Amos, Re [2007] QMHC 4

MENTAL HEALTH COURT CITATION: Re Amos [2007] QMHC 004 PARTIES: REFERENCE BY THE DEFENDANT’S LEGAL REPRESENTATIVES IN RESPECT OF DAMIAN JAMES AMOS PROCEEDING: No 0215 of 2005 DELIVERED ON: 6 March 2007 DELIVERED AT: Brisbane HEARING DATE: 12 February 2007 JUDGE: Philippides J ASSISTING PSYCHIATRISTS: Dr Wood Dr Lawrence FINDINGS AND ORDERS: 1. That the defendant was not of unsound mind as described in Schedule 2 of the Mental Health Act 2000 at the time of the alleged offence. 2. That the defendant is fit for trial. 3. That the proceedings are to continue according to law. CATCHWORDS: MENTAL HEALTH – DECLARATION OR FINDING OF MENTAL ILLNESS OR INCAPACITY – where defendant charged with dangerous operation of a motor vehicle causing death – where subsequently blood test taken from defendant at hospital – where blood test revealed a blood alcohol concentration of 0.73% and the presence of tetrahydocannabinol – where defendant had a history of paranoid schizophrenia – where no psychotic symptoms found on examination of defendant at hospital or subsequently in prison – where defendant some months later reported experiencing psychotic phenomena at the time of the alleged offence – whether defendant suffering from a psychosis at the time of the incident – whether defendant deprived of a relevant capacity as a result of a psychosis – whether the defendant suffered from a mental illness resulting in a deprivation of capacity which was to any extent the result of intoxication Attorney-General of Queensland v Kamali [1999] QCA 219 R v Schafferius [1987] 1 Qd R 381 COUNSEL: A Vasta for the defendant W Isdale for the Director of Mental Health S Bain for The Director of Public Prosecutions SOLICITORS: Whitehead Gupta for the defendant Crown Law for the Director of Mental Health The Director of Public Prosecutions (Qld) -- 1 of 8 -- 2 PHILIPPIDES J: [1] The defendant, Damien Amos, a 28 year old man, is charged with dangerous operation of a motor vehicle causing death on 9 October 2004. [2] The defendant’s mental condition at the time of the alleged offence has been referred to this Court. The court heard evidence from Dr Huntsman, the defendant’s treating psychiatrist, Professor Starmer, a pharmacologist, Dr Coyle, a psychologist and Dr Kingswell, a psychiatrist, all of whom provided reports. Background facts [3] The defendant has a history of polysubstance abuse. He has been using cannabis since the age of fifteen and began drinking alcohol at the age of fourteen. He has received treatment for amphetamine and cannabis addiction. The defendant has a seven year history of an episodic psychotic illness associated with polysubstance dependence. The defendant has a conviction for dangerous operation of a motor vehicle whilst adversely affected by alcohol on 28 March 2000. [4] He has been under Dr Huntsman’s care since 24 September 1999, when he was admitted to the Palm Beach Currumbin Clinic with a drug-induced psychosis. He was subsequently followed as an outpatient and the diagnosis was revised to schizophrenia. He was stabilised on a course of risperidone. When reviewed in August 2003, his symptoms were in remission. However, the defendant was readmitted on 30 August 2004 following displays of paranoid and disorganised behaviour. He was insightless and unwilling to accept changes to his medication. He was discharged (at his request) on 10 September 2004 and reviewed by Dr Huntsman on 24 September 2004, who found him thought disordered and reluctant to continue with medication. [5] The offence with which the defendant is charged arose out of a course of driving on 9 October 2004. On that day the defendant was driving east along the Nerang Broadbeach Road. Witnesses report that he was driving erratically, weaving in and out of traffic, and at a speed estimated by some witnesses to be as high as 150 km/hr. The course of driving culminated in the defendant’s vehicle crashing at speed into the rear end of the deceased’s vehicle, rupturing its fuel tank and causing that vehicle to be thrown 70 metres off the road and into a tree whereupon it caught fire. The deceased died from injuries he sustained. These events occurred at about 10.15 am on the day in question. [6] The defendant did not stop at the scene of the collision, but continued to drive and was then involved in a further, but minor, accident. A witness heard the defendant say that his “accelerator had been stuck”. Another witness described the defendant’s speech as slurred and slow and noticed him to appear disorientated. [7] Prior to these events the defendant was observed at the Carrara Gardens Golf Club by a group of players some time after 8.20 a.m. One witness observed the defendant to be drinking from a can which she later saw was a can of Jim Beam. A number of players reported the defendant was angry and aggressive towards them, hitting a golf ball towards them. -- 2 of 8 -- 3 [8] The defendant was subsequently taken to the Gold Coast Hospital, where it was noted he smelt of alcohol. The defendant underwent a blood test at 11.50 am. The test returned the following results, which are not disputed: Alcohol: 73/100 ml (0.073% BAC) Diazepam: <0.02 mg/kg Nordiazepam: 0.02 mg/kg 11-Nor-delta 9-tetrahydrocannabinol-9-carboxylic acid: 0.040 mg/kg Delta 9-tetrahydrocannabinol (THC): 0.003 mg/kg [9] A mental assessment performed on 9 October 2004 at about 3.40 pm by Dr Muhic, the Psychiatric Registrar at the Gold Coast Hospital, who was in contact with Dr Huntsman, and was thus made aware of the defendant’s psychiatric history of schizophrenia and drug abuse. The defendant told Dr Muhic, “I had a car accident, I am here now and that is it”. He declined to elaborate further. The defendant was guarded, but no overt psychotic phenomena were elicited, no disorder of thought was detected and the defendant denied perceptual abnormalities. Dr Muhic considered that the defendant presented with no symptoms consistent with an acute mental illness. [10] The defendant was later also seen in prison by Mr Pedley and Dr Purssey, both of whom were aware that the defendant was being treated by Dr Huntsman and neither of whom observed any psychotic symptoms. [11] The defendant was released on bail to the Palm Beach Currumbin Clinic on 11 November 2004 and treated, inter alia, with intramuscular Risperdal Consta. He remained an inpatient there under Dr Huntsman’s care until 14 December 2004. [12] Some months after the events of 9 October 2004, the defendant disclosed to Dr Huntsman that he had been non-compliant with oral medication before the accident. He also disclosed for the first time that just before the accident he had been experiencing psychotic phenomena; that is that he believed that he was receiving messages from aliens telling him to drive fast because he was about to miss joining his son and his father for a boat trip. He said he then experienced an overwhelming feeling of panic and believed that he needed to get home immediately. [13] The defendant reported that he had consumed about $25 worth of hydrophonically grown cannabis some 2 to 3 days before the accident. The defendant told both Dr Kingswell and Dr Coyle that on the evening prior to the accident he had consumed four bottles (355 ml) of beer, each of 4.6% alcohol. He told Dr Coyle that he had consumed the beer between 6 pm and 8:30 pm. The defendant repeatedly stated that he had not had any alcohol on the morning of the accident. Dr Starmer’s evidence [14] Professor Starmer provided a report dated 16 November 2006. He indicated that the matter of the effect of intoxication upon a psychotic state was not one within his field of expertise. However Professor Starmer was able to give consideration to the question of the likely level of blood alcohol concentration (BAC) of the defendant at the time of the accident. He pointed that, if the defendant had only consumed the amount of alcohol which he claimed to have consumed during the time frame reported by him, the defendant’s BAC at the time of sampling would have been zero, rather than 0.73% as found. Professor Starmer therefore concluded that the -- 3 of 8 -- 4 defendant’s recall of his drinking was inaccurate, a conclusion reached by all the reporting doctors. [15] Professor Starmer accepted that if the defendant had drunk alcohol on the morning of 9 October 2004, it was possible that his BAC at the time of the incident was lower than that found on analysis. However, on balance he considered that the likely implication of the delay in taking the defendant’s blood sample (of about 1 hour and 50 minutes), was that the defendant’s BAC at the time of the collision was somewhat higher than the level at the time of testing. He calculated the defendant’s most likely BAC at the time of the collision as 0.101 g/100 ml (range: 0.091- 0.119g/100 ml). Counsel for the defendant indicated that it was not contested that the range of BAC at the time of the accident was in the vicinity of 0.07 to 0.11 g/ml. Dr Huntsman’s evidence [16] In his report of 6 September 2005, Dr Huntsman observed that the defendant was diagnosed as suffering from schizophrenia, with an initial diagnosis of drug induced psychosis in 1999. He expressed the opinion that, at the time of the events in question, the defendant was “floridly psychotic” and “suffering an acute paranoid psychosis, resulting from an exacerbation of his schizophrenia due to non- compliance with medication”. This was “also associated with self-medication with alcohol and cannabis”, although the blood levels of cannabis were in his view not indicative of recent intoxication with that substance. [17] Dr Huntsman considered the defendant to be deprived of the capacity to understand the nature of his actions and the capacity to control his actions due to psychosis. This opinion was based partly on witness statements regarding the defendant’s behaviour immediately prior to the accident, which he considered described paranoid and disorganised behaviour and the defendant’s angry appearance. Dr Huntsman stated that the defendant’s behaviour was similar to behaviour that the defendant was demonstrating in the weeks prior to and immediately following the accident, when he was readmitted as suffering an exacerbation of paranoid schizophrenia. Furthermore, in his view, the defendant’s severe degree of internal preoccupation, the bizarre nature of his persecutory delusions, and the extreme nature of his erratic driving and the fact that he had little recall of the events and no awareness that he had in any way contributed to the accident by driving dangerously, were further indications of a psychotic episode. [18] As to the fact that the Gold Coast Hospital’s in-house psychiatrist observed no psychotic phenomena immediately after the accident, Dr Huntsman stated that the defendant’s mental state could easily be misdiagnosed due to the defendant’s tendency to be suspicious and guarded when psychotic. Dr Huntsman conceded however that, notwithstanding his own long acquaintance with the defendant, the defendant has only admitted to experiencing his hallucinations and delusional beliefs many months after the accident. Nevertheless, Dr Huntsman considered that the defendant’s subsequent reporting of his symptoms was reliable. [19] Dr Huntsman observed that the level of intoxication and impairment for a given blood alcohol level is highly variable between individuals and that even in the same individual, a blood alcohol level will result in greater impairment when the level is rising on commencement of drinking compared to the same level when falling after several hours of intoxication, due to acute tolerance. Dr Huntsman noted that the -- 4 of 8 -- 5 actual level of impairment resulting from the blood alcohol level could not be established with certainty in the present case. However, Dr Huntsman concluded that, even on a reading of 0.1% BAC as at the time of the incident, the defendant’s blood alcohol reading was not sufficiently high to result in any symptoms likely to resemble psychosis. [20] Dr Huntsman noted that the intoxicant effects of cannabis and diazepam resolve after a few hours and discounted intoxication from those substances as a factor in the present case. [21] In his subsequent reports, Dr Huntsman reiterated his view that the defendant’s psychosis was not due to or brought on by alcohol or drug use. He maintained that the level of alcohol in the defendant’s blood was not high enough to result in symptoms resembling psychosis. He observed that over the years of treating the defendant, he had not observed him to suffer an exacerbation that could “directly” be attributed to drug use. He considered it likely that the exacerbation of his condition was “primarily” due to non-compliance. [22] While he expressed the view that the defendant’s psychotic state did not result to any extent from intentional intoxication, Dr Huntsman nevertheless conceded in his oral evidence that he could not rule out intoxication by alcohol as affecting the defendant’s mental state at the relevant time. When questioned further as to whether intoxication contributed to some extent to the state of mind resulting in deprivation of the relevant capacity, Dr Huntsman appeared to qualify the views expressed in his report. He said that: “[the defendant] was psychotic, I am saying alcohol had an effect, and as such, it’s a contributing factor”. [23] He gave the following evidence when asked about the defendant’s driving on the day in question and the role of intoxication: “… [the driving] is completely out of control, …; it's not just disinhibited, it's beyond the normal kind of experience and, to me, that's consistent with his psychosis. Then, are you saying that intoxication played absolutely no part in his behaviour on that day?-- Look, I think it's very hard to say that. You know, we know alcohol intoxication has an effect and we know the effects that it has. I guess it's just that, to me, it's a factor but it's not the main factor. … … it's a factor in the accident. And, you know, if someone is psychotic and you then superimpose the effect of drugs on that psychosis, then, you know, you can see that it may influence the way that psychosis is expressed.” Dr Coyle’s evidence [24] Dr Coyle provided two reports. He was initially sceptical about the accuracy of the BAC readings, but accepted them after DNA testing confirmed the blood sample to be that of the defendant. He accepted that the defendant’s psychomotor performance at the time of the accident would have been deleteriously affected by -- 5 of 8 -- 6 intoxication through alcohol consumption. However, Dr Coyle considered that, at the time of the accident, the defendant was suffering from paranoid schizophrenia and actively delusional. He based his opinion on the various witnesses’ descriptions of the defendant’s erratic and maniacal driving just before the accident, the defendant’s limited recall of events following the accident and the account given to him by the defendant. He also relied on the observations of Dr Huntsman. Dr Kingswell’s evidence [25] Dr Kingswell saw the defendant on 8 and 30 December 2005. Dr Kingswell agreed that, if accepted, the defendant’s history concerning the events of 9 October 2004, which involved having heard voices telling him to drive fast, was suggestive of the presence of a psychosis, most likely an exacerbation of a paranoid schizophrenia. [26] However, Dr Kingswell was unable to share the view of Dr Huntsman that the defendant was indeed floridly psychotic at the relevant time. And on a more fundamental level, Dr Kingswell also expressed doubts as to the subsequent history reported by the defendant of his driving given the defendant’s late account (provided many months after the event) and the lack of contemporaneous records to support its veracity. In particular, he noted that no history consistent with psychosis emerged when the defendant was seen by Dr Muhic, Mr Pedley, or Dr Purssey. Rather the conclusion reached was one of a chronic schizophrenia in remission. While Dr Kingswell agreed that the contemporaneous records did not exclude the defendant’s version, in his opinion, they made it less likely that the defendant was experiencing a psychotic illness at the relevant time. [27] Thus, although Dr Kingswell accepted that the defendant’s conduct at the time of the accident was clearly indicative of an abnormal state of mind, he was not prepared to find that it was indicative of a psychotic disorder operative at that time. He considered that the statements given by the witnesses as to the defendant’s conduct, at the golf course, whilst driving and immediately afterwards, were consistent with the manifestation of either a mental illness or intoxication. Dr Kingswell conceded that if the defendant’s claims that voices were urging him to drive quickly were accepted, the defendant would have been, as a result of his state of mind, deprived of the capacity to know that he ought not do the act. But even so, Dr Kingswell opined that that mental state was in part contributed to by intoxication with alcohol and cannabis. Conclusion [28] It is apparent that the defendant suffers from paranoid schizophrenia. There is a strong history of poly-substance abuse and of episodic mental illness, complicated by drug abuse and non-compliance, and initially the defendant’s illness was seen in terms of a drug induced psychosis. [29] Opposing views were expressed by Dr Huntsman and Dr Kingswell as to whether at the time of the course of driving in question the defendant was experiencing a psychotic episode. I note that Dr Huntsman did not have the opportunity to assess the defendant shortly after the events in question, as did Dr Muhic who found no evidence of psychosis, although aware of his psychiatric history. -- 6 of 8 -- 7 [30] Dr Huntsman based his assessment that the defendant was floridly psychotic at the relevant time in part on his observations of the defendant’s behaviour and mental state in the period prior to and during his hospitalisation in September 2004 and subsequently in November 2004 after he was granted bail. He also relied on the defendant’s account and on descriptions of the defendant’s behaviour from witness statements. Dr Kingswell however did not consider the witness statements to be of much assistance and did not see them as clearly pointing to psychosis as opposed to conduct influenced by intoxication. He was particularly concerned with the late reporting of psychotic symptoms and the lack of contemporaneous documentation to support any psychosis operative at the relevant time in the reports of the doctors who examined the defendant. [31] In offering her advice to the court, Dr Lawrence also expressed doubt from a clinical point of view as to the presence of an active psychosis at the time of the events in question. In this regard, Dr Lawrence favoured the view of Dr Kingswell that the statements of the witnesses were capable of being interpreted other than as evidence of an operative psychosis. She also considered pertinent that Dr Huntsman, whom the defendant had known for many years and who had had the opportunity to examine the defendant after his release on bail about a month after the events in question, had not been able to elicit the account now relied upon by the defendant; that account was only revealed to him some months later. She saw as significant that the defendant was seen some five hours after the events by a psychiatry registrar at the Gold Coast Hospital, who was aware of the defendant’s past psychiatric history, yet was unable to elicit any psychotic symptoms. Nor were such symptoms found by Mr Pedley, an experienced forensic psychologist, who saw the defendant some days later, nor by Dr Purssey, despite a very detailed assessment. [32] A finding of unsoundness of mind should be made only in reliance on clear and convincing evidence and upon a firm satisfaction consistent with the gravity of the proceeding, as was stated in R v Schafferius [1987] 1 Qd R 381 at 383. Schafferius is not to be read as excluding a finding in all but the clearest of cases (Attorney- General of Queensland v Kamali [1999] QCA 219 at [9]). However, given the matters raised by Dr Kingswell and endorsed by Dr Lawrence, I am unable to be satisfied to the requisite extent that the defendant’s late account as to his driving ought to be accepted and that he was suffering a disease of the mind, namely a psychosis, at the relevant time. Accordingly, I find that at the relevant time the defendant was not of unsound mind. [33] I would add that even if I were otherwise satisfied as to the existence of a mental disease operating at the relevant time, I would have difficulty in concluding in the present case that intoxication was not an issue. In this regard, I note that Dr Kingswell considered intoxication by alcohol consumption was a contributing factor to the state of mind resulting in a relevant deprivation, a view that Dr Lawrence, one of the assisting psychiatrists, also favoured. I also note that Dr Huntsman was unable to rule out intoxication as a contributing factor and conceded that it “may influence the way that [the defendant’s] psychosis is expressed”. I observe that there is some question as to the actual BAC at the time of the driving the subject of the charge and as to the actual quantity and sequence of consumption of alcohol by the defendant. However, as it transpired, the defendant’s counsel accepted that the relevant reading at the time of the events in question was one of between 0.07% and -- 7 of 8 -- 8 0.11% BAC and the differing opinions offered Dr Kingswell and Drs Huntsman and Coyle were largely premised on that position. Findings and orders [34] I find that the defendant was not of unsound mind at the time of the alleged offence. The defendant is fit for trial. Accordingly the proceedings are to continue according to law. -- 8 of 8 --