Crematy, Re [2006] QMHC 24

MENTAL HEALTH COURT CITATION: Re Crematy [2006] QMHC 24 PARTIES: REFERENCE BY THE DIRECTOR OF MENTAL HELATH IN RESPECT OF ADRIAN ANTHONY CREMATY PROCEEDING: No 236 of 2005 DELIVERED ON: 10 October 2006 DELIVERED AT: Brisbane HEARING DATE: 5 and 6 October 2006 JUDGE: Philippides J ASSISTING PSYCHIATRISTS: Dr J F Wood Dr J M Lawrence FINDINGS AND ORDERS: 1. Finding that at the time of the alleged offences of 31 May 2005, the defendant was suffering from unsoundness of mind as described in Schedule 2 of the Mental Health Act 2000 (Qld); 2. Finding that at the time of the alleged offences of possession of drugs and possession of instructions on 13 August 2004, the defendant was not suffering from unsoundness of mind as described in Schedule 2 of the Mental Health Act 2000 (Qld); 3. Finding that there is a reasonable doubt that the defendant committed the alleged offences of trafficking from 1 January 1994 to 14 August 2004, supplying dangerous drugs in June 2004 and the possession of property suspected of being the proceeds of an offence on 13 August 2004; 4. Finding that the defendant is presently unfit for trial, and that the unfitness is not of a permanent nature; 5. Order that the defendant be detained as a forensic patient in the Gold Coast District and Area Network Authorised Mental Health Service; 6. Approve escorted limited community treatment on the grounds of the hospital at the discretion of the treating psychiatrist on the following conditions: (a) that the defendant is to remain under the escort of health service staff member/s nominated by the authorised psychiatrist for the duration of the limited community treatment; -- 1 of 9 -- 2 (b) for the purposes of escorted limited community treatment, the defendant complies with the directions of the nominated staff member/s for the duration of the limited community treatment. CATCHWORDS: MENTAL HEALTH – DECLARATION OR FINDING OF MENTAL ILLNESS OR INCAPACITY – where defendant charged with trafficking and a number of other drug offences, enter a dwelling with intent, and possession of property suspected of being the proceeds of a crime – whether a reasonable doubt as to the commission of some of the alleged offences – whether intoxication contributed to commission of alleged offences – whether defendant was of unsound mind as defined in Schedule 2 of the Mental Health Act 2000 (Qld) in respect of those offences – whether defendant fit for trial Mental Health Act 2000 (Qld) Schedule 2 COUNSEL: Mr A Kimmins for the Defendant Mr J Tate for the Director of Mental Health Mr G Cash for the Director of Public Prosecutions SOLICITORS: Price and Roobottom for the Defendant Crown Law for the Director of Mental Health The Director of Public Prosecutions (Queensland) [1] PHILIPPIDES J: The defendant, Mr Adrian Crematy, is charged with 13 offences, comprising: • trafficking in a dangerous drug between 1 January 1994 and 14 August 2004; • 4 charges of supplying the dangerous drug methylamphetamine in June 2004; on 4, 10, 19 and 28 June 2004; • 3 charges of possession of dangerous drugs on 13 August 2004; • possession of instructions for growing the dangerous drug cannabis sativa on 13 August 2004; • possession of property suspected of being the proceeds of an offence on 13 August 2004; • 3 charges for offences allegedly committed on 31 May 2005. [2] The alleged offences of 13 August 2004 arise out of the execution of a search warrant at about 6.15 am on that day at premises at Bonogin occupied by the defendant. In the course of the search police found 2.6 grams of cannabis sativa and six bottles of the steroid sustanol. They also found 9.3 grams of cocaine in the pants the defendant was wearing. In addition, the police located instructions on how to grow cannabis hydroponically. They also seized a large amount of property, including a wave runner, a motor cycle, TV, mobile phone and other items. [3] The defendant was arrested and participated in a record of interview later that day. In the interview the defendant told police that the previous evening he had consumed alcohol (a Jack Daniels and coke) and had used cannabis, but made no -- 2 of 9 -- 3 mention of any other drug use. However, the defendant later reported to a psychiatrist that he had used cocaine at about 2.00 am on the morning of his arrest. [4] During the police search the defendant denied knowledge of the presence of the drugs that were located. However, in the police interview the defendant made admissions concerning the possession charges and the supply charges, which had been the subject of surveillance. He also admitted that he had engaged in dealing in cannabis, ecstasy and speed and volunteered that he had done so over a ten year period. He gave various details of his dealings, including some detail as to the quantity of drugs in which he dealt and the prices he charged, estimating he had earned “close to a million bucks”. He also made admissions that the property seized by police on 13 August 2004 had been purchased with money earned from selling drugs. [5] The defendant was arrested again on 31 May 2005 after he was observed to enter a property at Bonogin. When approached by police he told them that he “was looking for somewhere to rest”. Police found a quantity of gammahydoxybutric acid (GHB or fantasy) in his bum bag and the sum of $3,300 on his person. He was charged with possession of a dangerous drug, GHB, entering a property with intent to commit an indictable offence and possession of property ($3,300) suspected of being the proceeds of an offence. The defendant later reported taking fantasy three hours before the alleged offences. Mental History [6] The defendant is 31 years of age. He has a history of drug abuse and a criminal history of drug offences dating back to 1995. He started using cannabis sporadically when he was 18, but became a heavy user after a motor vehicle accident in 1998. There was apparently a period of abstinence from November 2001 to March 2004, when he relapsed into using cannabis and also somewhat later cocaine. [7] The defendant underwent a psychiatric assessment with Dr Curtis on 15 March 2004 who found generalised anxiety disorder, dysthymic disorder and cannabis dependence, but no evidence of psychotic illness at that time. On 19 July 2004, he was seen by his general practitioner, Dr Whillans, who noted that the defendant was using cocaine and experiencing delusional thinking, and who diagnosed paranoid psychosis. He prescribed medication. When reviewed a week later the defendant was much improved, however by 9 August 2004 he had become non-compliant and was using cocaine. [8] After his arrest on 13 August 2004, the defendant was seen again by Dr Curtis on 20 August 2004 in the Arthur Gorrie Correctional Centre. He found the defendant to be floridly psychotic (believing himself to be the president of Australia and under threat from multiple pursuers) and to be suffering from paranoid schizophrenia. On 5 September 2004 he was admitted to the Palm Beach Currumbin Private Clinic with a diagnosis of “acute paranoid psychosis in partial remission” and remained an inpatient until his discharge on 13 September 2004. [9] The defendant was admitted to the Gold Coast Hospital Mental Health Service on 5 July 2005, where he was treated by Dr Albrecht and Dr Turner. On admission, the defendant presented with a range of grandiose and paranoid delusions, which in -- 3 of 9 -- 4 conjunction with his history and symptomatology resulted in a diagnosis of paranoid schizophrenia being made. He was subsequently released on bail on an involuntary treatment order (ITO) and treated through the Palm Beach Community Mental Health Centre. [10] The defendant was readmitted to hospital on 6 September 2006 following deterioration in his mental state, and subsequent behaviour in the community. He had been non-compliant, had been using illicit drugs and had been threatening violence. On 13 September 2006 the MHRT confirmed his ITO. [11] The defendant is currently in the intensive care area (ICA) of the acute inpatient unit of the Gold Coast Hospital, receiving neuroleptic and antipsychotic medication. The defendant continues to experience ongoing problems with drug abuse (cannabis), even in the ICA. He now has no leave and restricted visitors. [12] There is no doubt from the clinical evidence that the defendant suffers from a mental illness. There is a divergence in the diagnosis as between paranoid schizophrenia and schizo-affective disorder. His treating psychiatrist, Dr Albrecht initially diagnosed paranoid schizophrenia, but presently prefers a diagnosis of schizo-affective disorder, bipolar type. Others favoured a diagnosis of paranoid schizophrenia. Nothing turns on that difference of opinion. The more difficult question is pinpointing the time of likely onset of the illness and its severity at any particular point in time. Dispute of facts [13] The defendant disputes the June 2004 supply charges and the charges of trafficking, and the associated possession of property charge of 13 August 2004, which concerns property allegedly obtained from the proceeds of dealing in drugs. As regards the remainder of the 13 August 2004 offences (possession of drugs and instructions), the defendant does not dispute the facts. Nor does he dispute the facts concerning the 31 May 2005 offences with which he is charged. [14] As to the disputed offences, I am satisfied that there is a reasonable doubt as to the commission of the alleged offences and the Court makes no finding as to unsoundness of mind in relation to these offences. The evidence concerning the trafficking and the August 2004 possession of property charges essentially arises out of admissions made during the police interview and issues as to the admissibility and reliability of those admissions are raised that ought to be permitted to be challenged in criminal proceedings. Whilst the supply charges are additionally supported by evidence other than the admissions I also consider that at this stage a reasonable doubt also arises in respect of those charges. The 13 August 2004 charges [15] There is a divergence in the evidence of the experts who have provided clinical opinions, as to whether the defendant suffered from unsoundness of mind as at 13 August 2004. Dr Curtis was inclined to consider that he did. Drs Turner and Fama although also initially of that view, withdrew their support for that position, after being provided with additional material on the police brief, including transcripts of the execution of the search warrants, record of interview and telephone intercepts. After considering the additional material, they limited their conclusion that the -- 4 of 9 -- 5 defendant was of unsound mind to the 31 May 2005 offences. Dr Albrecht was also inclined to the same conclusion as to the alleged 2004 offences as Drs Turner and Fama. Drs Coyle, Morris and Curtis [16] Drs Morris and Coyle raised concerns as to whether the transcripts could be considered reliable, given their views that the defendant was at the time likely to have been under the influence of alcohol and drugs and to have been suffering from a schizophrenic condition. [17] After listening to the audio tape of the interview, Dr Coyle considered that there was evidence that the defendant was suffering from suspicious mood and paranoid delusion, hyperbole and grandiose ideas. Dr Coyle considered that, given the defendant’s low intelligence and high level of susceptibility, the defendant’s confession to the police had the hallmarks of a false confession. He also found the defendant to be given to endorsing psychotic symptoms that were unlikely to be true, but did not consider the defendant to be an outright malingerer. [18] Dr Morris raised a number of concerns about the record of interview and its reliability, including that the defendant believed the police were “playing a game with him and therefore he told them things that he thought they wanted to hear”; that there were statements in the interview indicative of confusion and possible abnormality of mind and statements involving grandiosity as to the defendant’s admissions as to drug dealing to impress the police. However, Dr Morris was careful to point out in his oral evidence that he was unable to say that as at 13 August 2004 the defendant’s mental condition, which he referred to as being “in the area of psychosis” was such as to deprive him of a relevant capacity. Dr Morris also was of the view that no weight should be placed on the communications between the defendant and Detective Tuffley in May 2005, involving accusations against Detective Tuffley and claims that the defendant would avoid the charges by relying on a mental health defence. Dr Morris observed that the communications occurred in the weeks leading up to 31 May 2005 offences (in relation to which there was support for an unsoundness of mind defence) and considered that the defendant’s communications reflected a relapse in the defendant’s psychotic condition. [19] In his report of 9 June 2005 Dr Curtis favoured the view that the degree of the defendant’s psychosis at the time of all the alleged offences deprived him of the relevant capacities and excluded intoxication as a contributory factor. In his oral evidence Dr Curtis moved to the view that in relation to the 13 August 2004 offences the defendant was suffering from an acute phase of paranoid schizophrenia so as to deprive him of his capacity of control, but could not rule out intoxication as contributing to that deprivation. He also indicated that he had not had the opportunity to examine the defendant at length with respect to each of the alleged offences in the way that others such as Dr Turner had been able to. He preferred to state his opinion on the basis of “a broad brush” view that, at some point in mid- 2004 the defendant developed a very bad psychotic illness that continued to worsen. Dr Curtis also raised concerns as to whether the transcript of the record of interview reflected the audio tape of the interview, which he had had the opportunity to hear. However, he accepted that there was no psychotic symptomology apparent even from a hearing of the audio tape. -- 5 of 9 -- 6 Dr Albrecht [20] Dr Albrecht was unable in his various reports to reach any definite conclusion in relation to unsoundness in regards to the 13 August 2004 charges. In his 6 October 2005 report, Dr Albrecht was only prepared to go as far as saying, in respect of the offences prior to 2005, that on the balance of probability the defendant “has either regularly or intermittently shown signs of mental disorder (and increasingly from April 2004), and that at times he might have been psychotic to such an extent that he might have been deprived of one or more, or all 3 capacities”. Nor could he reach a firm conclusion as to the role of intoxication in respect of the charges. [21] In his oral evidence, Dr Albrecht moved to the view that the defendant was not of unsound mind as at 13 August 2004. However he emphasised the difficulty in coming to a conclusion as to unsoundness, because of the changing or uncertain timeframes reported by the defendant regarding his drug abuse. Dr Albrecht observed that there was an element of malingering in the way the defendant had spoken at various times to various people, and that at times the defendant said what would help his mental health defence. He did not express the reservations that Drs Curtis, Coyle and Morris had in relation to the record of interview. In his view, while the defendant may have been under the influence of substances at the time of the interview, and while there was some indication of grandiosity, there was no clear evidence of psychotic symptomology. Dr Turner [22] Dr Turner saw the defendant on 14 October 2005. She accepted that the defendant was suffering from a mental illness dating back to March 2004, but was unable to support the view that there was at the time of the 13 August 2004 offences, a deprivation of capacity. She withdrew the comment made in her initial report that the defendant may have been unfit for interview on 13 August 2005, stating it was “speculation”. She observed instead that the transcript of the record of interview did not reveal any evidence of mental illness at the time of the interview and that the defendant’s descriptions of his finances therein appeared well reasoned and not grandiose. [23] She considered that there was no evidence in the transcripts of any acute psychotic illness. It was her view that, while the defendant had told her that he thought the police were a “joke” and not real or a threat to him, the transcripts did not support that. On the contrary, she considered that the defendant’s attempts during the execution of the search warrant to distance himself from the drugs found on the premises and to explain away the drugs in his pants, indicated that he was well aware of the significance and consequences of the police attending. She also observed that during the police interview the defendant was specific about distancing himself from dealing in cocaine and heroin. [24] She considered that it was likely that as at 13 August 2004 the defendant was suffering from some sort of psychotic disorder, but she was of the view that it was not of such severity that the defendant was deprived of any of the relevant capacities. -- 6 of 9 -- 7 Dr Fama [25] Dr Fama saw the defendant on 16 May 2006. Dr Fama considered the history suggesting an active psychosis as at 13 August 2004 to be weak. He observed that although the defendant was seen to be psychotic by Dr Curtis a week after the alleged offences on 13 August 2004, the police interview conducted on that date did not support the presence of a psychosis at a level that might reasonably be indicative of mental disease. [26] The defendant had informed Dr Fama that any statements that he had made to police in relation to the 2004 charges “were the product of his disordered and elated mental state”. Having considered in detail the transcript of the police interview, Dr Fama stated that there was no evidence of implausible claims and no evidence of appreciable mental disorder, although he accepted that there were some grandiose statements and that the defendant may have been mistaken in his recollection of events. Dr Fama accepted for example, that the defendant’s account of the period over which he had trafficked in drugs might have been exaggerated, but he did not consider that the account in the interview was irrational or indicative of such grandiosity as to indicate a psychosis. Nor did he think that the defendant’s free admissions pointed to a psychosis depriving him of a relevant capacity. Dr Fama accepted that the defendant’s conduct in contacting Detective Tuffley was provocative, but did not consider it to be delusional. However, in the end result on reviewing the evidence, Dr Fama was not satisfied that the defendant suffered from a psychosis as at 13 August 2004 at such a level as to amount to a mental illness nor that there was deprivation as a result of a mental illness. Conclusion [27] The only expert who was able to offer support for a defence of unsoundness was Dr Curtis, but having regard to the evidence of the other experts and the advice of the assisting psychiatrists, I am unable to be satisfied to the requisite standard that the defendant was at the time of the alleged offending on 13 August 2004, suffering from a mental illness of such severity as to result in a relevant deprivation of capacity. Although there was some difference of opinion as to the use to be made of the record of interview, the preponderance of opinion was that it offered an insight into the defendant’s mental condition at the relevant time and revealed no psychosis which would amount to unsoundness of mind. Accordingly, I find that the defendant was not of unsound mind at the time of the 13 August 2004 offences. The 31 May 2005 charges Dr Albrecht [28] As to the charge of entering a dwelling with intent on 31 May 2005, Dr Albrecht considered that the defendant was suffering from a mental illness at that time. He was of the view that the defendant’s delusional belief system deprived him of the relevant capacities. He based this view on the defendant’s report of having experienced a wide range of psychotic symptoms, in particular, auditory and visual hallucinations. The defendant followed certain “signs” on the road to the dwelling of another person which he thought was his new home. He also believed that he was on reality TV. He gave similar reports to Drs Turner and Fama. He entered the -- 7 of 9 -- 8 dwelling and remained there until approached by police who were alerted to the defendant’s presence by a neighbour. [29] While acknowledging that it was difficult to ascertain the degree to which the defendant’s conduct was influenced by intoxication, Dr Albrecht concluded that the defendant’s underlying delusions were of such severity as to deprive him of at least the capacity to know he ought not do the acts and the capacity to control his acts. In his reports, Dr Albrecht was also inclined to support a defence as to the other two charges of 31 May 2005. However, in oral evidence he no longer supported a defence in respect of those offences. Dr Turner [30] Dr Turner supported a finding of unsoundness of mind in relation to all the charges of 31 May 2005. She observed that the acute care team had been contacted on 27 May 2005 because of concerns about the defendant’s mental condition and that he was observed to be persistently psychotic on 5 July 2005 by Dr Curtis. Although accepting that intoxication was an issue, given the reported use of GHB and its likely effect of exacerbating his symptoms, it was Dr Turner’s clinical opinion that at the relevant time the defendant’s psychosis was of such severity that it was alone sufficient to deprive him of at least one capacity. Dr Fama [31] Dr Fama continued to support a finding of unsoundness in relation to all of the offences of 31 May 2005. He considered the defendant was most probably suffering from an active psychosis “owing to the rather bizarre circumstances from which those particular criminal charges have arisen” and the confirmation by Dr Curtis of a psychotic state six days later. He considered that the defendant was, as a result of his psychotic symptoms, deprived of the capacity to know that he ought not do the acts. In oral evidence Dr Fama accepted that the issues of whether the deprivation resulted from a psychosis or intoxication were intertwined and that there was a probability that intoxication contributed to the defendant’s deprivation. However, Dr Fama considered that on the balance of probabilities the deprivation would have occurred even without intoxication, given the continuing symptomology observed by Dr Curtis on 5 June 2005. Conclusion [32] I am satisfied to the requisite standard that the defendant was suffering from a mental illness as at 31 May 2005 so that he was deprived of at least one relevant capacity. While the issue of intoxication is not without difficulty and the evidence suggests that intoxication cannot be excluded as a contributing factor, the weight of the evidence is that the defendant’s psychosis of such severity as to alone have resulted in relevant deprivation of capacity. In those circumstances, I am satisfied that the defendant was of unsound mind in respect of all of the 31 May 2005 offences. Findings and Orders [33] As to the alleged offences of trafficking in dangerous drugs between 1 January 1994 and 14 August 2004, supply of dangerous drugs in June 2004 and possession of -- 8 of 9 -- 9 property suspected of being the proceeds of a crime on 13 August 2004, I am satisfied that there is a reasonable doubt as to the commission of the alleged offences and make no finding as to soundness of mind. As to the charges of possession of dangerous drugs and instructions on 13 August 2004, I find that the defendant was not of unsound mind. [34] I find that the defendant is unfit for trial in respect of those matters, given the unanimous clinical opinion before the Court. I find that the nature of the unfitness is not permanent. A forensic order is required to be made in those circumstances. I make a forensic order detaining the defendant to the Gold Coast District and Area Network Authorised Mental Health Service. I approve limited community treatment at the discretion of the authorised psychiatrist in accordance with the submission by the Director of Mental Health, which is supported by the assisting psychiatrists. [35] As to the charges for offences allegedly committed on 31 May 2005, I find that the defendant was of unsound mind. It is also appropriate in respect of those matters to make a forensic order and approve limited community treatment in the same terms as above. -- 9 of 9 --