation to ex-partner”. [12] On 3 January 2003, notations were made of reports of “symptoms of depression such as feeling ‘empty’ or numb, not sleeping at night, not eating for anything up to four days at a time”. Also recorded is “Intense anger at her husband for betraying her and leaving her…”. The defendant was also reported as saying that she “didn’t plan to kill the children, did it impulsively, wanted to die with them”. [13] She was discharged on 6 February 2003 with diagnosis of Major Depressive Episode (resolved), Borderline Personality Disorder, right leg compartment syndrome, and relationship difficulties with mild impairment. She was prescribed an antidepressant, Efexor, and subsequently reviewed by Dr Burton who maintained her on that medication. Dr Curtis [14] The defendant was first seen and assessed by Dr Curtis on 29 November 2002. He provided a report dated 13 April 2004 and a further report dated 28 May 2004. -- 4 of 16 -- 5 Dr Curtis made an Axis I diagnosis of Major Depressive Disorder at the material time. Dr Curtis considered that the defendant’s depression was not an acute grief reaction and that it predated the alleged offending behaviour. He also made an Axis-II diagnosis of Personality Disorder, noting that the defendant had a “serious personality psychopathology, including paranoid, narcissistic and avoidant traits”. [15] I note that, although Dr Curtis opined in his report that the defendant had a severe Major Depressive Disorder, when questioned by Dr Varghese he modified his opinion as to its severity, stating it was “of a moderate range”, and explaining, “If you look at Dr Slack’s observations and my own and those of Dr Evans, you can’t really score it higher than that”. [16] Dr Curtis outlined various psychosocial and environmental problems confronting the defendant and opined that the defendant “perceived herself to be overwhelmed by stressors and to be in an extreme state which required her death and the death of her children”. The report given by the defendant to Dr Curtis was largely similar to that given to Dr Slack and Dr Evans. She said that she had started to feel unwell for about nine months when she had moved to Bribie Island with her children. In his report, Dr Curtis outlined in detail the various stressors experienced by the defendant, including that she was distressed in respect of several relationships with men, a recent pregnancy which resulted in termination, accommodation problems, and her anxiety in relation to the Family Court custody dispute and the Court’s decision precluding her from having any access to her children on Christmas Day. She was also attempting to run a car detailing business so as to give her retarded son employment. These stressors, he considered, led to increasing depression and distress in the weeks preceding the events in question and to the development of a Major Depressive Disorder, with weight loss, anhedonia, and suicidal thinking. She reported poor appetite with weight loss of seven kilos over a six month period. On the Global Assessment of Functioning Scale, he placed her on a score of 30; “behaviour was probably influenced by abnormal mental content and serious impairment in communication or judgment”. He noted that the defendant was a long-standing mild cannabis user. She was experiencing excessive worrying, feeling hopeless and developed the belief that there was no way out of her problems. Dr Curtis placed particular emphasis on the defendant’s family history of depression and completed suicide and opined that the defendant had a genetic vulnerability arising therefrom. [17] In his report he noted that the defendant had formed the plan to kill herself and her children some days prior to events in question. However, in oral evidence he qualified that notation, indicating that he was unsure that the defendant had spoken in those terms and that he was inclined to the view that the defendant’s actions were more precipitous. [18] Dr Curtis concluded in his report and maintained in oral evidence that the defendant’s depression was of a “psychotic depth in terms of how she thought about herself and the children in the context of life and death”. He identified psychotic features he considered to be present before and during the relevant period, as follows: “[The defendant] told me her reasoning for the murder/suicide behaviour was based upon her inability to see how the children could survive separated from her. The reasoning appeared to be: the children will die without me. I am as good as dead, eclipsed from -- 5 of 16 -- 6 the world. I am going to complete my suicide. The children and I are inseparable. Therefore we all must die”. [19] Dr Curtis also, in oral evidence, relied on the concept of authochonous delusion, a suddenly formed delusion appearing without related thoughts, as pertinent to the defendant’s state of mind. [20] Dr Curtis thus supported a finding of unsoundness of mind, considering that the defendant was, as a result of her Major Depressive Disorder, deprived of the capacity to control her actions and to know she ought not to do the acts in question. [21] I note that Dr Curtis conceded that the defendant had expressed to him (and to others, quite consistently over the months in the Whitlock Unit) quite a deal of anger towards her former husband. In his report, Dr Curtis stated that the defendant told him that dealing with her own survival and the deaths of her children was not part of the plan. He recorded that, “The separated husband was supposed to be dealing with the deaths of all of them”. She told Dr Curtis that she believed that her ex-husband would have liked her to just do herself in and that he had already destroyed her life. In his report, Dr Curtis also recorded that the defendant’s “reasoning for the deaths of her and her children was that she and her children would not have to suffer any more through [her ex-husband]” and that he had allegedly made her life hell, taken her backwards and forwards to court, and that she believed that she had been tricked about Christmas. Dr Reddan [22] In her report of 25 October 2004, Dr Reddan concluded that the defendant did not suffer from a mental disease at the relevant time and there was no evidence of deprivation of any of the three capacities. [23] Dr Reddan observed that in the period leading up to the alleged offences, the defendant reported feeling increasingly depressed and worried about a number of problems and that her emotional state at that time could be characterised as an Adjustment Disorder with mixed disturbance of emotions and conduct. [24] Dr Reddan found no evidence of psychosis at the relevant time. She observed that the suicide notes left by the defendant revealed no psychosis. She found the defendant an unreliable historian and concluded that her observed social behaviour in the period preceding the events in question, including visiting and seeking out friends and seeking out relationships, was inconsistent with melancholic depression. Dr Reddan noted discrepancies as to whether the defendant had suffered weight loss, but did not place much emphasis on that particular factor, observing that the picture was complicated by her use of Duromine. [25] Dr Reddan cautioned that the defendant’s mental state, as described by those who attended to her while in hospital, did not necessarily mirror that at the time of the index offences, given that the defendant was suffering serious injuries, was aware of the outcome of her actions, and was being medicated. Nevertheless, Dr Reddan accepted that for some time before the offences, the defendant could have been developing depression of a non-melancholic type. While Dr Reddan preferred the diagnosis of Adjustment Disorder, she agreed that the boundaries between that condition and a mild to moderate Major Depressive Episode of a non-melancholic -- 6 of 16 -- 7 type were unclear, and was prepared to accept that such depression may have been present. [26] Dr Reddan also diagnosed Personality Disorder with significant borderline and narcissistic personality traits. In her report she described primitive or immature defence mechanisms with a tendency to marked anger, idealisation, devaluation, and in particular to projection. She described a tendency to form rapid, although shallow attachments, and to feel threatened by implied or real abandonment. Dr Reddan noted the report of cannabis use and opined that, while it was likely that she was chronically intoxicated with this drug, there was no evidence that intoxication played any role in the commission of the offences. [27] Dr Reddan noted that the defendant implied that once the idea of killing her children and herself occurred to her, she felt quite drawn to the idea as a solution to her difficulties. Nevertheless, Dr Reddan discounted that account to some extent, observing that she found it difficult to accept that there had not been some time spent in undertaking the activity and thinking how to implement it. While Dr Reddan observed that there was little doubt that a major aspect of the defendant’s motivation was to hurt her former husband, I note that Dr Reddan also stated in oral evidence that she saw the defendant’s state of mind at the relevant time as being beyond the ordinary ambit of human emotions. [28] She opined that, if the combination of a Personality Disorder and an Adjustment Disorder were determined to represent an abnormality of mind, then a defence of diminished responsibility under s 304A may be available. In that case, the capacity which she identified might have been substantially impaired was the capacity to control her actions. Dr Sundin [29] Dr Sundin was also unable to support a finding of unsoundness. She noted that the defendant did not report or display any symptoms suggestive of a psychotic illness. Nor did she support melancholic depression. Dr Sundin referred to the diagnostic difficulties in differentiating between a diagnosis of Major Depression as opposed to an Adjustment Disorder with mixed disturbance of emotions and conduct. [30] However, Dr Sundin favoured a diagnosis of Adjustment Disorder, largely on the observations of external witnesses as to the defendant’s behaviour in the weeks prior to the index offences and the defendant’s report to Dr Sundin, which referred to some disturbance of mood, anxiety, and a good deal of anger, but not full-blown neuro-vegetative disturbance such as would be expected in a Major Depressive Disorder. [31] Dr Sundin observed that the defendant described feeling intermittently depressed, but did not describe periods of pervasively depressed mood, rather she described her pervasive mood state as one of anger and irritation; she felt victimised by her husband, the Family Law Court system and men in general. Dr Sundin noted, as had Dr Reddan, that while there was some diminution in activities, she was still socialising regularly with friends both at her home and at social venues. As to the defendant’s report of loss of appetite and weight loss, Dr Sundin also noted that that may have been aggravated by intermittent abuse of Duromine and that there was an inconsistency in the defendant’s reports as to that matter. She also noted that -- 7 of 16 -- 8 Duromine was a psycho-active stimulant and thus a factor to be considered in the history of reported symptoms, along with the defendant’s marijuana abuse. She noted the lack of report of insomnia, but opined that the defendant’s marijuana abuse confounded the importance of that symptom in terms of diagnostic interpretation (although not taken at such a level as to point to intoxication being a relevant issue). Dr Sundin noted periods of agitation, often when driving, feelings of hopelessness and transient thoughts of suicide. [32] While Dr Sundin rejected a diagnosis of Major Depression, she accepted that there was evidence of it being present after the events. She also with some hesitation accepted, as an alternative to a diagnosis of Adjustment Disorder, one of reactive depression, observing that it was an “incredibly close call” between the two diagnoses. [33] Dr Sundin opined that the defendant had a significant personality disturbance with prominent narcissistic and dependent personality traits, but did not consider that there was sufficient longitudinal evidence to permit a diagnosis of a personality disorder. She noted a profound family history of psychiatric disorder, with a significant number of suicides within the family, which she considered to strongly suggest a genetic vulnerability to affective disorders. She observed that while the defendant denied that she had planned her actions, it appeared that once the thought of death occurred to her she felt incapable of resisting the impulse to act upon this thought. [34] Dr Sundin’s clinical impression in the period prior to the events in question was therefore that the defendant was most likely suffering from an Adjustment Disorder, with mixed disturbance of emotion and conduct, occurring in the context of a disturbed personality structure with prominent features of dependency and narcissism. She considered that the predominantly disturbed emotion was one of anger, with intermittent periods of depressed mood and feelings of anxiety as to residential and Family Court outcomes. [35] In her report, Dr Sundin opined that, by reason of her Adjustment Disorder and vulnerable personality, the defence of diminished responsibility might be available to the defendant in that her psychological condition was such that her capacity to control her actions was substantially impaired. However, Dr Sundin also conceded in oral evidence that a very prominent feature with the defendant was her “profound and enduring” fury towards her former husband. When Dr Sundin was asked if the capacity of control (the only capacity she considered to be raised) could have been substantially impaired in the absence of the defendant’s feeling of anger, she said she did not think so and that anger “was a very important part of the whole that led to substantial impairment”. Dispute of fact [36] On behalf of the prosecution, it was submitted that the factual basis of the psychiatric opinions was, in three respects, so in dispute that it would be unsafe to make a decision on the question of unsoundness of mind or diminished responsibility and that the Court should accordingly decline to do so pursuant to s 269 of the Mental Health Act 2000. The principal factual issues in dispute were identified as: (a) whether the alleged offences were planned or were impulsive; -- 8 of 16 -- 9 (b) the extent to which the defendant was depressed and the nature of such depression in the period leading up to and including the time of the alleged offences; (c) the defendant’s true motivation for killing her two children and attempting to kill her third child. [37] In pursuing this submission, it was contended that in forming their respective opinions each of the forensic psychiatrists giving evidence to the Court placed significant reliance on the account that the defendant had given to that psychiatrist in relation to the history of her relationship with her former husband, her feelings during the relevant period, the extent she felt depressed, and the circumstances in which she decided to commit suicide and to kill her children and her motivation for doing those acts. While there is some force in this submission, I do not consider on balance that there is a sufficient dispute in relation to the factual basis for the experts’ opinions. I note that each of the experts in giving evidence, did so after assessing the defendant’s count to them in the light of other collateral evidence. This applied to the experts’ opinions in relation to the nature and gravity of any depression suffered by the defendant and the issue of the extent of impulsivity in the defendant’s conduct. I note that, when asked about the matter, neither Drs Sundin nor Reddan felt unable to advise the Court because of a lack of clarity in respect of background factual issues. This is not to say that there is considerable variation in relation to how the experts interpreted the factual material, but that in my view was not due to significant factual matters themselves being in dispute. Unsoundness of mind [38] Schedule 2 to the Mental Health Act 2000 defines unsound mind by reference to s 27(1) of the Criminal Code, which provides – “A person is not criminally responsible for an act or omission if at the time of doing the act or making the omission the person is in such a state of mental disease or natural mental infirmity as to deprive the person of capacity to understand what the person is doing, or of capacity to control the person’s actions, or of capacity to know that the person ought not to do the act or make the omission.” [39] As to whether the defendant was suffering from a mental disease at the time of the killing of her two children and attempted killing of the third child, only Dr Curtis supported a finding of unsoundness based on the defendant suffering from a Depressive Disorder of psychotic depth. [40] Dr McVie advised the Court that she found Dr Curtis’ description of psychotic thinking and the concept of authochonous delusion not to be substantiated and recommended against a finding of unsoundness of mind. Dr Varghese also advised that it was most unlikely that the defendant was suffering from any psychotic disorder such as psychotic depression, as suggested by Dr Curtis. Both assisting psychiatrists noted no other psychiatrist found any evidence of psychosis, notwithstanding that the defendant was seen by Drs Slack, Evans, Heffernan, and Burton, soon after the events in question. Dr Varghese also pointed out in his advice to the Court that the notes of the Psychiatric Registrars Kumar and Yelland, and indeed the notes of other clinical staff at the hospitals where the defendant was treated, did not support psychosis, with the exception of one assessment by a -- 9 of 16 -- 10 psychiatric registrar on the day of admission to Wolston Park Hospital whose entry is equivocal. [41] Significantly, in Dr Varghese’s opinion, Dr Curtis’ view that the defendant’s depression was of psychotic depth was undercut by his statement that he rated the severity of the depression as being in the “moderate range”. Dr Varghese advised that Dr Curtis’ opinion, that an individual could have psychotic symptoms with a moderate level of depression, was untenable and would not be supported by most psychiatrists. He advised that, while cognitive distortions are common in moderate depression, for psychotic symptoms to emerge, severe depression was required and almost always with significant melancholia. Indeed, he noted that it is not possible to code psychotic symptoms with moderate depression in DSM-IV and in ICD-10. [42] Both assisting psychiatrists favoured the persuasive opinion offered by Drs Sundin and Reddan that melancholic depression was not present at the relevant time. Neither assisting psychiatrist was able to support a deprivation of capacity in the circumstances. [43] On the evidence before the Court, I am unable to conclude that the defendant suffered from a disease of the mind, be it a Depressive Disorder of a psychotic or melancholic type, nor of any other disease of the mind, such that there was any deprivation of any of the relevant capacities. Accordingly, I am satisfied that at the time of the alleged offences the defendant was not of unsound mind. Diminished responsibility [44] “Diminished responsibility” is defined in schedule 2 of the Mental Health Act 2000 as “the state of abnormality of mind described in the Criminal Code, section 304A”. That provision states as follows: “When a person who unlawfully kills another under circumstances which, but for the provisions of this section, would constitute murder, is at the time of doing the act or making the omission which causes death in such a state of abnormality of mind (whether arising from a condition of arrested or retarded development of mind or inherent causes or induced by disease or injury) as substantially to impair the person’s capacity to understand what the person is doing, or the person’s capacity to control the person’s actions, or the person’s capacity to know that the person ought not to do the act or make the omission, the person is guilty of manslaughter only.” [45] What is required to be considered is whether at the relevant time: (a) the defendant suffered from an abnormality of mind arising from a condition of arrested or retarded development of mind or from an inherent cause or was induced by disease or injury; and (b) such abnormality of mind substantially impaired the defendant in one of the relevant capacities. [46] In R v Byrne [1960] 2 QB 396, Parker LCJ at 403, described abnormality of mind as “a state of mind so different from that of ordinary human beings that the reasonable man would term it abnormal”, observing that: “It appears ... to be wide enough to cover the mind’s activities in all its aspects, not only the perception of physical acts and matters, and -- 10 of 16 -- 11 the ability to form a rational judgment as to whether an act is right or wrong, but also the ability to exercise will power to control physical acts in accordance with that rational judgment.” [47] In R v Rolph [1962] Qd R 262 at 288, Hanger J stressed the importance, when considering the issue of diminished responsibility, of bearing in mind: “… that normal people in the community vary greatly in intelligence, and disposition; in their capacity to reason, in the depth and intensity of their emotions; in their excitability, and their capacity to exercise self restraint, … the matters calling for mention varying with the facts of the particular case: and that until the particular quality said to amount to abnormality of mind, goes definitely beyond the limits marked out by the varied types of people met day by day, no abnormality exists.” [48] In R v Whitworth [1989] 1 Qd R 437 at 445-7, Thomas J noted that there “are certain mental qualities and states of mind that for reasons of policy (mainly law and order) as much as the logic of the law will not allow to be put into the balance for the purpose of this exercise in legal accountability.” Normal propensities or emotions such as prejudice, anger, temper, jealousy, and the effects of intoxication are not abnormalities of the mind; nor are they to be regarded as valid contributing causes to an abnormal state of mind. Advice of the assisting psychiatrists Dr Varghese [49] Dr Varghese noted the diagnosis of Adjustment Disorder favoured by Drs Reddan and Sundin. He advised that Adjustment Disorder is a relatively minor disorder, which is essentially the reaction of a normal individual to abnormal stress or the reaction of an abnormal person to normal stress. He advised that it could not be considered to arise out of arrested or retarded development of mind, nor from inherent factors or disease or injury. He did not therefore consider that it constituted an abnormality of mind for the purposes of s 304A of the Criminal Code and, in any event, considered it unlikely that adjustment disorder of its own could result in substantial impairment of capacity. [50] Dr Varghese noted that, while the defendant was diagnosed as suffering from Major Depression when seen by Dr Slack, Dr Slack was not aware of the contemporaneous accounts and relied on the defendant’s account of the development of her emotional problems. He also noted that she was more clearly suffering from Major Depression when assessed by Dr Evans. He noted however, that the contemporaneous accounts of her behaviour and functioning in the weeks leading up to the killings were not consistent with the defendant suffering from Major Depression as this disorder is generally conceptualised by psychiatrists. Dr Varghese concluded that it was unlikely that the defendant could have been diagnosed as suffering from Major Depression, using criteria based diagnosis, prior to the events in question. [51] Nevertheless, he opined that it was probable, given the natural history of Major Depression, that the defendant was in the process of developing Major Depression. He noted that one could conceptualise the state as being an Adjustment Disorder -- 11 of 16 -- 12 that went on to become Major Depression following the events in question, or as an insidiously developing Major Depression, or as a “depressive reaction.” [52] Dr Varghese was inclined, on the balance of probabilities, to view the defendant’s state of mind prior to the index offences as more significant than can be accounted for by Adjustment Disorder. He was drawn to this view principally by the family history of suicide and depression. Dr Varghese’s advice was that it was probable that the defendant’s suicidality was the product of mood disorder, precipitated by the break-up of her relationship and its circumstances, occurring in the context of other issues in her life, and was best understood as “reactive depression” or a “depressive disorder not otherwise specified” using DSM-IV. [53] Dr Varghese advised that prior to DSM-III, psychiatrists frequently used the term endogenous depression to signify a biological illness in contradistinction to reactive depression, which was considered a psychological illness. DSM-III and its successors consolidated endogenous depression and reactive depression into Major Depression and relabelled neurotic depression as Dysthymic Disorder. He advised that the old concept of reactive depression, meaning persistent depressed mood without classical neuro-vegetative symptoms could be seen as embedded within DSM-IV Major Depression. [54] Dr Varghese’s advice was that “reactive depression” or “depressive reaction” constituted an abnormality of mind arising from inherent causes and induced by disease, but that such abnormality would not of itself have caused the defendant to be substantially impaired in any of the capacities. [55] Dr Varghese noted the significant issues in personality raised by the clinicians and also noted that the discharge diagnosis from Wolston Park Hospital included Borderline Personality Disorder based on the defendant’s observed behaviour in the ward. In Dr Varghese’s opinion, what emerged was a picture of a very disturbed individual, lacking a sense of coherence as to her identity, who has pathological dependence, makes problematic and impulsive relationship decisions, and fails to take responsibility for her actions. As Dr Varghese saw it, for the defendant, having to spend Christmas without her children was a major catastrophe, which was mollified to some extent by her recent relationship with H, who had promised to spend Christmas with her. However, when that fell through as a result of the break- up of the relationship, she was again confronted with being alone. She dealt with the enormity of what she had done to her children by blaming her husband for what happened. [56] Dr Varghese advised that from a clinical point of view, such a disorder of personality would not constitute abnormality of mind. However, he opined that the defendant’s Personality Disorder when accompanied by significant depressed mood (though not necessarily severe depression) would constitute an abnormal emotional state that would amount to abnormality of mind. [57] Dr Varghese considered it probable, as suggested by counsel for the DPP, that the defendant’s decision to kill herself and the decision to kill the children were taken separately and that her behaviour required a degree of planning. However, his advice to the Court was that the defence of diminished responsibility was available to the defendant. He considered that there was a state of depressed mood, which was most likely a depressive reaction to the circumstances occurring in the context -- 12 of 16 -- 13 of a disturbed personality. The abnormality of mind, in his view, arose from arrested development of mind, that is, from personality, but also from inherent factors and induced by disease, namely reactive depression. This abnormality of mind gave rise to suicidal intent and with it a decision to kill her children. The decision would have been influenced by how she saw her circumstances at the time, as a consequence of depressed mood, and was over and above ordinary invasive aspects of her character; ie, her personality. [58] He opined that, even if the defendant first decided to kill the children and then decided to kill herself, an abnormality of mind was present as a result of depressed mood in the context of personality, although, such abnormality would not have been as powerful in influencing behaviour. However, in these circumstances, once she had subsequently made the decision to kill herself, the resulting state of mind would have made it more difficult for her to withdraw from carrying out such a terrible act. [59] While Dr Varghese advised that the defendant’s state of mind was over and above ordinary invasive aspects of her character, I note that he also appeared to accept, on the basis of the material before the Court, that the defendant’s decision to kill the children, as well as herself, was “motivated at least in part by a desire to cause her husband’s life to be miserable”. [60] Dr Varghese considered the only capacity arising for consideration was the defendant’s capacity to know she ought not to do the act and that she was substantially impaired with respect to that capacity. Dr McVie [61] Dr McVie did not support the finding of diminished responsibility in the present case; she was unable to find clear evidence of an abnormality of mind as described in s 304A of the Criminal Code. Nor did she consider the defendant’s capacity to control her actions (as raised by Drs Reddan and Sundin) to have been substantially impaired by any emotional adjustment to her then psychosocial stresses. [62] Dr McVie advised that while a Major Depressive Illness without psychotic features would constitute an abnormality of mind, an Adjustment Disorder of itself would not. However, she was of the view that an Adjustment Disorder in combination with an established Personality Disorder could qualify for an abnormality of mind. [63] Dr McVie considered that, while the defendant clearly developed depressive symptoms following the deaths of her children and her own attempted suicide, any psychiatric assessment of diagnostic formulations made following the events, particularly the first couple of weeks, was to be considered in the light of the defendant’s serious medical condition, and her knowledge of the outcome of her actions, even though she may not have accepted the loss of her children at that stage, would have impacted on any description she gave of her thinking in the lead up to the events in question. Drs Curtis, Slack, and Evans’ examinations, she noted, occurred in this context. Dr McVie noted that the defendant’s depressive symptoms appeared to have diminished fairly shortly after treatment was commenced on 29 November 2002. She considered that it was less likely that a significant Depressive Disorder was developing prior to 20 November 2002. She observed that the contents of the defendant’s suicide notes lacked any clear depressive content, and that one of the themes to come through was not to let her ex-husband get anything. -- 13 of 16 -- 14 [64] Dr McVie accepted that the defendant was subject to significant psychosocial stressors prior to the events and considered the family history of completed suicides to be relevant. She also noted the significant issues of personality and differing clinical opinions on that matter. However, in Dr McVie’s opinion the defendant’s mental state at the time of the events was predominantly that of a normal mind’s reaction to stress; her actions an attempt to regain control over a situation where she felt she was losing. She saw the defendant’s primary emotion as one of anger. She adopted Dr Reddan’s observations that the concept of winning or losing the matters before the Family Court concerning the custody of her children was her priority: she did not want her ex-husband to win. She noted the theme of anger towards her ex-husband was evident from the suicide note to the mother, through to comments recorded in the John Oxley Memorial Hospital file. Dr McVie saw it as significant that when Dr Sundin was asked if the capacity for control could have been substantially impaired without anger, she said she did not think so, and opined that “anger was an important part of the whole.” [65] In terms of the actual commission of the events, Dr McVie noted the opinions of Dr Sundin and Dr Reddan that once the idea was formed, the defendant was compelled to act, but observed that the events unfolded over some time and there was clearly some planning involved. She also noted that giving the children sleeping tablets indicated some understanding she ought not follow through on her intentions, as it would hurt her children. Conclusion [66] I note that the present case was one which resulted in varying diagnostic conclusions from Major Depression Disorder to adjustment disorder, depressive disorder and reactive depression. [67] While a Major Depressive Disorder may give rise to an abnormality of mind, I note that both assisting psychiatrists advised an Adjustment Disorder would not of itself constitute an abnormality of mind, although when combined with a personality disorder, they considered it might give rise to an abnormality of mind. Dr Varghese extended that proposition to reactive depression or significant depressed mood. [68] I note that in R v Ford [1972] QWN 5, as a result of expert evidence given in that case by Dr Hurley in respect of the condition of “depressive reaction” there in issue, the jury were directed to the effect that that condition constituted an abnormality of the mind being induced by disease (see also Re H, Mental Health Tribunal, 19 January 2001). In Re CWB [2003] QMHC 12, Wilson J proceeded on the basis that the defendant’s reactive depression was an adjustment disorder and found that the defendant’s reactive depression arose from inherent vulnerability, and that, in combination with his personality disorder, brought about a substantial impairment of the defendant’s capacity to know he ought not to do the act. See Re GAH [2005] QMHC 11 at [29]. I note however that in Re CWB the assisting psychiatrists both advised that it was significant that there was no element of rage or anger in the killing the subject of the reference: [2003] QMHC 12 at [24]. [69] In Re GMB [2002] QMHT 1, Chesterman J held that personality disorder alone does not constitute an abnormality of mind, a proposition that was not disavowed by the majority in McDermott v The Director of Mental Health; ex parte A-G (Qld) [2007] QCA 51. In McDermott, Holmes J’s decision, that a personality disorder, while not -- 14 of 16 -- 15 itself amounting to an abnormal state of mind, could be an inherent cause of such a state, was not the subject of challenge on appeal. [70] There is clear evidence that after the events in question, the defendant developed a depressive episode. There were clearly significant stressors operating in the period leading to the index offences, including relationship problems, financial problems, and urgent accommodation problems, and stressors to do with the custody of the children and the fact that the defendant’s ex-husband had been granted permission to have the children over Christmas. I also accept that there were significant issues of personality, which Drs Curtis and Reddan diagnosed in terms of a Personality Disorder. [71] However, I find it difficult in the present case to be satisfied to the requisite standard that the defendant was suffering from a Major Depressive Disorder of a non-melancholic type. I note the observations of Dr McVie, that the oral evidence of the expert reporters was that the defendant’s depressive symptoms were mild, or, in Dr Curtis’ case, moderate. I note the relevance of the defendant’s genetic history, but as Dr Varghese observed, agreeing with Dr Curtis, the degree of suicidality is not necessarily linked to the severity of depression. Further, as Dr Varghese stated in his advice to the Court, while there were hints of suicidality in the days leading up to events, they were not taken seriously by the observers. [72] I am prepared to accept that an adjustment disorder or a reactive depression may, depending on its severity, give rise to an abnormality of mind when combined with a personality disorder. The difficulty that I have in the present case is as to the contributing role of the defendant’s anger and resentment to her state of mind and impairment of capacity, given that emotions such as anger or revenge are not considered valid contributing causes to a state of abnormality of mind. [73] Both assisting psychiatrists noted the feature of ongoing intense anger by the defendant towards her former husband. It was a continuing theme in relation to the period both preceding and following the relevant events in question, evident in one of the suicide notes, the hospital records and referred to in witness statements. It was the subject of comment by Drs Curtin, Reddan, and Sundin. Notwithstanding Dr Varghese’s advice in relation to the interaction of what he described as the defendant’s reactive depressive condition, personality disorder, and the other stressors as resulting in a state of mind beyond the extremes of common emotions, I note that he also did state that the defendant’s decision to kill the children, as well as herself, “was motivated at least in part by a desire to cause her husband’s life to be miserable.” I make similar observations in respect of Dr Reddan’s evidence. And in her oral evidence, Dr Sundin stated that she saw the defendant’s anger as a significant factor contributing to the defendant’s impairment of control and the conclusion reached in her report that there was substantial impairment in the capacity to control her actions must be regarded in the light of that oral evidence. [74] I note the comments of Thomas J in R v Schafferius [1987] 1 Qd R 381 at 383, as to the standard of proof in proceedings such as the present one being one of proof on the balance of probabilities, but that a finding should be made “only in reliance on clear and convincing evidence, and upon a firm satisfaction consistent with the gravity of the proceeding.” I also note the comments of the Court of Appeal in Attorney General v Kamali (1999) 106 A Crim R 269 at 273. Ultimately, I find the view put forward by Dr McVie to be a persuasive and cogent one, which I cannot -- 15 of 16 -- 16 disregard, so as to be satisfied on the balance of probabilities that the defendant was, at the time of the alleged offences, of diminished responsibility. There is a body of evidence and opinion supporting the view that the defendant acted in circumstances where she was, to a significant degree, motivated by anger and resentment towards her husband. I am unable to be satisfied that absent such emotions, the defendant was at the relevant time suffering from a state of abnormality of mind as that term is understood in s 304A. And in any event, on the evidence before me, I am unable to be satisfied that there was a substantial impairment of any of the defendant’s capacities. I reach this conclusion having taken into account that, on Dr Varghese’s advice, the capacity called into question was the defendant’s capacity to know she ought not to do the acts, whereas Drs Reddan and Sundin regarded the relevant capacity to be the capacity for control. Orders [75] I find that the defendant was not of unsound mind at the time of the alleged offences, nor of diminished responsibility. The evidence indicates that the defendant is fit for trial. The proceedings will continue according to law. -- 16 of 16 --