Connon , Re [2007] QMHC 1

MENTAL HEALTH COURT CITATION: Re Connon [2007] QMHC 001 PARTIES: REFERENCE BY THE DIRECTOR OF MENTAL HEALTH IN RESPECT OF JAMES CONNON PROCEEDING: Proceeding No 0088 of 2006 DELIVERED ON: 2 February 2007 DELIVERED AT: Brisbane HEARING DATE: 30 January 2007 JUDGE: Philippides J ASSISTING PSYCHIATRISTS: Dr Wood Dr Lawrence FINDINGS AND ORDER: 1. In respect of the alleged offences of attempted murder, dangerous operation of a motor vehicle causing grievous bodily harm or death and failure to stop at the scene of an accident: a. the defendant was of unsound mind as described in Schedule 2 of the Mental Health Act 2000 (Qld) (“the Act”) at the time of the commission of those alleged offences b. the defendant be detained as a forensic patient to The Park High Security Program Authorised Mental Health Service (“The Park”) for involuntary treatment and care c. limited community treatment be approved in the nature of escorted leave (on and off the grounds of The Park) and closed bus trips on the conditions that: i. the patient is to remain under the escort of health service staff members nominated by the authorised psychiatrist for the duration of the limited community treatment; and ii. for the purposes of escorted limited community treatment, the patient comply with the directions of the nominated staff members for the duration of the limited community treatment 2. In respect of the alleged offences of possession of a dangerous drug and possession of a utensil or pipe for use in connection with a dangerous drug: a. the defendant was not of unsound mind as described in Schedule 2 of the Act at the time of -- 1 of 9 -- 2 the commission of those alleged offences b. the defendant is fit for trial c. proceedings in respect of those alleged offences continue according to law d. the defendant be detained pursuant to s 273(1)(b) of the Act in The Park until granted bail under the Bail Act 1980 (Qld) or brought before a court for continuing the proceedings e. limited community treatment is approved in the nature of escorted leave (on and off the grounds of The Park) and closed bus trips and on the same conditions as in order 1 CATCHWORDS: MENTAL HEALTH – DECLARATION OR FINDING OF MENTAL ILLNESS OR INCAPACITY – where defendant charged with counts of attempted murder, dangerous operation of a motor vehicle, failure to stop at the scene of an accident, possession of a dangerous drug and possession of a utensil or pipe for use in connection with a dangerous drug – whether the defendant suffered from mental illness at the time of the alleged offences – whether the defendant deprived of a relevant capacity at the time of the alleged offences – whether forensic order should be made Mental Health Act 2000 (Qld), s 273 (1)(b), Schedule 2 COUNSEL: Mr S R Lewis for the defendant Mr W Isdale for the Director of Mental Health Mr M R Byrne for The Director of Public Prosecutions SOLICITORS: Ryan & Bosscher for the defendant Crown Law for the Director of Mental health The Director of Public Prosecutions (Qld) [1] PHILIPPIDES J: The defendant, James Connon, a 41 year old man, is charged with three counts of attempted murder, three counts of dangerous operation of a motor vehicle causing grievous bodily harm or death, one count of failure to stop at the scene of an accident, one count of possession of a dangerous drug and one count of possession of a utensil or pipe. The defendant’s mental condition at the time of the alleged offences has been referred to this court. Circumstances of the Offences [2] All the alleged offences occurred on 6 October 2005. The defendant, who was driving along a road, swerved off the road and drove his car into three school children who were a few metres away from the roadway and waiting to cross the road with their bikes. After hitting the children the defendant sped off. The injuries sustained by the children consisted of broken bones, cuts and abrasions and it was most fortunate that fatal injuries were not inflicted. -- 2 of 9 -- 3 [3] Witnesses immediately notified the police of what had happened, giving a description of the defendant’s vehicle, and the police were soon able to intercept the defendant. He made statements to the police at the scene and made admissions that he had deliberately swerved to hit the children and intended to kill them. When asked why he had acted as he did he told police that he had been “terrorised” for years in New South Wales and that the same people had been terrorising him in Gympie. He mentioned, when asked, that he had braked “a little bit” when he hit the children, but said that he did not mean to do so, stating he “was going to kind of plough through them”. He said that the children were strangers to him. He stated a number of times that he meant to kill the children and that that was why he had run them over. He told the police that he wanted to get the matter before a court, because when he had complained to the police he was told he was mentally ill. [4] In a later interview he reiterated to the police he intended to kill the children because he “wanted to put an end to this”. He mentioned being persecuted for nine years by people with television stations and that the military was involved. He believed that these people had bugged his house and that his neighbours were trying to poison him. He told police that his reason for wanting to kill the children was to get the police involved in his life so that they could discover the bugging and poisoning. He also then told police that prior to the alleged offences he had driven past a school and “saw approximately 50 children on the road side and would have driven into the crowd then if not for the slow moving traffic”. He said he did not stop at the scene of the accident because he wanted to kill the children. [5] A breath test carried out gave a reading of zero. However, the defendant admitted smoking two cones of marijuana that morning and the police subsequently found cannabis and a bong at the defendant’s address. Patient’s Psychiatric History [6] The defendant has a 20 year history of a chronic paranoid schizophrenia that has been characterised by persecutory, religious, grandiose and referential delusions, perceptual disturbance, passivity phenomena, evidence of negative syndrome and a significant decline in social and occupational functioning. The defendant also has a history of cannabis abuse since about the age of 15, although there have been periods of abstinence including a three year period from 1997 to 2000. [7] The defendant has suffered a long documented history of schizophrenia and was first diagnosed with a psychotic illness when admitted to the Nepean Hospital in New South Wales in 1997. His long term partner reported that the symptoms settled with treatment. However, the defendant has had poor insight into his condition and ceased treatment sometime between 2000 and 2002. Thereafter, he remained untreated until his admission to The Park High Security Program Authorised Mental Health Service (“The Park”) in January 2006, after having been seen by the Prison Mental Health Services some months after his incarceration. -- 3 of 9 -- 4 Charges of attempted murder/dangerous operation of a motor vehicle causing grievous bodily harm or death/failure to stop at the scene of an accident Dr Kar’s report and evidence [8] The defendant was interviewed by Dr Kar on 13 January 2006 via video-link for the purposes of providing a pre-sentence report. In his report dated 13 January 2006, Dr Kar stated that during the assessment, the defendant showed paranoid persecutory delusions of being followed and stated that his food and drink were being poisoned. He reported chronic ongoing auditory hallucinations and had delusions of reference. Dr Kar diagnosed chronic paranoid schizophrenia and chronic marijuana abuse. In respect of the alleged offences, the defendant initially claimed that he had suffered dizzy spells and that before he hit the children he had “passed out, blacked out”. He claimed to have a memory gap. [9] However, as the interview progressed it became apparent that the defendant was able to describe his state of mind at the relevant time and his motivation for his actions. The defendant genuinely believed that he was being persecuted. Dr Kar considered that the motivation for the defendant’s actions was that he believed that he was retaliating against his persecutors, whom he believed had followed him from New South Wales and who were, he said, “everywhere”. Dr Kar observed that the defendant’s psychiatric illness was so serious, given he had acted on his delusions, that he constituted such a significant risk to the community so as to require treatment in a secure setting. [10] Although Dr Kar considered that the defendant’s motivation was one of retaliating against his imagined persecutors, he opined that at the time of the incident, the defendant knew what he was doing and that what he was doing was wrong and did not consider that there was any loss of control by the defendant in respect of his actions. However, Dr Kar accepted that he had not had the opportunity at the time of his report to explore all the relevant collateral material, including the statements made to the police, and that he may have refined his opinion as to unsoundness if he had had that opportunity. Dr Voita’s reports [11] Dr Voita, who has been the defendant’s treating psychiatrist since his admission to The Park, provided two reports. The report of 11 April 2006 specifically addresses the issue of the defendant’s mental condition at the time of the alleged offences. For the purposes of that report, she interviewed the defendant extensively on a number of occasions and obtained a detailed history and had access to all the collateral material. [12] The defendant reported experiencing persecutory delusions concerning his neighbours in New South Wales for some nine years. The severity of the delusion caused such distress to the defendant that he could not cope and he decided to leave his home in New South Wales and move to Queensland. He tried unsuccessfully to persuade his de facto to leave also, as he feared that his persecutors would endanger her life also. He went to live with his brother in Gympie, but continued experiencing persecutory delusions concerning his new neighbours which extended also to the government and military. He believed his neighbours were poisoning him by breaking into his home and tampering with drink bottles. He reported that -- 4 of 9 -- 5 he thought he might have been God because of his initials “JC - like Jesus Christ”. He believed that he had special abilities such as walking on water. He also complained that he had written books and that his neighbours had stolen these and wanted to kill him in order to take credit for the books. He described delusions of reference from the television. He admitted to thinking prior to the offences that he would like to go to jail because he would be safer there from his persecutors and that medical tests would prove that he was being poisoned. [13] Dr Voita observed that initially the defendant gave contradictory accounts to her concerning the circumstances of the offences. In an interview on 30 March 2006, he claimed that on the day in question he became dizzy and blacked out and did not know that he had run down the children and said that he could not remember telling the police that he had acted deliberately, although he went on to state that he thought he could get an investigation into the persecution against him if he admitted to the police that he had committed the offences. He claimed that he had left the scene because his car was uninsured. [14] In an interview with Dr Voita on the following day (31 March 2006), the defendant admitted that he had previously been untruthful to her. He told her that he had smoked two cones of cannabis on the day in question. He said that in the afternoon he felt nauseous and believed that he had been poisoned by the Coca- Cola that he had drunk and did not wish to be found dead by his young nieces (as he himself had found his father) and left the house in his car intending to drive to the river in order to die there. He reported seeing a large group of children and thought of running them down but then changed his mind. He said he knew he could not do it because he knew it was wrong. However, as he continued driving he saw another group of three children and “just swerved”. He said that it was an impulse that he could not control. A split moment later he could not go through with it and braked. He realised he had hit the children and was sorry, but could not stop himself. He said that he “lost it”. He believed his car was bugged and he was yelling out “see what you made me do” believing that his persecutors could hear him. He admitted on the occasion of the interview on 31 March 2006 that he had also lied about his reason for leaving the scene of the accident and said that he had in fact left because he wanted to go home so that the police would come to his house and find the bugging devices. He believed that he would thus expose his persecutors. [15] Dr Voita concluded that at the time of the alleged offences the defendant was suffering from chronic paranoid schizophrenia and acutely psychotic. She supported a defence of unsoundness of mind and considered that the defendant’s actions were motivated by delusional ideas. She opined that the defendant was so preoccupied with his delusional ideas that he was unable to reason that he should not do the act. He believed that he was being poisoned and was going to die and was overwhelmed by his need to have the police investigate and to expose his persecutors. While Dr Voita was of the view that at the relevant time the defendant was deprived of the capacity to know that he ought not to do the act, she did not consider that he was deprived of the capacity to understand or control his actions. [16] Dr Voita considered that the defendant also satisfied the criteria for a diagnosis for cannabis abuse. However she discounted intoxication from cannabis as contributing to his state of mind at the relevant time, concluding that his mental illness was of such severity that it would in itself have been sufficient to deprive him of the capacity to know that he ought not to do the acts the subject of the offences. In this -- 5 of 9 -- 6 regard she observed that for the three and a half months during which he was incarcerated prior to receiving treatment in the form of antipsychotic medication he remained floridly psychotic. Dr Varghese’s report and evidence [17] Dr Varghese provided a report dated 10 October 2006 after interviewing the defendant and conducting a detailed review of the material, including the reports of Dr Voita, Dr Kar, the police brief and the records from The Park. Dr Varghese supported the clinical view of Dr Voita that at the time of the alleged offences the defendant was suffering from paranoid schizophrenia with persecutory delusions. He considered that the defendant’s conduct in driving at the children was in response to his delusional thinking as well as to hallucinatory experiences. He considered that the defendant was in such a state of delusional ideation, where he expected that he would be killed, that that was the driving force behind his behaviour and took precedence over anything else. [18] Dr Varghese did not consider that the defendant was deprived of the capacity to understand what he was doing, but concluded that on balance the defendant was deprived of the capacity to know that he ought not to do the act and also of the capacity to control his actions in as much as the mental aspect of control was missing. In his oral evidence, Dr Varghese had regard to the issue of the changed account given by the defendant to Dr Voita concerning his failure to run down the larger group of children, but saw that in terms of the defendant attempting to rationalise his conduct when no longer psychotic. He did not consider that there was cause for him to alter his opinion as to deprivation of capacity because of that or the account of braking, although he ultimately preferred the view that, because of the intensity of the defendant’s delusions, there had been a deprivation of control. [19] Dr Varghese was of a similar view as Dr Voita in discounting the defendant’s psychotic state at the time of the incident as cannabis related. He believed that the defendant’s schizophrenia was independent of the cannabis use and also regarded as significant that when the defendant was in Maryborough Correctional Centre and not using cannabis, he remained psychotic. Dr Schramm’s report and evidence [20] Dr Schramm was engaged to provide a report on behalf of the defendant. He also reviewed the material comprehensively. He diagnosed the defendant as suffering from schizophrenia (paranoid type) and cannabis abuse (in remission). He also concluded that at the relevant time the defendant acted whilst preoccupied with psychotic experiences and delusions. In addition to those chronic fears, on the day in question, the defendant believed that he had been poisoned and was about to die and felt that he had no other option with regards this persecution other than to draw attention to it in some dramatic fashion. Dr Schramm observed that the defendant had the belief that this behaviour was not only justified in his own mind, but that it would be seen by “the world” as such once they discovered the degree of his persecution. Dr Schramm concluded that the defendant’s motivation for the offence was bizarre and there was no other explanation beyond a delusionally driven imperative to explain his behaviour. -- 6 of 9 -- 7 [21] According to Dr Schramm, the state of mind of the defendant was of such a severe degree of disturbance, that the defendant was unable to reason about the wrongness of his actions and that the defendant was deprived of the capacity to understand that he ought not commit the act. He was of the view that, if the capacity for control was seen as including a mental element, the same forces that had overborne the defendant’s capacity to know that the conduct was wrong had also overwhelmed that mental aspect of the capacity for control. But there was no loss of control in the physical sense, that is over motor actions. Dr Schramm did not consider that the defendant was deprived of “the awareness of his actions”. [22] Dr Schramm noted, as Dr Voita had, that the defendant’s previous seemingly exculpatory accounts of his running over the children after passing out had been recanted. Dr Schramm accepted that an argument might be made that the defendant had some awareness of the wrongness of his actions, given his account that he had seen some children before the alleged offences, but had decided not to run over them and also because of his comments of having braked just prior to the impact with the children, but discounted that argument. Dr Schramm saw those brief moments as moments of doubt in a sea of certainty that his actions were justified, if not necessary and in the context of significant evidence of a very disturbed mental state. In his view there were conflicting processes in action and the decision to drive his car at the children was made in this confused state of mind which was overwhelmed by psychotic thinking. He also noted that the earlier account given by the defendant to the police as to why he had not driven at the larger group (that the traffic was too slow) further supported his conclusion in this regard. Moreover, he opined that the defendant’s action in applying the brakes just prior to impact reflected a reflex action and should not be taken as evidence that he was thinking clearly enough to change his mind or consider his actions with any degree of rationality. [23] As regards the question of intoxication, Dr Schramm did not consider that the cannabis taken on the day at least five hours before the incidents would have resulted in the defendant’s intoxication. He did not consider that the defendant’s psychotic illness was precipitated by, nor allowed to continue, by virtue of the use of cannabis. He also pointed to the fact that the defendant remained floridly psychotic many months after being incarcerated and abstinent from regular use of substances. [24] Dr Schramm’s opinion with regards to unsoundness of mind also applied to the charge of leaving the scene, in that he considered the defendant acted under the delusional notion that he would be found by police who would then uncover his persecution. Findings [25] On the material before the court and having regard to the expert clinical opinions, I am satisfied that at the time of the alleged offences the defendant was of unsound mind. The evidence clearly indicates that the defendant was suffering from paranoid schizophrenia of long standing and was seriously psychotic at the time. Other than Dr Kar, the expert evidence is united in concluding that, as a result of his psychiatric condition, the defendant was deprived of at least one of the relevant capacities, although there is some divergence as to which capacity was deprived. In respect of the issue of deprivation of capacity, I am unable to prefer the opinion of -- 7 of 9 -- 8 Dr Kar over that of the other experts, which included the defendant’s treating psychiatrist, who has had the benefit of more extensive interviews with the defendant,. I note that Dr Kar was at some disadvantage, in that when he provided his opinion, which was for the purposes of a pre-sentence report rather than one solely focussing on the issue of soundness of mind, he did not have access to the additional material that the other experts had in providing their reports. I also observe that Dr Kar accepted that he may well have refined his opinion as to unsoundness if he had received all the material. [26] In coming to the conclusion that I have, I obtained considerable assistance from the views of the assisting psychiatrists who also favoured the expert opinion evidence supporting a defence of unsoundness of mind at the relevant time. Both assisting psychiatrists considered that the evidence indicated that the defendant was, as a result of his extensive and long standing delusional beliefs, deprived of both the capacity to know he ought not to do the acts and the capacity of control. Dr Lawrence observed in particular that the evidence concerning the defendant’s acts of braking did not alter that conclusion, observing that ambivalent and conflicting thoughts were not inconsistent with delusional thinking. Forensic Order [27] Since his admission to The Park the defendant has been placed on antipsychotic medication. It has resulted in a speedy resolution of his auditory hallucinations for the first time in many years. In her report of 11 April 2006 Dr Voita stated that the defendant’s insight had improved, but was not complete, and that he continued to have concerns that were he to leave hospital his persecution may continue in the community. In her more recent report of 15 January 2007, she noted that those concerns have resolved with the defendant’s continued compliance with medication and treatment and that he has developed insight into his illness. His dosage of risperidone has been decreased and the defendant continues to remain free of psychotic symptoms on the reduced dosage. Dr Voita indicated that the defendant currently requires ongoing inpatient treatment in a high security unit and that he is presently adequately placed. [28] The clear expert evidence and the advice of the assisting psychiatrists is that a forensic order is warranted in the present case, given the seriousness of the alleged offences, the defendant’s treatment needs and the protection needs of the community. In those circumstances, I order that the defendant be detained as a forensic patient in The Park. [29] Since 19 May 2006 the defendant has been permitted to access escorted leave on the grounds of The Park and closed bus trips. There have been no difficulties with any of the leave accessed. It was submitted in those circumstances that limited community treatment be approved in the nature of escorted leave on and off the grounds of The Park and closed bus trips in accordance with the draft submissions tendered on behalf of the Director of Mental Health. Those submissions are supported by the assisting psychiatrist. In the circumstances I approve limited community treatment in accordance with those submissions. -- 8 of 9 -- 9 Charges of possession of dangerous drug/utensil [30] As to the alleged offences of possession of dangerous drug and possession of a utensil, there is no clinical evidence to support a finding that the defendant was of unsound mind. To the contrary it appears from the material that the defendant was aware that cannabis was an illegal substance and of the consequences of using it. In her report of 15 January 2007 Dr Voita indicated her opinion that the defendant is fit for trial. [31] Accordingly, I find that at the time of those alleged offences, the defendant was not of unsound mind. I find that the defendant is fit for trial. The proceedings in respect of those charges are to continue according to law. As the defendant is currently a classified patient, it is also appropriate to make an order as to custody under s 273(1)(b) of the Act requiring the defendant’s detention in the The Park until he is granted bail under the Bail Act 1980 (Qld) or he is brought before a court for continuing the proceedings and I so order. In respect of that order I approve limited community treatment on the same terms as approved in respect of the forensic order. -- 9 of 9 --