DKM, Re [2002] QMHC 8

MENTAL HEALTH COURT CITATION: Re DKM [2002] QMHC 008 PARTIES: REFERENCES BY THE DEFENDANT’S LEGAL REPRESENTATIVES IN RESPECT OF DKM PROCEEDING NO: 0034/2002 DELIVERED ON: 13 November 2002 DELIVERED AT: Brisbane HEARING DATE: 09 September 2002 JUDGE: Wilson J ASSISTING PSYCHIATRISTS Dr D A Grant Dr J F Wood FINDINGS AND ORDERS: 1. That when the alleged offences were committed, the defendant was not suffering from unsoundness of mind as described in Schedule 2 of the Mental Health Act 2000; 2. That the defendant is fit for trial; 3. Order that the proceedings against the defendant for wilful damage to property, obstructing police and assaulting police be continued according to law. CATCHWORDS: MENTAL HEALTH – DECLARATION OR FINDING OF MENTAL ILLNESS OR INCAPACITY – where defendant charged with wilful damage to property, obstructing police and assaulting police – whether defendant suffered from unsoundness of mind at the time of the offence – where defendant suffered major depression – whether depression itself was severe enough to deprive the patient of any relevant capacity – whether the combination of depression and voluntary alcohol intoxication caused the loss of the capacity of control Criminal Code (Qld), s 27 Mental Health Act 2000 (Qld), Schedule 2 COUNSEL: S Hamlyn-Harris for the defendant J Tate for the Director of Mental Health M Lehane 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] WILSON J: DKM (“the defendant”) has been charged with wilful damage to property, obstructing police and assaulting police on 18 April 2000. On 15 October 2001 her then legal representative referred the matter of her mental condition in relation to the indictable -- 1 of 4 -- 2 offence to the Mental Health Tribunal. The matter of her mental condition in relation to the simple offences was referred to the Mental Health Court by Legal Aid Queensland on 29 May 2002. [2] The wilful damage charge relates to her burning her husband’s clothing and smashing the windows of his motor vehicle. The other charges relate to her conduct towards one of the police officers investigating the incident. [3] The defendant was born on 28 October 1970. She married in 1992, and had four children. The marriage was a very unhappy one, marked by domestic violence and two periods of separation. She drank alcohol regularly. The night before the incident, she found out that her husband had been having an affair with her best friend. She confronted him about it, and a huge row erupted, in which her husband was violent towards her. Police attended the scene. After police left, her husband tipped two litres of milk over her head, punched her and then left the house. The next morning her husband returned, removed the children and assaulted her. He came back alone, and began removing belongings from the house. Police arrived again. She began to consume alcohol. She went to sleep, and when she awoke, she found that her husband had removed furniture and other items such as the computer. In the afternoon she lit a fire with her husband’s clothes. A sofa was also put on the fire: she told police that she did this, although later she could not remember setting the sofa alight. She put the fire out herself, using a garden hose. She smashed the windows of the motor vehicle with a spade. Police were called when her husband discovered the damage. The defendant became agitated when police spoke to her; she became abusive shouting. “You police, you men are all the same.” One of the officers noted the smell of liquor on her breath, slurred speech, bloodshot eyes and that she was unsteady on her feet. She pushed the officer with both of her hands into his chest, forcing him off balance. Subsequently, she could not remember doing so, but she conceded the reported facts. [4] After her arrest and release from the watchhouse, she went home. The next day she was found hiding in a cupboard in her bedroom. She cut her wrists, feeling she wanted to die, and wrote a farewell note to her children. A friend took her to the local mental health clinic, and she was subsequently admitted to the Prince Charles Hospital Mental Health Unit for about four weeks. [5] On admission the defendant was exhausted, anxious and tearful. She had a large number of bruises on her body, particularly her right thigh, right arm, left arm and left armpit. She said she had been drinking heavily, that she felt hopeless and in a black hole, and that she wanted to get away from life because she could not cope. She described disturbed sleep, reduced energy, poor motivation and poor concentration. She had been eating poorly and drinking about two bottles of wine per night after seeing the children to bed. Her mood appeared to be depressed and her affect restricted to the low range though mood congruent. There was no evidence of formal thought disorder, although her thought content consisted of depressive and self-deprecatory ruminations along with thoughts of hopelessness and worthlessness and ongoing suicidal ideation. There was no evidence of abnormal perception and cognitively she was orientated to time, person and place. She had reasonable insight but her judgment appeared to be secondary to her suicidal ideation. [6] She was treated with anti-depressant and tranquillising medication and placed on an alcohol withdrawal scale. She improved slowly and steadily, although she underwent a setback when her husband visited unexpectedly. He was reluctant to allow her access to the children, and threatened court proceedings to prevent her having access. Her mood improved following negotiations on her behalf which resulted in her having some access. On her discharge she stayed temporarily with her mother until she found other accommodation. -- 2 of 4 -- 3 [7] This Court must determine whether the defendant was “of unsound mind” at the time of the alleged offences. In the Dictionary in Schedule 2 to the Mental Health Act the following appears – “unsound mind” means the state of mental disease or natural mental infirmity described in the Criminal Code, section 27, but does not include a state of mind resulting, to any extent, from intentional intoxication or stupefaction alone or in combination with some other agent at or about the time of the alleged offence. Section 27 of the Criminal Code provides – “27 Insanity (1) A person is not criminally responsible for an act or omission if at the time of doing the act or making the omission the person is in such a state of mental disease or natural mental infirmity as to deprive the person of capacity to understand what the person is doing, or of capacity to control the person’s actions, or of capacity to know that the person ought not to do the act or make the omission. (2) A person whose mind, at the time of the person’s doing or omitting to do an act, is affected by delusions on some specific matter or matters, but who is not otherwise entitled to the benefit of subsection (1), is criminally responsible for the act or omission to the same extent as if the real state of things had been such as the person was induced by the delusions to believe to exist.” [8] The defendant had previously suffered from depression: there is evidence of postnatal depression and two other depressive episodes. She was being treated by her general practitioner with antidepressant medication. She was subjected to a number of stressors - four children under nine, a violent husband, her own drinking, the revelation of her husband’s affair with her best friend, her husband’s removal of the children. I find that she was voluntarily intoxicated with alcohol at the time of the incident. [9] The psychiatrists who gave evidence (Dr Jill Reddan, Dr Peter Fama and Dr Frank Varghese) all ultimately concurred that the defendant was suffering from a mental illness, namely major depression. They differed in their assessment of its severity and its effect on the three capacities, and on the significance of voluntary intoxication with alcohol. [10] In Dr Fama’s view, the depression itself was of such a severity and nature as to deprive her of the capacity to know she ought not to do the act. He relied on its continuation in hospital in the absence of alcohol. He conceded that it was a marginal case. [11] Both Dr Reddan and Dr Varghese considered that the only capacity of which she was deprived was that of control, and that voluntary intoxication was a contributing cause of that deprivation. [12] None of the psychiatrists considered that the depressive illness was of such a degree as to cause psychotic symptoms. I accept the advice of the assisting psychiatrists that that is a relevant factor in determining the severity of the depression. Having regard to that and to the other adverse events affecting her at the time, I prefer the opinions of Dr Reddan and Dr Varghese to that of Dr Fama. I find that the loss of the capacity of control resulted from a combination of depression and voluntary intoxication with alcohol. There was no more than impairment of the other capacities. [13] Accordingly I find that at the time of the alleged offences, the defendant was not suffering from unsoundness of mind within the meaning of the Mental Health Act 2000. I find that -- 3 of 4 -- 4 she is fit for trial. I order that the proceedings against her for the offences be continued according to law. -- 4 of 4 --