AJA Re [2004] QMHC 24

MENTAL HEALTH COURT CITATION: Re AJA [2004] QMHC 024 PARTIES: REFERENCE BY LEGAL REPRESENTATIVE IN RESPECT OF AJA PROCEEDING NO: 0076 of 2003 DELIVERED ON: 23 April 2004 DELIVERED AT: Brisbane HEARING DATES: 12 & 19 March 2004 JUDGE: Wilson J ASSISTING PSYCHIATRISTS: Dr J M Lawrence Dr J F Wood 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 any of the alleged offences; 2. In relation to the charge of murder, the defendant was not of diminished responsibility as described in schedule 2 of the Mental Health Act 2000 (Qld) at the time of the alleged offence; 3. The defendant is fit for trial; 4. The proceedings against the defendant for all of the alleged offences are to be continued according to law. CATCHWORDS: MENTAL HEALTH – DECLARATION OR FINDING OF MENTAL ILLNESS OR INCAPACITY –where the defendant had a pre-existing brain injury resulting in an organic personality disorder – whether personality disorder was an “abnormality of the mind”. MENTAL HEALTH – DECLARATION OR FINDING OF MENTAL ILLNESS OR INCAPACITY – where the defendant is charged with murder – whether defendant was of diminished responsibility at the time of the alleged offence – where the defendant’s brain injury caused impairment of his capacity to control his actions – whether impairment was “substantial”. MENTAL HEALTH – DECLARATION OR FINDING OF MENTAL ILLNESS OR INCAPACITY – where the defendant is charged with murder – whether defendant was of diminished responsibility at the time of the alleged offence – whether voluntary intoxication contributed to impairment of capacity to control – where defendant has a history of marijuana and alcohol abuse – where previous incidents of threatening and violent behaviour closely connected with voluntary intoxication – where -- 1 of 13 -- 2 defendant had consumed alcohol and marijuana prior to offences – whether impairment of capacity would have been “substantial”, but for voluntary intoxication. Mental Health Act 2000 (Qld), schedule 2 Criminal Code 1899 (Qld), s 304A, s 27 Re B [2002] QMHT 001, referred to R v Biess [1967] Qd R 470, followed R v Byrne [1960] 2 QB 396, applied R v Lloyd [1967] 1 QB 175, applied R v Nielsen [1990] 2 Qd R 578, followed R v Rolph [1962] Qd R 262, referred to COUNSEL: T Ryan (on 12 March 2004), B Farr (on 19 March 2004) for the defendant R Pointing for the Director of Public Prosecutions J Tate for the Director of Mental Health SOLICITORS: ATSILS for the defendant The Director of Public Prosecutions The Crown Solicitor for the Director of Mental Health [1] WILSON J: AJA (“the defendant”) has been charged with the following offences: (i) possession of a dangerous drug (marijuana) on 7 November 2001; (ii) murder on 18 November 2001; (iii) attempted murder, alternatively doing grievous bodily harm on 18 November 2001; (iv) burglary on 18 November 2001; (v) obstructing police on 18 November 2001. On 9 April 2003 his legal representative referred his mental condition in relation to the alleged offences to the Mental Health Court. The Issue [2] As the reference was conducted, there was no question as to the defendant’s soundness of mind in relation to any of the alleged offences. It was common ground that he was not of unsound mind at any of the relevant times. The issue for determination was whether he was of diminished responsibility in relation to the murder charge. His fitness for trial was conceded. Antecedents [3] The defendant is an Aboriginal man who was born on 11 June 1964. He was the eldest of nine or ten siblings. On his account his parents both drank to excess, and he grew up in an environment of discord and some violence. He complains of childhood sexual abuse by a male family friend. He had minimal formal education. Religion was important to him from childhood. He began drinking and using -- 2 of 13 -- 3 marijuana as a teenager. In adult life he became a weekend binge drinker. From about the age of 19 he was in a de facto relationship for two or three years. He says he loved his partner dearly and attempted to provide for her. However, she was unfaithful to him and he responded with violence towards her. There were two daughters of the relationship. [4] In February 1995 the defendant was struck over the head with a didgeridoo and rendered unconscious. He developed a left occipito-parietal extradural haematoma which required surgical evacuation. He was left with residual temporo-occipital cortical atrophy. The traumatic brain damage brought about an organic personality disorder comprising chiefly frontal lobe syndrome. [5] As the result of that injury he had varying degrees of cognitive difficulty. He had difficulty with his memory. Most significantly he was prone to irrational, intense and impulsive anger. He responded more quickly and intensely to things he considered threatening than would an uninjured person, and he perceived as threatening stimuli which an uninjured person would not perceive to be threatening. He had a reduced tolerance to alcohol. There was a corresponding diminution in his quality of life. The Offences [6] On 7 November 2001 the defendant was in the Bundaberg police watch-house in relation to another matter when police found a small quantity of marijuana in his wallet. [7] On 17 November 2001 the defendant was hitchhiking on the D’Aguilar Highway west of Woodford, en route to Goondiwindi to take up cotton picking. In the early afternoon Mrs Alois McDonald offered him and his dog a lift. She took him to her home (which was in the Woodford area) for lunch with her husband Leslie John McDonald and her. Some alcohol was consumed; the defendant may have consumed less than his hosts (who were alcoholics), and he smoked some marijuana which they gave him. By early evening Mr and Mrs McDonald had invited him to stay the night, and he had accepted the invitation. [8] The next day the defendant offered to buy another cask of wine. In the late morning he drove Mrs McDonald (in her motor vehicle) to a neighbour’s house, where they bought jam and chutney. They may have purchased wine on that trip, although it is not clear. (He has since claimed to have bought two or three casks of wine for them.) Later in the afternoon he took the vehicle to a local store where he bought cigarettes and two packets of chips. The storekeeper noted that he was slurring his words, and she thought he was drunk. According to Mrs McDonald, at some stage that afternoon the defendant returned to the house with a 4 litre cask of wine. They all seem to have sat round talking, listening to country music and drinking. The McDonalds may have encouraged the defendant to keep drinking. The defendant showed Mr McDonald “the holes in his head” (probably the burr holes from surgery associated with his head injury). Mr McDonald went to sleep, and the defendant and Mrs McDonald continued drinking. Mrs McDonald spoke of being an atheist, which -- 3 of 13 -- 4 upset the defendant. He responded to something she said by calling the McDonalds “Whities”, and became aggressive towards her. She later described the change in his behaviour in terms of a Jekyll and Hyde transformation. He yelled at her and punched her several times in the face, knocking her to the floor. Then he fetched an axe with which he threatened her. Mr McDonald intervened, possibly hitting the defendant on the back of the head. The defendant punched him to the ground and kicked him in the side and the back. Mrs McDonald went to the kitchen telephone and called 000 at 8.47 pm. She reported that the defendant was destroying the house. During the course of the call the defendant seized the telephone, asking the police to attend, saying that he would explain why he had done it, and conceding that he had been drinking. [9] Police arrived at the scene at about 9.15 pm. The defendant was standing at the back of the house dressed in shorts and a football jersey, calling to a dog. He was unsteady on his feet and had bloodshot eyes. At first he offered “to sort this out”, but then moved to seize an axe which was standing up against a woodpile log. One of the police officers pushed him aside and threw away the axe which was bloodstained and had a split handle. The kitchen and dining room areas were strewn with upturned furniture, crockery and empty stubbies. The telephone had been ripped from the socket. There was blood on the kitchen floor, and around the furniture and floor of the living room. [10] Mrs McDonald was sitting on a sofa in the living room, bleeding from head injuries. She was subsequently taken by ambulance to Caboolture Hospital, and then on to Royal Brisbane Hospital. She had lacerations to the face and scalp, and fractures of the lower jaw and the lateral wall of the left orbit. She also had a fractured bone in her right ankle and extensive bruising to her face and chest. [11] Mr McDonald was in a lounge chair, apparently unconscious. On further examination, he was dead. Post mortem examination revealed extensive injuries by blunt trauma to his head and trunk, and mixed sharp/blunt instrument wounds to the head, limbs and abdomen. There were large internal haemorrhages in the chest and abdomen, fractured ribs on the left side of the chest and tears to the left lung, the abdominal mesentery and the hilum of the spleen. He also had advanced cirrhosis of the liver. The cause of death was certified as blunt trauma probably delivered by kicks, punches and stomping. Other injuries were probably caused by an axe blade. [12] The defendant was taken to the Caboolture police station. In the police car he ranted incoherently with a mix of racial and sexual invective and abuse of police officers. By 12.30 am he was still rambling on. On arrival at the Caboolture police station, officers took his clothing and property. He talked about how he had come by his football jersey which he did not want taken from him. He talked about having a broken heart and his head injury. By 3.00 am on 19 November he was rational and alert enough to be interviewed at the Caboolture watch house. It was a muddled exchange. He ultimately declined legal representation (although earlier he had said he wanted a barrister from Brisbane). He said – “I’ve walked a hard road, I’ve walked a hard road by myself. People shit on me; they think I’m just a, I’m just an ordinary black fellow. -- 4 of 13 -- 5 Piss on him, he’s another black fellow, piss on him, piss on him. Lock him up, them people there I tell them my secrets. I sit down there, I tell them everything. I sing songs to them and everything. I get, I get in the car, take your car there, go and get food and then I go and get tins of food. If you don’t believe I’ll take you back to the publican where I was going. He seen me there with the……” He recalled the difficulties he had had in learning to read. He conceded he had been drinking before his arrest, and said he and the others had consumed two casks of wine. “The people said you and your dog fuck off. I said what did we do, what, what did we do.” He said he had no injuries, but a broken heart. He spoke resentfully of those who had hit him with the didgeridoo. At 7.26 am he was formally charged with the murder of Mr McDonald and the other offences. [13] About 8.30 pm that evening a police officer was fingerprinting the defendant. According to the officer, the defendant was sitting with his head hanging down looking at the ground, constantly shaking his head from side to side. The officer asked him what was wrong, to which he replied – “I just can’t believe what I have done … I’ve never hurt anyone in all my life, now look what’s happened…..I’ve done my best friend in… I’ve lost me best friend, and I suppose she has lost her husband… he was a good bloke… he didn’t know what was happening… it was the people who put me in a coma that I should have done this to, instead I have taken it all out on that poor fella.. he was innocent, it should never have happened. …. I’ve been trying so hard to stay out of trouble. People just rub you up the wrong way and you lose it…. She was running around in the nude and I was keeping my head down. I didn’t want to see that …. He wouldn’t stop her …. He didn’t know what was coming the poor bloke…. At least she got a bit of what he got… Women!...It was because of her that this…. I don’t know.. got out of …look what happened. …… I told everybody that I had a temper and unless I got help someone would get hurt and now look what has happened. I just can’t believe it, that poor fella…I’ve never laid a finger on anybody.” [14] The defendant has been in custody continuously since his arrest. He has been given antipsychotic and antidepressant medication, and has presumably not had access to alcohol or illicit drugs. His emotional instability and irritability have continued, but they have not been so extreme in the controlled environment. Diminished Responsibility [15] In schedule 2 of the Mental Health Act 2000 “diminished responsibility” is defined as – -- 5 of 13 -- 6 “the state of abnormality of mind described in the Criminal Code, section 304A”. Section 304A 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. (2) On a charge of murder, it shall be for the defence to prove that the person charged is by virtue of this section liable to be convicted of manslaughter only. (3) When 2 or more persons unlawfully kill another, the fact that 1 of such persons is by virtue of this section guilty of manslaughter only shall not affect the question whether the unlawful killing amounted to murder in the case of any other such person or persons.” [16] In R v Byrne [1960] 2 QB 396 at 403 Parker LCJ described an “abnormality of mind” in these terms – “‘Abnormality of mind’ ... means a state of mind so different from that of ordinary human beings that the reasonable man would term it abnormal. It appears to us to be wide enough to cover the mind’s activities in all its aspects, not only the perception of physical acts and matters and the ability to form a rational judgment as to whether an act is right or wrong, but also the ability to exercise will-power to control physical acts in accordance with that rational judgment.” See also R v Rolph [1962] Qd R 262 at 271, 288 and Re B [2002] QMHT 001, at paras 38 – 40 per Chesterman J. [17] In this case I am satisfied that the defendant’s organic personality disorder was an abnormality of mind in the relevant sense. Further I am satisfied that at the time of the homicide his capacity to control his actions was substantially impaired. But the reason for that substantial impairment is the critical question for determination. -- 6 of 13 -- 7 [18] I am satisfied that the defendant was intoxicated at the time. It has been authoritatively held that self-induced intoxication is not an abnormality of mind: R v Nielsen [1990] 2 Qd R 578 at 582. Thus, the question is whether his capacity for control would have been substantially impaired but for the intoxication. Previous Incidents [19] After his head injury and before the homicide of Mr McDonald the defendant presented to psychiatric units on a number of occasions. Sometimes he was admitted as an inpatient. It is necessary to examine the medical records in relation to at least some of these, as the examining psychiatrists were all taken to them in evidence. [20] On 15 January 2001, some 10 months before the homicide, the defendant presented to the Bundaberg Base Hospital seeking help. According to the notes of an occupational therapist, he reported having recently held a tomahawk to his mother, stabbing a wall twice and pushing a table that injured his mother. He said the attack had been precipitated by his mother’s not having bought any food. He said that he occasionally had such flights of rage: he did not know why; he “just clicks”. He was feeling remorseful. It is not possible to tell from the notes precisely when the attack on his mother had taken place. The notes contain no mention of alcohol or marijuana. However, I cannot be satisfied he was not adversely affected by either or both at the time of the attack on his mother having regard to the history which is to be found elsewhere in the medical records. His presentations were numerous, and so I shall simply refer to those which may cast light on his alcohol and marijuana use. [21] Just over a fortnight earlier (on 27 December 2000), he had presented at the Bundaberg Hospital Mental Health Service complaining of “thinking stupid” and being unable to control his temper. According to the clinical nurse’s notes, he had been living out in the bush, trying to keep to himself. He was – “still smoking MJ [marijuana]” and “drinking 1 flagon to 1 ½ flagon wine/port per day”. “When he gets into it he ‘completely loses the plot of living. That’s why I stop by myself down the river’.” He bemoaned the changes in his life since his head injury, and was resentful toward those who had inflicted the injury. [22] On 9 May 1995 the defendant presented to an occupational therapist at the Bundaberg Hospital for assessment for a rehabilitation programme. She recorded him saying he became very frustrated easily and “[got] wild at nothing”. He had -- 7 of 13 -- 8 been smoking an illicit drug (presumably marijuana) for 11 years, but wanted to quit for his daughters’ sake. [23] On 11 June 1996 he was admitted to the Toowoomba Hospital with suicidal and homicidal thoughts. The notes record – “A [alcohol] binges every 3 – 4 days. Illicit MHJ [marijuana] use but none for some weeks.” The opinions expressed included “alcohol and polysubstance abuse.” [24] On 4 November 1996 he attended the Bundaberg Mental Health Unit on referral from his general practitioner. He reported past drug and alcohol usage, and the staff made a note querying the amount he was currently using. [25] On 8 November 1996 he was transferred from the Cherbourg Hospital to the Psychiatric Unit at the Toowoomba Hospital. He was restless and agitated, expressing violent ideation. The referring doctor said he had started “routine detox” but the defendant had become more and more restless. He went on – “I feel his present state of psychosis has been triggered by alcohol and excessive ganga [marijuana] smoking prior to his admission here.” [26] On 27 January 1998 the defendant’s case manager telephoned him about an appointment with a medical practitioner. The defendant said he had been seeing a general practitioner, and been told to stop his depot medication, which he had done five weeks earlier. His father said that his life had changed for the positive, and that there had not been any aggressive outbursts lately. There is no mention of alcohol or marijuana in the notes. [27] On 12 May 1998 he was admitted to the Bundaberg Hospital after a voluntary presentation. He complained of feeling bad and having dangerous, violent thoughts. The notes record – “Alcohol – ‘got drunk the other night’ but hardly drinks anything during the week. Smokes packet 25/day 10 cones MJ/day Zero speed etc” [28] On 2 September 1998 he presented at the Bundaberg Integrated Mental Health Service saying he was depressed, and complaining of being used and mistreated by his family because of his memory problems. A psychologist who interviewed him recorded – “Friends all into alcohol & drugs while he wants to give up on MJ (already given up on alcohol)”. -- 8 of 13 -- 9 His medication was reinstated. There were a number of following entries relating to depression. On 14 October 1998 he did not attend for his medication. On 23 November 1998 he reported that he was “still drinking”. [29] On 18 December 1998 he presented at Bundaberg Hospital and requested admission to the mental health unit. He was in an agitated, angry and confused state. According to the Mental Health Service notes – “Has been fighting with family members and threatening to kill brothers. Stated today he has an urge to ‘finish his brother off’ as last night he chased his brothers with a knife. Turned up to father’s this morning with an axe but left after an argument. Ashley stated he wants admission so he doesn’t hurt someone. Can’t stay with family as too much risk of harming them.” The arguments had been about his daughter’s use of marijuana and his brother’s rude behaviour around her. He was angry and depressed that his daughters were in the care of others. He had not had depot medication since 7 October 1998. The hospital admission notes from that day recorded – “Smokes $50 a fortnight MJ. Drinks in binges 12 stubbies. Smokes 20/day.” [30] On 27 April 2000 he attended a clinic at the Bundaberg Integrated Mental Health Service and saw a social worker. The notes record that the defendant reported hearing strange things and noises in his head. He had tried to gain hold of his father’s gun, and had bullets. He reported feeling very angry and being frightened that he would harm others. He said he smoked a stick of marijuana each fortnight and drank a carton of beer a week. [31] The defendant had commenced to abuse alcohol and marijuana long before his head injury. It is clear from these records that he continued to do so after he sustained that injury. I accept the submission of the prosecutor that his presentations at mental health units complaining of suicidal or homicidal ideation all seem to have followed recent marijuana or alcohol abuse or both. Medical Opinions [32] The defendant was examined by three consultant psychiatrists (Dr William Kingswell, Dr Peter Fama and Dr Ian Colls), all of whom provided written reports and gave oral evidence. They all agreed with the diagnosis of organic personality disorder. They all agreed that there were three matters requiring consideration in relation to diminished responsibility – the organic brain injury, voluntary intoxication and the effect of certain events in triggering the violent outburst which resulted in the homicide, namely the argument about religion, possible racial slights, a possible dispute about the defendant’s being asked to contribute to the cost of food -- 9 of 13 -- 10 but not being thanked for it, and Mr McDonald’s action in hitting the defendant on the back of the head. However, they disagreed about the relative significance of these matters. [33] Dr Fama considered that his capacities to control his conduct and to know that the ought not do the act were very substantially impaired. However, he did not consider that this would have been the case in the absence of the intoxication. He said in oral evidence – “The abnormality of mind set the stage, as it were, but the actual disinhibited violent behaviour took place only as a result of intoxication.” He regarded the defendant’s ramblings to police as “drunken ravings in a man who was vulnerable to that sort of thing because of his brain damage”, and considered that the defendant had settled down overnight as the effects of the alcohol had worn off. When asked about the longitudinal history of aggression and violence, Dr Fama said - “But we don’t really know about the previous aggressive acts, whether alcohol was connected with them or not. There’s just nothing recorded about that. They were aggressive acts; there had probably been aggressive acts before the head injury. …….. So there’s a pattern of violent behaviour certainly since the head injury, but nothing on the scale of the present charges. And there are some instances, as I mentioned before, where his behaviour had stopped short of becoming violent. For example, threatening his mother with the axe… Threatening his brother with a knife… He didn’t actually harm them, as far as I know. He managed to stop that. Now, it seems that only with alcohol was he unable to stop it in the end.” As I have already said, I am prepared to accept that the previous incidents of aggression and violent ideation which had resulted in presentations to mental health units were all associated with recent alcohol and or marijuana abuse. It was fortuitous that no harm was inflicted in any of those incidents. When asked whether, in the absence of alcohol, the effect of the “triggers” on the defendant’s injured brain would have been substantially to impair his mental capacities, Dr Fama said - “I can’t really say that that would be so, no. Those were stimulants of a kind to this vulnerable man. They would not have been stimulants to a normal person, sufficient to rouse an ordinary person to extreme violence. They were, in [the defendant’s] case, sufficient to trigger it, but I believe the triggering would have occurred only on a -- 10 of 13 -- 11 background of alcohol intoxication as well. That’s the picture that I see. It’s really, however, a matter for conjecture.” When counsel for the defendant tried to draw a comparison with the defendant’s description that “something clicked” when he attacked his mother with the tomahawk, Dr Fama responded – “Well, I think – it is not a very specific description. To say that something clicked or something suddenly exploded or that sort of thing is a very common description of people who have been involved in violent crime. ……..It is a way of saying, ‘I don’t believe I really exerted proper personal control’ or ‘I wasn’t in full control personally. Something happened. The circumstances overwhelmed me and then this thing happens.’ It is not specific. It is a common description. Something clicked. …….It doesn’t really tell us very much. It doesn’t imply that there was necessarily a physical or emotional change of the kind that was unexpected or coming from outside the person’s inner experience.” [34] Dr Kingswell examined the defendant in the Woodford Correctional Centre on 14 August 2003 and again by videoconference on 23 October 2003. He had previously seen him twice in his role as visiting psychiatrist to the Prison Mental Health Service (31 July 1996 and 19 March 2002). He considered that even without the intoxication the defendant’s capacities to know that he ought not do the act and to control his actions would have been substantially impaired; the effect of the intoxication was to elevate the impairment to a deprivation. (Of course, there could be no question of unsoundness of mind within the meaning of the legislation, because voluntary intoxication contributed to the deprivation of capacity: Criminal Code s 27.) In speaking of the defendant’s rantings in the police car, he said that the intoxication on top of his brain injury had made him completely incoherent and irrational. Dr Kingswell’s opinion rested substantially on his understanding that on previous occasions when the defendant had been aggressive and had had violent ideations, he had not been adversely affected by alcohol (although he accepted that the defendant had an established history of alcohol and marijuana abuse). However, as I have already explained, I am not prepared to accept that that was so. In his oral evidence Dr Kingswell referred particularly to the incident in January 2001 when the defendant threatened his mother with a tomahawk. In his written report he referred to interviewing the defendant in prison on 31 July 19961, when he had been in prison for one week after being charged with assault occasioning bodily harm; then the defendant denied alcohol or cannabis use within the preceding three months. In both cases medical records made shortly before are consistent with ongoing use. When asked whether sudden changes in the defendant’s conduct, such as his description “it just clicks” in relation to the incident with his mother and Mrs McDonald’s description of the Jekyll and Hyde transformation were consistent with the way he saw the defendant’s abnormality of mind operating, Dr Kingswell said – 1 Dr Kingswell’s report refers to an interview with the defendant on 13 July 1996. However, since the offences for which the defendant was in custody were not committed until 21 July 1996, it appears that the interview in fact took place on 31 July. -- 11 of 13 -- 12 “Perhaps it is. I sort of think about it more as him just not having the cognitive equipment to think through the various alternatives, and choosing the impulsive and aggressive path.” [35] Dr Colls placed particular emphasis on the “triggers”. They were referrable to the head injury in two directions – the physical, organic injury and the psychological consequences of the injury. The defendant had experienced a significant diminution in his quality of life, and was particularly sensitive to any perceived mocking or criticism. He was much more vulnerable than an uninjured person, and to him otherwise minor stressors (such as the expression of religious beliefs contrary to his own) could be particularly pointed. Dr Colls considered that the impairment of the defendant’s capacity of control could easily have been as great if alcohol were taken out of the equation. He explained that he defendant had suffered damage to the part of the brain which allows someone to contain his emotions for a period and then act on them if he still thought that a reasonable thing to do, in contrast to acting instantaneously. He considered that there were explanations other than the lessening effects of alcohol for the defendant’s settling down over the hours after the homicide – such as “coming down” from an acutely agitated state, the lateness of the hour and a dawning realisation of what had happened. He summed up – “I think he is at risk of losing control as a result of his brain injury all the time. That risk is made worse by alcohol. It’s made better by medication. On that particular occasion it was made worse by alcohol. It is bad enough that on any occasion even without alcohol, at least by his report in the information, that he can lose – that he can manifest loss of control even without alcohol.” Dr Colls had earlier said - “I think that the abnormality of mind was a far more significant factor than the alcohol. I think what evidence I was able to get from the notes and for [the defenadant] was that the abnormality of mind occurred at times when he was not intoxicated; that it was just as serious at times when he was not intoxicated. On those other occasions could easily have resulted in very similar outcomes as this particular occasion but for various reasons it did not.” Dr Colls’ opinion that the defendant’s capacity of control would have been substantially impaired even in the absence of alcohol, like Dr Kingswell’s opinion, rests on an understanding that there had been previous incidents of violence and threatening behaviour in the absence of intoxication. I do not accept this interpretation of the medical records in relation to previous incidents, as I have already said. [36] In considering the differing opinions, I have been greatly assisted by the questions asked of the examining doctors by the assisting psychiatrists, and their clinical analysis of the medical records and evidence. These are, of course, recorded in the transcript. -- 12 of 13 -- 13 [37] I accept that the defendant’s brain injury resulted in an impairment in his capacity to control his actions, and that an aspect of that impairment was a heightened sensitivity and adverse response to stressors. Even in the controlled environment of a prison and with the benefit of medication, he remains irritable, impulsive and aggressive. Section 304A of the Criminal Code speaks of “such a state of abnormality of mind as substantially to impair” one of the three mental capacities. “Substantial” has been held to be an imprecise term, somewhere between trivial or minimal and total: R v Biess [1967] Qd R 470 at 475, 485; R v Lloyd [1967] 1 QB 175. It is a matter of judgment whether the level of impairment in the absence of alcohol was substantial. Given his history of alcohol and marijuana abuse, and the close temporal connexion between the use of one or both of those substances and previous incidents of threatening and violent behaviour, I am satisfied on the balance of probabilities that but for his voluntary intoxication on the night in question, his level of impairment would not have met the description “substantial”. [38] Accordingly, I find that the defendant was not of diminished responsibility. He is fit for trial. I order that the proceedings against him for all of the alleged offences be continued according to law. - -- 13 of 13 --