Clough, Re [2007] QMHC 2

MENTAL HEALTH COURT CITATION: Re Clough [2007] QMHC 002 PARTIES: REFERENCE BY THE DIRECTOR OF MENTAL HEALTH IN RESPECT OF COLIN CLOUGH PROCEEDING: No 254 of 2005 DELIVERED ON: 23 February 2007 DELIVERED AT: Brisbane HEARING DATE: 14 February 2007 JUDGE: Philippides J ASSISTING PSYCHIATRISTS: Dr Wood Dr Lawrence FINDINGS AND ORDERS: 1. The defendant was not of unsound mind as described in Schedule 2 of the Mental Health Act 2000 (Qld) at the time of the commission of the alleged offence. 2. The defendant was not of diminished responsibility at the time of the commission of the alleged offence. 3. The defendant is fit for trial. 4. The proceedings are to continue according to law. CATCHWORDS: MENTAL HEALTH – DECLARATION OR FINDING OF MENTAL ILLNESS OR INCAPACITY – where defendant charged with murder – where psychiatric opinion indicated the defendant was suffering from a psychotic condition at time of alleged offence – where evidence that defendant was in state of voluntary intoxication from amphetamine consumption at time of alleged offence – whether the defendant was deprived of the capacity to know that he ought not do the act – whether intoxication contributed to that deprivation – whether defendant’s capacity to know that he ought not do the act was substantially impaired – whether that impairment was caused by a state of abnormality of mind – whether that impairment was caused or contributed to by self- induced intoxication Mental Health Act 2000 (Qld), Schedule 2 Criminal Code 1899, s 304A R v Cannon [1997] QCA 334 (cited) R v Fenton (1975) 61 Cr App R 261 (cited) R v Gittens [1984] QB 698 (cited) R v Miers [1985] 2 Qd R 138 (cited) R v Nielsen [1990] 2 Qd R 578 (cited) R v Rolph [1962] Qd R 262 (cited) -- 1 of 7 -- 2 R v Whitworth [1989] 1 Qd R 437 (cited) COUNSEL: Mr R A East for the defendant Mr J Tate for the Director of Mental Health Mr S Vasta for The Director of Public Prosecutions SOLICITORS: Legal Aid (Qld) 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 Clough [2010] QCA 120) [1] PHILIPPIDES J: The defendant, Colin Clough, a 39 year old man, is charged with the murder of his wife. The defendant’s mental condition at the time of the alleged offence has been referred to this court. Circumstances of Offence [2] The defendant does not deny that he killed his wife, stabbing her several times with a kitchen knife. The incident occurred on 16 September 2005, at about 9.00 am at his mother’s house, where he and his wife were staying. They had gone to that address the previous night because the defendant did not feel safe at his own home. He awoke early on the day in question and began to feel anxious about having to return home and not feeling safe there. He believed that his wife and certain of his friends were in a conspiracy to kill him. He also believed his wife was having affairs with his friends. He told the police that by stabbing his wife, she would not be able to make him go home. [3] On admission to The Park High Security Program Authorised Mental Health Service (“The Park”) on 20 September 2006 he was assessed as being psychotic. He subsequently described delusions, predominantly concerned with a conspiracy involving his wife and a number of friends and acquaintances to kill him on or about his birthday, which became heightened, causing him to leave his house the night before the offence. [4] In his statement to the police, the defendant denied having used any drugs or alcohol on the morning of the offence. However, the defendant later told police that on 14 September 2005 (his birthday), he “celebrated” by contacting his dealer and acquired two $100 bags of speed. He estimated that each bag contained about .5 grams of “crystal” amphetamine and that he injected half a gram of amphetamine. He also said that he smoked approximately five cones of marijuana. The defendant subsequently reported to Dr Reddan that he had smoked some marijuana on 15 September 2005. [5] On his admission to The Park on 20 September 2005, four days after the stabbing, the defendant’s urine was tested and found to be positive for amphetamine and cannabinoids. -- 2 of 7 -- 3 Patient’s Diagnosis and Psychiatric History [6] The defendant has a history, since 2000, of regular (every three days or so, sometimes more regularly) intravenous amphetamine use. He has been using cannabis since his adolescent years and reported that in the last five years he had used up to twenty cones per day (and sometimes more). [7] The defendant was admitted to the Logan Mental Health Unit for twenty days in February 2003, when he was diagnosed with schizophrenia and substance abuse. In March 2003 he was admitted to the Health Unit for a further ten days, suffering from somatic delusions, derailment and persecutory ideation. He was diagnosed with psychosis secondary to non-compliance. [8] On 20 January 2005, the defendant was readmitted for five days. He was diagnosed with poly-substance abuse and paranoid schizophrenia. His mental state settled quickly with anti-psychotic treatment and abstinence from substance misuse. However, the defendant’s psychiatric management was complicated by his amphetamine and marijuana use and in March 2005 he was admitted for detoxification to the Royal Brisbane Hospital Alcohol and Drug Service. Following a period of abstinence from speed for about six weeks, the defendant reported “nil depression or psychotic symptoms”. However, he started to use amphetamines again in the months before the incident. Clinical Evidence [9] The court had the benefit of hearing evidence from Dr van de Hoef, consultant psychiatrist at The Park and the defendant’s treating psychiatrist, who has provided two reports, dated 31 October 2005 and 28 August 2006. The court also heard evidence from Dr Reddan, who provided a report dated 30 July 2006 and Dr Heffernan who provided a report dated 6 October 2006. Dr van de Hoef [10] In her first report of 31 October 2005, Dr van de Hoef supported a defence of unsoundness of mind. She considered that at the time of the alleged offence the defendant was suffering from a psychotic disorder, namely schizophrenia or possibly a drug induced psychosis. In her report of 28 August 2006, Dr van de Hoef opined that there was little doubt that the defendant had psychotic symptoms (persecutory delusions that he would be killed by others, including his wife) at the time of the offence. [11] However, she observed that the intensity of the symptoms in the three days before the stabbing waxed and waned. The defendant had returned to the house he said he subsequently fled from in fear of his life, several times, he spent some hours drinking and drumming with the friend he said he believed was part of the conspiracy and he spent hours with his wife, who he claimed was setting him up for torture and assassination. He also in the 48 hours after the stabbing said various things to a number of people, only some of which were clearly delusional or paranoid. Dr van de Hoef commented on the prospect of other contributing factors to the offence apart from psychosis; namely, domestic violence, jealousy arising from his wife’s infidelity (which was clearly not always regarded as delusional by his friends or family) and the belief that his wife and/or her family had instigated it. -- 3 of 7 -- 4 Dr van de Hoef noted that there was evidence of a history of violence by the defendant towards his wife. [12] In her oral evidence, Dr van de Hoef favoured a diagnosis of drug induced psychotic disorder at the relevant time, rather than schizophrenia. She considered that that diagnosis may also have applied during the five years he was regularly using and dependent on intravenous amphetamine. She also opined that it was possible that every time the defendant injected amphetamine, psychotic symptoms may have resulted or been exacerbated as part of an intoxication syndrome. She observed that the defendant’s past diagnosis of schizophrenia coincided with the onset of amphetamine use and that the fluctuating levels of intensity of psychotic symptoms over the years were almost always in the context of continuing use of intravenous amphetamine. [13] Dr van de Hoef came to the conclusion that there was no deprivation of the capacity to control his actions (since he contemplated stabbing his wife during the morning, concealed a knife in his pants for the purpose and locked the door of the room where he stabbed her to prevent her escape). Nor was there a deprivation of the capacity to understand his actions (his statements to the police made that clear). Initially Dr van de Hoef considered that the defendant was deprived of the capacity to know that he ought not do the act. But in her second report and in her oral evidence, she indicated that intoxication from amphetamine consumption was an issue at the time of the alleged offence. She was no longer able to conclude that, had the defendant not used cannabis or amphetamine in the days prior to the offence, he would still have had the persecutory delusions driving his thinking and behaviour which deprived him of the capacity to know he ought not do the act. [14] However, although she considered that the defendant’s mental condition at the relevant time, stemming from the substance induced psychotic disorder, was not probably of itself sufficient, in the absence of intoxication, to deprive him of the capacity to know he ought not do the act, she did conclude that it was sufficient alone to substantially impair that capacity. In this respect, she noted that the defendant’s delusions concerning his wife persisted for some time after the stabbing. Dr Heffernan [15] Dr Heffernan considered the defendant as suffering from substance induced psychotic disorder at the relevant time. He noted that the defendant had had numerous psychotic episodes which had occurred in the context of substance abuse and that the evidence indicated that, when the defendant had abstained from substances and was taking his medication, the psychotic symptoms improved or went into remission. He also expressed the view that at the relevant time, the defendant had an acute exacerbation of persecutory delusions related to a conspiracy to have him killed, centrally involving his wife. [16] Dr Heffernan considered that at the relevant time, the defendant was substantially impaired and indeed deprived of the capacity to know that he ought not do the act. Dr Heffernan opined that the incident occurred in the context of the defendant’s intoxication from recent amphetamine and marijuana use, a pre-existing vulnerability to developing a substance induced psychosis from recurrent drug use, and the presence of numerous psycho-social stresses. However, he was of the view -- 4 of 7 -- 5 that the major contributor was the intoxication, particularly from amphetamine use. He stated that the intoxicating effects of the amphetamines consumed by the defendant on 14 September 2005 were a “critical factor” in the escalation of the intensity of the defendant’s delusions and disorganised thinking and that intoxication therefore significantly contributed to the relevant deprivation and impairment of capacity. In this regard, Dr Heffernan observed that amphetamine was still detected to be present in the defendant’s system when testing occurred on 20 September 2005 and referred to the fact that the defendant’s symptoms remitted in the context of the hospital environment and with reducing doses of anti-psychotic medication. [17] In his oral evidence he expanded on the significant role he considered was played by the intravenous amphetamine consumption. In his view it acted both as an intoxicant and to exacerbate an underlying vulnerability so that it increased in intensity to the extent that there was ultimately an impairment and deprivation of the cognitive capacity. But importantly, the drug use resulted in intoxication which played a significant role in the defendant’s mental condition and the consequent deprivation and impairment of capacity. Dr Reddan [18] Dr Reddan also diagnosed substance induced psychotic disorder with delusions, in preference to one of schizophrenia. She considered that at the time of the stabbing the defendant was experiencing paranoid delusions concerning his wife and was deprived of the capacity to know he ought not do the act. Her clinical opinion was that the defendant may have been in a state of abnormality of mind so that he was also substantially impaired in his capacity to understand that he ought not kill his wife. [19] However, she agreed with Dr Heffernan’s opinion that the stabbing occurred in the context of a number of contributing factors (including intoxication and personal stressors and a history of drug induced psychosis) and also took the view that intoxication was a significance factor in the relevant deprivation and impairment. She accepted that the defendant’s mental state could be described as the outcome of both acute and chronic drug intake. Dr Reddan opined that, given the defendant’s drug use and the intermittent nature of his psychotic condition, it was likely that if he had not kept using amphetamines the psychosis would have gradually remitted. In her view the constant “topping up” maintained the psychotic thinking and probably exacerbated it. Was the defendant of unsound mind? [20] It is clear on the uniform views of the reporting doctors that the defendant was suffering from a psychotic condition at the time he stabbed his wife and that the condition is best described as a drug induced psychotic disorder. There is also no doubt in my view, given the clinical evidence, that the defendant was in a state of voluntary intoxication from amphetamines injected on 14 September 2005 and still present in his system on 20 September 2005. [21] There was general agreement among the reporting doctors that the defendant was deprived of the capacity to know that he ought not do the act at the relevant time. There was also general agreement that intoxication featured in that deprivation. In those circumstances, as counsel for the defendant accepted, the defendant cannot be -- 5 of 7 -- 6 afforded a defence of unsoundness of mind and I find that at the relevant time the defendant was not of unsound mind. Diminished Responsibility [22] The real issue in the present case is whether at the relevant time the defendant was of diminished responsibility as described in Schedule 2 of the Mental Health Act 2000, where the term is defined as “the state of abnormality of mind described in the Criminal Code, section 304A”. Section 304A(1) of the Criminal Code provides: “Diminished responsibility (1) 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.” [23] It must be shown that the state of abnormality of mind is directly related to one of the causes prescribed in s 304A of the Criminal Code (ie. a condition of arrested or retarded development of mind, inherent causes, disease or injury). A state of abnormality of mind for the purposes of s 304A goes beyond the limits marked out by the variety of intelligence and disposition in the community generally: R v Rolph [1962] Qd R 262 at 288. It excludes extremes of common propensities or emotions such as prejudice, anger or jealousy. Likewise a state of mind resulting from the temporary effects of intoxication, as distinct from the enduring damage occasioned thereby, is not an abnormality of the mind for the purposes of s 304A; nor is it to be regarded as a valid contributing cause to an abnormal state of mind: R v Whitworth [1989] 1 Qd R 437 at 446; R v Cannon [1997] QCA 334. Accordingly, a defendant’s self-induced intoxication was not an abnormality of mind: R v Nielsen [1990] 2 Qd R 578 at 581-582; R v Miers [1985] 2 Qd R 138 at 141; R v Fenton (1975) 61 Cr App R 261 at 263-264; R v Gittens [1984] QB 698 at 703. [24] The question in the present case is whether, absent the intoxication, the defendant’s psychosis present at the relevant time was itself sufficient to result in such a state of abnormality of the mind as to substantially impair the capacity in question. Having regard to the evidence and the clinical views expressed, I am unable to conclude that the substantial impairment evident at the time of the stabbing can be attributed to the defendant’s psychotic disorder alone and that the impairment would, on the balance of probabilities, have occurred even in the absence of intoxication. [25] Only Dr van de Hoef considered that the psychosis alone was sufficient to have substantially impaired the defendant. Her view, as that of the treating psychiatrist, is of course to be accorded due weight and respect. However, the issue of the role of intoxication was one with which she clearly struggled, as she herself readily acknowledged, having altered her position with regard to the matter of whether deprivation would have occurred in the absence of intoxication. She agreed that intoxication was “the straw that broke the camel’s back”. -- 6 of 7 -- 7 [26] While Dr van de Hoef evidently gave the matter much thought, on a consideration of the evidence as a whole, I prefer the opinion of Dr Heffernan that the defendant’s state of mind at the relevant time was the result of a combination of factors, including self-induced intoxication, and that intoxication was a significant element in the defendant’s mental state and in the relevant impairment of capacity. That was also the conclusion of Dr Reddan, although she emphasised the difficulty in teasing out the intoxication as an operative cause of the impairment. It was also the view favoured by the assisting psychiatrists. [27] The evidence indicates that the defendant had a psychotic illness, for which he was hospitalised both before and after the stabbing, which was characterised by paranoid delusions, amongst other features. However, the psychosis was of a fluctuating nature and the defendant had without incident previously suffered from the delusions concerning his wife, which on 16 September 2005 drove him to stab her fatally. The defendant’s psychiatric history is one of psychotic experiences occurring in the context of drug use. The defendant’s psychotic symptoms steadily subsided following abstinence from amphetamine and cannabis on his admission to The Park. Taking into account the whole of the evidence, the clinical opinions and the advice of the assisting psychiatrists, I consider that voluntary intoxication was a contributing factor to the substantial impairment of the capacity in issue. I therefore find that the defendant was not of diminished responsibility at the time of the alleged offence. [28] The evidence before the court indicates that the defendant is fit for trial. Accordingly, the proceedings are to continue according to law. -- 7 of 7 --