CAW Re [2007] QMHC 34

MENTAL HEALTH COURT CITATION: Re CAW [2007] QMHC 34 PARTIES: REFERENCE BY THE DIRECTOR OF MENTAL HEALTH IN RESPECT OF CAW PROCEEDING: 0189 of 2006 DELIVERED ON: 25 July 2007 DELIVERED AT: Brisbane HEARING DATE: 9 July 2007 JUDGE: Philippides J ASSISTING PSYCHIATRISTS: Dr Wood Dr Lawrence FINDINGS AND ORDER: 1. That the defendant was not of unsound mind nor of diminished responsibility as described in the Mental Health Act 2000 (Qld) at the time of the alleged offence; 2. That the defendant is fit for trial; and 3. That the proceedings in respect of the alleged offence should continue according to law CATCHWORDS: MENTAL HEALTH – DECLARATION OR FINDING OF MENTAL ILLNESS OR INCAPACITY – where defendant charged with one count of murder – where defendant diagnosed with Antisocial Personality Disorder – where divergence in expert opinion as to the nature of defendant’s mental condition at the relevant time – where evidence that defendant was intoxicated at the time of the alleged offence – whether defendant was deprived of any of the relevant capacities at the time of the alleged offence – whether defendant was substantially impaired so as to be of diminished responsibility – whether defendant is fit for trial Mental Health Act 2000 (Qld), Schedule 2 Re GMB (2002) 130 A Crim R 187, cited COUNSEL: Mr J D Farmer for the Defendant Mr W Isdale for the Director of Mental Health Mr M R Byrne for the Director of Public Prosecutions SOLICITORS: Legal Aid Queensland 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 CAW [2010] QCA 103) -- 1 of 9 -- 2 [1] PHILIPPIDES J: The defendant, a 25 year old man, is charged with the murder on 25 March 2006 of the defendant’s two year old nephew, the son of the defendant’s brother. [2] The defendant’s mental condition at the time of the alleged offence has been referred to this court. Circumstances of the Alleged Offence [3] At about 8.00 pm on 25 March 2006, the defendant’s brother B and his wife drove with their son to visit their parents’ house. Also residing at that address were another brother and the defendant, who was living in a caravan on the property at the time. [4] B and his family had travelled to the address to report the news that he had just been accepted to a theological college. On arrival they saw that B’s son was sleeping and as they did not anticipate staying long they left the child asleep in the car rather than waking him. They parked the car at the side of the house. Family members report that when B and his wife came into the house, the defendant was present, but that he went outside shortly afterwards. The family thought nothing of this. (There existed a significant long-standing animosity by the defendant towards his brother B which had involved physical altercations. The defendant also had overtly expressed a hatred for B’s son and had previously threatened him harm.) [5] A short while after, the child victim’s grandmother looked out of the window of the house overlooking where the car was and saw the silhouette of a person in the front passenger seat of the car reaching through to the rear seat. She saw that the interior light of the car was on, indicating that a door was open. The grandmother went outside to check on the child and found that the child had suffered severe lacerations to the neck. She screamed and the remaining family members came to her aid. The defendant was not seen again that evening. The family took the child to the hospital, but he could not be saved. [6] The following day, police located the defendant at a neighbouring address and arrested and questioned him. Police observed blood on his clothing. He initially denied any involvement in the child’s death. However, he then changed his statement and admitted he cut the child’s throat with a folding style pocket knife. He said that he attacked the child because of an argument he had had with the child’s father earlier that night and that he hated children because they cry all the time. When asked why he had hurt the child he replied “something just told me to” without elaborating further. [7] Family members report that on the afternoon of the day in question the defendant appeared agitated and anxious. Immediately prior to the alleged offence, the defendant reported feeling paranoid. [8] To Dr Voita, his treating psychiatrist, the defendant gave a number of varying accounts of the events in question and his state of mind at the time. He mentioned going to his caravan and picking up a bayonet and a pocket knife. He said that he picked them up to “stop someone from stabbing me and taking my life I guess …”. He told Dr Voita that he had gone to the car and thought he might slash the tyres, -- 2 of 9 -- 3 but then saw his nephew and “cut his throat”. In another account he said he was walking around the car and saw the back of the car and then saw his nephew sleeping in the car “so I cut his throat”. On one account he said that he could hear voices “discussing him being gutless” and he heard a voice saying “keep going … listen to the screams” and heard laughing. He gave no account of voices telling him to harm or kill the child. After the stabbing, he “freaked out … ran away to get away from the cops”. [9] He told one of the reporting doctors, Dr Varghese, that on the night in question, he believed that his brother B was going to kill him. He recalled seeing his brother talking on the phone and he thought he was saying “now he is crude. We’re going to kill [the defendant]”. He reports thinking that his brother’s telephone conversation was “a power trick”, saying that his brother was “always trying to exercise power” and “boss me around”. He reports that after seeing his brother on the telephone, he heard voices saying things such as “you are gutless” and “you won’t do it”. He reports that the “it” referred to “murder”. The defendant then got a bayonet and he recalls hearing his brother saying “keep it coming and that”. He states that he then walked around to the front of the house, saw his nephew in the car and “slashed his neck”. Intoxication [10] There are varying accounts of the extent of the defendant’s drug and alcohol use, but by his own admission, his use was extensive. He reported that he commenced marijuana use at the age of 13 and more recently was using five cones per day. He admitted to amphetamine use since his teens but then stated that he had “cooled off” for a while, but more recently was using it more heavily, using 1 gram per week. He also reported using heroin nine months prior to the alleged offence, past abuse of benzodiazepines, but not in recent times and past use of magic mushrooms, LSD and angel dust. [11] The defendant reported that on 24 March 2006, the day before the alleged offence, he had been drinking and smoking marijuana. [12] On the day of the alleged offence, the defendant reported, in an interview with Dr Varghese, sharing half a bottle of scotch with friends between 11 am and 12 noon. He gave varying accounts of his alcohol consumption leading up to the events in question. He denied using any drugs, although he was offered amphetamine and was in the vicinity of people who were “shooting up” later that day. In an interview with Dr Voita on 7 April 2006, the defendant reported injecting speed 42 times over the five days prior to the alleged offence. He stated that he believed he was “high” prior to the offence and was hearing voices and music. He said that he had drunk a quarter of a bottle of bourbon and one bottle of homebrew on the day of the offence and that he had been on an intravenous drug binge, although he could not remember if he used it “two or three days prior to offence”. He reported a similar pattern of drug and alcohol use in an interview with Dr Nesdale on 18 April 2006. He also admitted to drinking spirits on the morning of the day before he killed his nephew. He visited a number of friends and drank half a bottle of scotch, had a sleep and went to a party where he drank beer and more spirits to the extent that he was throwing up and was asked to leave. He eventually visited another person’s place where he was offered drugs (ice), which he says he refused. (Although there is evidence that he told a friend that he -- 3 of 9 -- 4 was drunk and stoned.) He drank another three quarters of a bottle of spirits. The next morning, he watched a pornographic film at about 11 am and then drank about ten glasses of spirits before going to a number of other houses and drinking more alcohol. [13] A blood test taken the day after the offence detected no alcohol and no drugs. A urine sample on the same day detected the presence of cannabinoids, but was negative for amphetamines and alcohol. Psychiatric History [14] The defendant has a history of mental health difficulties dating back to 1998 and a review of the Bundaberg Mental Health Notes reveal that he apparently suffered three to four episodes of what was thought to be drug induced psychosis as he was smoking marijuana at the time, although the family reports that these episodes were self limiting and he did not access any treatment or require admission. [15] He has had two admissions to the Bundaberg Mental Health Unit; the first in May 2002 for five days with drug induced psychosis and the second in July 2002 with major depression with psychotic features. The defendant reports making five suicide attempts in total. He states that after one of these attempts, he was diagnosed with manic depression and schizophrenia, but he was not certain about this. [16] In an assessment by Dr Hay on 30 March 2006, when the defendant was in custody, the defendant stated that in January 2006 (after his release from custody following imprisonment for a number of assaults), he stopped taking his medication and recommenced using intravenous amphetamine. The defendant reported that when he was released from prison in January 2006, he was not hearing voices, but that the voices returned after he started using speed. He denied delusional beliefs. Dr Hay assessed the defendant as mildly thought disordered but did not consider him to be floridly psychotic. Dr Voita [17] Dr Voita first saw the defendant on 7 April 2006 and has been the defendant’s treating psychiatrist since his admission to The Park on 18 April 2006 and has had over 100 meetings with him. [18] When she saw the defendant on 7 April 2006 she did not consider him to be psychotic. She assessed him again on 13 April 2006 with Dr Nesdale, by which stage she found him to be floridly psychotic and requiring hospitalisation. He was thought disordered with perplexed affect and admitted to persistent auditory hallucinations. In a further interview on 18 April 2006, the defendant stated that the voices had improved since he was recommenced on olanzapine in custody. [19] In her first report dated 15 August 2006, Dr Voita considered that, at the time of the alleged offence, the defendant was suffering from a psychotic illness, most likely substance induced psychotic disorder (due to cannabis and amphetamines) and opined that non-compliance with medication in combination with heavy use of amphetamines and cannabis may have precipitated his illness. However, Dr Voita noted that a differential diagnosis of schizophrenia would need to be considered -- 4 of 9 -- 5 and long term monitoring would clarify the diagnosis. Dr Voita also considered that the defendant met the criteria for amphetamine abuse, cannabis abuse and alcohol dependence. In her second report dated 25 June 2007, with the benefit of hindsight as the defendant’s treating psychiatrist, Dr Voita considered that the defendant’s diagnosis should be seen as one of schizophrenia – paranoid type. She did so given his ongoing symptomology in the absence of illicit substances and the relapse of his illness in the context of a decrease in his clozapine and a number of psychosocial stressors. In giving oral evidence she indicated that she could not say whether the defendant was, in fact, schizophrenic at the time of the alleged offence. [20] In addition Dr Voita considered that the defendant satisfied the criteria for Antisocial Personality Disorder as evidenced by a failure to conform to social norms with respect to lawful behaviours, deceitfulness, impulsivity, irritability and aggressiveness and reckless disregard for his own safety and that of others. The defendant admitted to Dr Voita disturbing cruelty, tormenting and killing of animals. He admitted to “sacrificing animals” which is documented by witness statements. He said that he had killed kittens as they would have to be put down or given to the RSPCA and that he had done that at least 19 times and thought it was funny. He said that his mother had once found one of the dead kittens on a post and was upset. [21] Dr Voita opined that the defendant was suffering from alcohol intoxication at the relevant time and might possibly have been under the influence of a number of other illicit substances including amphetamines and cannabis as well. Dr Voita considered that the negative result for alcohol and amphetamines in the blood toxicology report might be a result of the delay in the test. The blood test was labelled 17.20 on 26 March (20 hours after the offence). In regard to alcohol, Dr Voita noted that the defendant appeared to have consumed alcohol 14 hours prior to blood collection, with his heavier use of alcohol most likely being on the Friday and Saturday until 5 pm. She therefore considered the lack of alcohol in his blood most likely reflects a delay in obtaining the sample. She believed it was likely that the defendant had a significant blood alcohol level at the time of the offence. She also noted that the toxicology label made a note that the blood sample as received appeared to be not suitably preserved, which may lead to loss or gain of alcohol. Dr Voita therefore believed that intoxication played a significant part in the defendant’s actions and noted that he has a history of a number of psychotic episodes that have been precipitated by illicit substances. [22] But in any event, Dr Voita did not consider that the defendant was deprived of any of the relevant capacities at the time of the alleged offence. She did not consider that there was any deprivation of the capacity to understand his actions given his own account that he knew he would kill his newphew by cutting his throat. Nor was he deprived of the capacity to know he ought not to do the act. Dr Voita referred to the defendant’s account that his first thought was “no more visits from [his nephew] or [his brother]” and then “get away and find somewhere to get away from everyone … like the police”, which he did by decamping to the neighbour to whom he said nothing about his harming his nephew. Furthermore, when asked why he did not say anything to his neighbour he replied because “I knew what I did was wrong”. -- 5 of 9 -- 6 [23] Dr Voita considered there was no deprivation of the capacity for control; he gave a clear recollection of his actions and there was no delusion or psychotic phenomena described which would account for such a deprivation. She noted that the defendant gave varying accounts of the events surrounding the offence. In her opinion, this was due to a number of reasons, including his propensity for deception and his desire to seek a mental health defence. Given the number of varying accounts of the offence from the defendant, Dr Voita was of the opinion that more credence has to be given to earlier accounts, in which there was no mention of delusional ideas towards the victim and she noted a consistent account of anger toward his brother being a factor in his actions. In her view, the motivation for the offence was not psychotic in nature but related to the defendant’s Antisocial Personality Disorder and the disinhibiting effects of alcohol intoxication. [24] She therefore did not support a defence of unsoundness of mind. Nor did she support a defence of diminished responsibility. Putting intoxication to one side, she was unable to find a substantial impairment of any capacity as a result of mental disease as opposed to a personality disorder. Dr Reddan [25] Dr Reddan saw the defendant on 12 March 2007 and 2 May 2007 and provided a report dated 31 May 2007. Dr Reddan saw the defendant’s presentation and longitudinal history as indicative of an Antisocial Personality Disorder and she accepted the defendant might also suffer from schizophrenia. [26] She considered that whether and to what degree, the defendant was actively psychotic at the relevant time remained unclear. She concluded that it was likely that the defendant was suffering from a combination of a psychotic state, (whether due to substances or schizophrenia, or a combination of both remains unclear), and intoxication. She observed that there was evidence to suggest that the defendant’s mental state could be variable and that he was manifesting varying degrees of psychotic symptoms and concluded that “this probably represented a prodrome to a psychotic episode or was the result of drug use”. She therefore saw the defendant as suffering from an evolving psychotic condition. Dr Reddan did not consider that the defendant was floridly psychotic at the relevant time and found the defendant’s account of the command hallucinations at the time of the killing “quite unconvincing”. She noted that neither Dr Hay, nor Dr Voita on her initial examination, thought the defendant was floridly psychotic, nor was there evidence of such a condition from letters written by the defendant to his family soon after he was placed in custody. [27] Moreover, in her view there was no evidence that the defendant was deprived of any relevant capacity. In this regard, she referred to his decamping immediately to his neighbours, offering an alternative story as to why he was there. She considered that his statements to the police clearly indicated that he understood the nature and quality of his behaviour and knew that he ought not to have done it. She opined that his behaviour also indicated that he had a capacity to control his actions, observing that he reported command hallucinations on which he had not acted. -- 6 of 9 -- 7 [28] Dr Reddan concluded that: “The available evidence, particularly the more contemporaneous material, suggests that his primary motivation for the killing of the child was anger and longstanding resentment towards his brother… [The defendant] has a history of quite sadistic behaviour and of extreme violence towards creatures which are vulnerable and in his power, and who are unlikely to be able to mount an effective defence. The killing of the animals was a warning of his potential, but unfortunately it would appear that in relation to the worst of his antisocial behaviour, specifically his sexual misconduct and the killing of the animals, his parents understandably, but misguidedly, protected him.” [29] While Dr Reddan accepted that at the relevant time the defendant was under the influence of cannabis and quite possibly under the influence of alcohol, she observed that his account of drug and alcohol abuse around the time of the alleged offence varied between the two interviews she conducted and also the examinations with other reporting doctors. In those circumstances, she did not place any great score on that issue. [30] In relation to the question of diminished responsibility, she stated that, even if the combination of probable psychotic symptoms, intoxication and an Antisocial Personality Disorder constituted an abnormality of mind, she was unable to support a contention that the defendant was manifesting a substantial impairment in his capacity to understand what he was doing, or in his capacity to control his actions, or in his capacity to know that he ought not to do the act with which he is charged. She saw the defendant as suffering only mild to moderate impairment at the relevant time. Dr Varghese [31] Dr Varghese assessed the defendant on 17 November 2006 and 5 January 2007 and provided two reports dated 25 January 2007 and 4 July 2007. Dr Varghese considered the history provided by the defendant and his description of psychotic symptoms to be consistent with schizophrenia of a paranoid type. He noted the presence of symptoms of first rank and evidence of some persecutory delusional thinking and commented that schizophrenia appears to be occurring in the background of significant personality disturbance. [32] In his first report, Dr Varghese expressed the view that, while the defendant was suffering from a mental disease at the time of the alleged offence (namely schizophrenia with psychotic symptoms of a persecutory nature), it was unclear to what extent the defendant was affected by alcohol and any illegal substances such as amphetamine and cannabis. Dr Varghese opined that, if the defendant was indeed suffering from a delusional state as a result of schizophrenia wherein he expected that his brother would kill him, and moreover if he was subject to hallucinations with respect to killing somebody which he was unable to resist, then he was arguably deprived of the capacity for control with respect to his mental actions. However, Dr Varghese was unable to reach a conclusion as to whether the defendant was so deprived without first having access to further information, particularly relating to issues of use of amphetamine and the extent to which alcohol was involved. -- 7 of 9 -- 8 [33] In his second report, Dr Varghese noted that the defendant’s history indicated that his schizophrenic psychosis had been exacerbated at times by substance abuse, in particular amphetamines but also cannabis, and in addition alcohol. All of that had occurred in the context of an antisocial personality. However, on reviewing additional material, Dr Varghese could reach no clear conclusion as to intoxication, considering the data to be unclear. [34] Dr Varghese nevertheless did not support a defence of unsoundness of mind because he was unable to find that there was any deprivation of the relevant capacities. He excluded deprivation of the capacities to understand his actions and know he ought not to do the acts, given his conduct in fleeing from the scene and his subsequent denial of any involvement when interviewed by police. As to the capacity to control, Dr Varghese observed that what was missing from the defendant’s account was any overwhelming delusional or hallucinatory process that could have led to deprivation and stated that “it would be difficult to conclude without a high degree of inference that the capacity for control was absent.” He considered that it was possible, even probable, that the killing of his nephew was driven by some psychotic process but was unable to detect any such psychotic process operating to the extent that there was deprivation of any capacity. His evidence was that it would involve a high degree of speculation and inference drawing to link the defendant’s actions to any psychotic disorder so as to support a finding of unsoundness. In this regard, he observed that the psychotic phenomena reported by the defendant did not involve his nephew in any way, rather the psychotic phenomena involved his brother. [35] In relation to the question of abnormality of mind, Dr Varghese was of the view that there was an abnormality of mind in the form of schizophrenia. He found problematic the question as to whether as a result of that condition it could be said that the defendant was substantially impaired in the capacity to control his actions. He felt compelled to acknowledge that in the circumstances of the present case, where schizophrenia operated in conjunction with a personality disorder, it was capable of operating so as to substantially impair the defendant’s ability to act appropriately in a situation of emotional arousal. He noted a qualification to this opinion, being if there was an Antisocial Personality Disorder involving sadism present. In his second report he expressed the qualification as follows: “There is some disturbing material in the data with respect to extreme cruelty to animals … Thus it is important to consider whether there is an element of pleasure in killing. [The defendant’s expressed hatred for the child and the reported lack of involvement at all with his nephew may indicate that he had an underlying concern that he would harm the child because of his urges. If this were the case, then I do not believe that unsoundness of mind would apply nor indeed diminished responsibility.” [36] I note that in giving oral evidence Dr Varghese stated that he had not pursued the issue of sadism with the defendant but indicated that he thought that “the personality disorder may have elements of taking pleasure in killing. Killing of animals, certainly.” Dr Varghese made particular reference to the reports of the defendant killing and disembowelling a kitten. Ultimately, Dr Varghese accepted that it was more probable than not that sadism was present and went as far as agreeing with Dr Wood’s proposition that that could be added to the defendant’s diagnostic list. -- 8 of 9 -- 9 Conclusion [37] While there was a divergence in views of the reporting doctors as to the description of the defendant’s mental condition at the relevant time, they all agreed that there had been a psychotic process, whether drug-induced psychosis, an evolving psychosis or schizophrenia. None of the doctors considered that the defendant’s condition was such as to result in a deprivation of any of the relevant capacities, irrespective of the issue of intoxication. In the circumstances, I find that the defendant was not of unsound mind. [38] The question of diminished responsibility is more problematic. A personality disorder alone has been held not to constitute an abnormality of mind (Re GMB (2002) 130 A Crim R 187). [39] Dr Varghese considered that the interaction of the pre-existing antisocial personality disorder and schizophrenia resulted in an abnormality of mind with substantial impairment. Dr Varghese came to the view somewhat reluctantly when giving oral evidence. He did not express that opinion in either of his reports and qualified his oral evidence insofar as the personality disorder manifested sadism. Given that significant qualification and his evidence which suggested that sadism was present, I have considerable reservations in accepting that the defendant suffered an abnormality of mind. I also note that while Dr Varghese considered that the defendant suffered from schizophrenia at the relevant time, Drs Voita and Reddan were considerably more reticent as to that matter. [40] But even accepting that there was a state of abnormality of mind at the relevant time, I prefer the opinion of Drs Voita and Reddan that there was no substantial impairment, which was also the position favoured by the assisting psychiatrists. As Dr Varghese identified in his oral evidence the heart of the difference between him on the one hand and the other reporting doctors, as to the question of substantial impairment, lay in the extent to which the reporting doctors were able to reach the clinical assessment that there were psychotic symptoms of substance abuse operative at the time of the charged offending. Dr Voita’s opinion as the treating psychiatrist who has had contact with the defendant on over 100 occasions carries considerable weight. She had reservations as to the reliability of the defendant’s self-reporting of his symptoms. In the circumstances of the present case I am not satisfied to the requisite degree that a finding of diminished responsibility is available. Orders [41] Accordingly, I find that at the time of the alleged offence the defendant was not of unsound mind, nor of diminished responsibility. The defendant is fit for trial. I order that the proceedings continue according to law. -- 9 of 9 --