Alagic, Re [2005] QMHC 35

MENTAL HEALTH COURT CITATION: Re Ismet Mohammed Alagic [2005] QMHC 035 PARTIES: REFERENCE BY THE DEFENDANT'S LEGAL REPRESENTATIVE IN RESPECT OF ISMET MOHAMMED ALAGIC PROCEEDING NO: 0164 of 2004 DELIVERED ON: 30 May 2005 DELIVERED AT: Brisbane HEARING DATE: 30 May 2005 JUDGE: ASSISTING PSYCHIATRISTS: Holmes J Dr J F Wood Dr J M Lawrence FINDINGS AND ORDER: 1. The defendant was not of unsound mind as described in the Mental Health Act 2000 (Qld), schedule 2 at the time of the alleged offence. 2. The defendant was not of diminished responsibility as described in the Mental Health Act 2000 (Qld), schedule 2 at the time of the alleged offence. 3. The defendant is fit for trial. 4. The proceeding for the alleged offence is to be continued according to law. CATCHWORDS: MENTAL HEALTH – DECLARATION OR FINDING OF MENTAL ILLNESS OR INCAPACITY – where defendant charged with murder - where evidence that the defendant was intoxicated - where examining psychiatrists disagreed as to whether the defendant was suffering from schizophrenia at the time of the alleged offence - whether the defendant had psychotic symptoms at the time of the alleged offence so as to deprive him of the capacity to understand what he was doing, or the capacity of control, or the capacity to know that he ought not do the act pursuant to the Criminal Code, s 27 - whether the defendant’s behaviour was attributable to intoxication - whether the defendant was fit for trial Criminal Code (Qld), s 27, 304A Mental Health Act 2000 (Qld), schedule 2 COUNSEL: Mr D Shepherd for the defendant Mr J Tate for the Director of Mental Health Mr P Rutledge for the Director of Public Prosecutions SOLICITORS: Legal Aid Queensland for the defendant The Crown Solicitor for the Director of Mental Health The Director of Public Prosecutions [1] HOLMES J: Mr Alagic faces a charge of murder, of Mr Kay, allegedly committed -- 1 of 3 -- 2 on 25 August 2003. The circumstances of the killing of Mr Kay were these: The two were both occupants of units in what seems to have been a hostel style accommodation. There was an altercation between the two of them that followed Mr Alagic’s having abused the deceased and his girlfriend. In that original altercation, which was a fist fight, Mr Kay seems to have got the better of Mr Alagic. Mr Alagic pleaded to be let up and was allowed to get up. He then went and got a knife, came back, and, it is alleged, stabbed Mr Kay. He came out of the room and said, "What have I done?" He ran from the building and threw the knife on the roof of an adjoining building. Mr Kay died from nine stab wounds to the upper torso and cranium. [2] Mr Alagic was found the next day at the St Vincent de Paul Hostel in South Brisbane, around midday, in blood-stained clothes. When police officers approached him he made the statement, "I fucked up. I'm fucked." At another point he asked another police officer how bad Mr Kay was. He said, "Did I fucking kill him?" [3] In a record of interview after his apprehension Mr Alagic spoke of having heard voices. He said, "I'm hearing voices flat out." He said of these voices: "He comes in my head. I could do with a kick in the head right now." [4] There is a good deal of evidence of alcohol consumption by Mr Alagic on the day in question. A Mr Johnson was drinking with him on that day. The two of them were seen by a police officer at the Spring Hill Market Shopping Complex. At that stage, Mr Alagic is described as unsteady on his feet and smelling of alcohol. Mr Johnson says that he had met Mr Alagic drinking on a previous occasion. On the day in question he had seen him at about midday. They went to the city. They bought a six-pack of VB, drank three beers each and then went into another hotel where they were drinking beer, and took some away with them. They remained together until about 9.00 p.m. Mr Johnson made the comment that Mr Alagic seemed more affected by the alcohol than he. Then it seems when Mr Alagic went back to the units where he resided, he continued to drink with another person, a Mr Breeze, who described him as effectively "talking shit" and says that he was pretty drunk. Ms McGrady, who was the girlfriend of the deceased, describes Mr Alagic as being "blind drunk", although it does seem that she was not in their company for very long prior to the killing. [5] There are some features of the incident which suggest that Mr Alagic was to some extent, at least, in command of his faculties. He took some pains to throw the knife away which had been used in the assault on Mr Kay and his comments to the police the following day do suggest some degree of recognition and recollection of what he had done. [6] Of the three psychiatrists who gave evidence, Dr Fama considered that Mr Alagic was suffering from paranoid schizophrenia, but he was not able to form any conclusion about whether he was suffering from any active psychosis at the time of the killing. He, like Dr Reddan, noted that Mr Alagic claimed to have been amnesic for the events but also claimed some psychotic symptoms. Both of those psychiatrists considered that inconsistent. [7] Essentially, Dr Fama said, in light of Mr Alagic’s claim to him of amnesia for the events, he could not reach any conclusion about the mental state that he was in, and he thought later recollections of hearing voices were unlikely to be reliable. [8] He considered Mr Alagic did have a mental illness as a result of his schizophrenia and probably was suffering from an abnormality of mind but alcohol was obviously a major factor. Mr Alagic had a history of aggressive behaviour associated with intoxication. In consequence, it was impossible to say that this killing was the result -- 2 of 3 -- 3 of a deprivation or impairment of capacity due to the schizophrenia or any possible psychosis. There was nothing really to discount the witnesses' accounts, which would be consistent with a drunken rage. [9] Dr Varghese also considered the diagnosis of schizophrenia correct. He thought Mr Alagic’s account of delusions was convincing and accepted that he was psychotic around the time of the events. The difficulty was to say whether that psychosis substantially impaired his capacity; since Dr Varghese accepted that the contribution of alcohol ruled out unsoundness of mind. In his report, Dr Varghese was a little more confident. He said that the abnormality of mind was likely to have impaired Mr Alagic’s capacities. But in evidence he said that it really was not possible to say with any confidence that the psychosis had substantially impaired Mr Alagic’s capacities, because alcohol was a factor. [10] Dr Reddan did not think there was enough evidence to make a clear diagnosis of schizophrenia. She regarded such evidence as there was as unconvincing. She did not think that there was evidence of deprivation of the necessary capacities nor of substantial impairment in any event. All doctors agree that Mr Alagic is fit for trial. [11] The weight of the evidence, then, is really against any finding that there was either unsoundness or diminished responsibility. Rather, it points to alcohol playing a very significant part in this incident such as to rule out unsoundness and make it impossible to say that if there were any psychosis present, it caused impairment. I should say, though, that there are no convincing signs of psychosis in anything any of the witnesses say as to the events surrounding the killing. [12] For those reasons, I am not satisfied that Mr Alagic was suffering from unsoundness of mind at the time Mr Kay was killed, within the meaning of that expression as used in the Mental Health Act 2000, nor that he was suffering from diminished responsibility within the meaning of section 304A of the Criminal Code. I am satisfied that he is fit for trial. The proceedings will continue according to law. -- 3 of 3 --