CWB Re [2003] QMHC 12

MENTAL HEALTH COURT CITATION: CWB, Re [2003] QMHC 012 PARTIES: REFERENCE BY THE DIRECTOR OF PUBLIC PROSECUTIONS IN RESPECT OF CWB PROCEEDING NO: 203 of 2002 DELIVERED ON: 17 December 2003 DELIVERED AT: Brisbane HEARING DATES: 28 March, 8, 25 July 2003 JUDGE: Wilson J ASSISTING PSYCHIATRISTS: Dr D A Grant Dr J F Wood FINDINGS AND ORDERS: 1. At the time of the alleged offence, the defendant was not of unsound mind as described in schedule 2 of the Mental Health Act 2000 (Qld); 2. At the time of the alleged offence, the defendant was of diminished responsibility as described in schedule 2 of the Mental Health Act 2000 (Qld); 3. The defendant is fit for trial; 4. Order that proceedings against the defendant for manslaughter be continued according to law. CATCHWORDS: MENTAL HEALTH – DECLARATION OR FINDING OF MENTAL ILLNESS OR INCAPACITY – where defendant charged with murder of terminally ill mother – where defendant had personality disorder – where defendant had pathological relationship with mother – where conflicting expert psychiatric evidence as to whether defendant suffered from depressive disorder and if so, the nature of the disorder – where conflicting expert psychiatric evidence as to whether defendant suffered from “mental disease or natural mental infirmity” – where conflicting expert psychiatric evidence as to whether defendant was deprived of any of the capacities in s 27 Criminal Code 1899 (Qld) – whether at the time of the alleged offence defendant was suffering from unsoundness of mind as described in schedule 2 of Mental Health Act 2000 (Qld) MENTAL HEALTH – DECLARATION OR FINDING OF MENTAL ILLNESS OR INCAPACITY – whether -- 1 of 12 -- 2 defendant of diminished responsibility at the time of the alleged offence – where defendant had personality disorder – where conflicting expert psychiatric evidence as to whether defendant suffered from depressive disorder – whether defendant suffered from “abnormality of mind” – where conflicting expert psychiatric evidence as to whether defendant suffered from substantial impairment of any of the capacities in s 27 Criminal Code 1899 (Qld) – whether abnormality of mind substantially impaired defendant’s capacity to know that he ought not do the act Criminal Code 1899 (Qld) s 27, s 304A Mental Health Act 2000 (Qld) schedule 2 R v Ford [1972] QWN 5 Re GMB (2002) 130 A Crim R 187, referred to Re Hill, Mental Health Tribunal, 19 January 2001, Chesterman J, cited Re Lloyd [2001] QMHT 003, cited R v Porter (1933) 55 CLR 185, cited R v Rolph [1962] Qd R 262, cited Stapleton v The Queen (1952) 86 CLR 358, cited R v Whitworth [1989] 1 Qd R 437, applied COUNSEL: M Lehane for the Director of Public Prosecutions B Devereaux for the defendant J Tate (on 28 March 2003) and W Isdale (on 8, 25 July 2003) for the Director of Mental Health SOLICITORS: The Director of Public Prosecutions Legal Aid Queensland for the defendant The Crown Solicitor for the Director of Mental Health [1] WILSON J: CWB [“the defendant”] has been charged with the murder of his 77 year old mother [“A”] on 29 June 2001. The matter of his mental condition in relation to the alleged offence was referred to this Court by the Director of Public Prosecutions. [2] The defendant was born in New Zealand on 21 September 1961, the youngest of his parents’ three children. He attended school until the equivalent of year 10. His parents separated at about that time. His mother had been born and raised in Germany, and he accompanied her to Germany for six months. His sister and brother stayed with their father. On their return to New Zealand, there were court proceedings in relation to his parents’ divorce. He sided with his mother, and virtually lost contact with his father. The defendant worked variously at farming, landscape gardening and taxi driving, and at Sunday markets with his mother. His employment history was interrupted by travelling back and forth between Germany and New Zealand with his mother. He did whatever casual work was available. [3] In 1995 the defendant and A migrated to Australia to be closer to his sister [“B”] and her husband. For about six years before the homicide, the defendant and A -- 2 of 12 -- 3 lived in a caravan in a caravan park. B and her husband lived not far away. The defendant worked initially as a taxi driver, as well as at Sunday markets with A. [4] The relationship between the defendant and A was exceptionally close, to the point where it was described by two of the examining psychiatrists (Dr Peter Fama and Dr Frank Varghese) as pathological. From when the defendant was born the only time he spent away from her (apart from time at school and work) was in 1998 when he went on a 30 day trip around Australia with a family friend. He never had a girlfriend, and A did not form a relationship with any other man after her divorce. Although they had disagreements from time to time, the defendant never thought of leaving her. They were mutually dependent, and lived for each other. There is no suggestion of any improper sexual relationship between them. [5] In June 2000 the defendant’s mother became seriously ill. She was subsequently diagnosed with pancreatic cancer, a terminal condition. In October that year their general practitioner explained her condition and the prognosis to the defendant. He explained that pancreatic cancer often caused a lot of pain and stomach upset such as vomiting and diarrhoea, that she would require full-time care for activities for daily living and that she had months rather than years to live. The defendant became visibly upset and distressed, and undertook to care for her. [6] The defendant’s mother received chemotherapy at the Redcliffe Hospital. The defendant cared for her in the caravan, and was in receipt of a carer’s pension. He looked after her 24 hours a day, seven days a week, without respite. As time went on, she could not stand or walk, she was barely able to eat or drink, and she was incontinent. She was in constant discomfort, if not pain, and needed constant attention. Her abdomen swelled with fluid and had to be drained. Her weight dropped dramatically from 65 kg to 33 kg. She was losing her sight. She had almost no quality of life. During the final few months of his mother’s life the defendant slept very little, waking three or four times every night to change her sanitary pads and to turn her on her side in bed. As well, he performed all the activities of daily living for the two of them - shopping, cooking, cleaning, driving and paying bills. He worried he was not caring for his mother adequately, but never sought assistance or medical help or counselling for himself. [7] The defendant and his mother kept the true extent of her illness secret, even from the defendant’s sister. She pleaded with him not to inform anyone about her illness, and had him promise never to put her in a hospital or nursing home. She had been in the Palliative Care Unit of the Redcliffe Hospital for nine days, and had wanted to return home to the defendant’s care in the caravan. She refused domiciliary help such as the Blue Nurses. As her condition deteriorated, she discouraged his sister from visiting. [8] In June 2001, A’s chemotherapy was ceased. On 27 June 2001 the general practitioner visited A at the caravan for the last time. She was frail and lethargic, and had trouble raising her arms. Her abdomen was grossly swollen and she appeared to be in discomfort. Death was imminent. Both the defendant and his mother seemed emotionally distressed by her deterioration and her approaching death, and by the indignity of her plight. [9] Friday 29 June 2001 was, in the defendant’s own words, a “normal day”. He woke up, got A’s breakfast and made her comfortable in bed. She could hardly move her -- 3 of 12 -- 4 arms, and had trouble eating and drinking. The defendant went grocery shopping, and while he was out he bought a colour television for his mother to watch. When he arrived home, his mother was not feeling well. He gave her some water and sat by her. After a while, he gave her vitamins, unpacked the groceries, and made her lunch. She could not eat much of it; nor could she drink water, dribbling it out of her mouth. [10] After tea, at about 9.30 pm, the defendant and A talked about her rapidly declining health. He later recalled that “Something just went bang.” He told his mother that he loved her, and she said she loved him. Then he took a pillow, said “I’m sorry ... Forgive me,” and held it on her face. She called out his name three times, but was too weak to struggle. He held the pillow over her face until she stopped breathing. Then he took it from her face, said “I’m sorry,” and kissed her on the forehead. He tied a plastic bag over her head, and tied a pair of her panty hose tightly round her neck. Finally, he took the crucifix which hung over the doorway, laid it on his mother’s chest, and put a sheet and a doona over her body. [11] Post mortem examination revealed that at the time of her death A was suffering from peritonitis and severe pneumonia as well as pancreatic cancer. The pathologist said in his report – “It would appear from the history provided by police that the final event responsible for death was plastic bag asphyxia. However it would appear that ... the deceased was in the advanced stages of a terminal illness. ... The presence and extent of the cancer together with the severe bronchopneumonia and peritonitis indicate that death could have occurred at any time and may well have been imminent.” [12] Shortly after A’s death the defendant took a razor blade and slashed his wrists. The cuts were shallow and caused only minimal bleeding. He drank a bottle of whisky until he became unconscious. When he woke the next morning, he attempted to electrocute himself by standing under a running shower and plunging live electrical wires into the water. He succeeded only in causing a short in the fuse box. Then he put a vacuum cleaner hose, a Stanley knife and some duct tape in his car, and drove up the Bruce Highway towards the Glasshouse Mountains, intending to kill himself by carbon monoxide poisoning. Looking for a quiet place to do so, he did a U-turn, and lost control of his car. Police attended the scene, and he told them he was on a morning drive. He was taken to the Caboolture Hospital, but had not sustained any injuries. He took a taxi from the hospital to Fortitude Valley. He contemplated jumping off the Story Bridge, but could not bring himself to do it. He tried to slash his wrists again, using some broken glass he found, but it was too blunt. He spent the next couple of days “wondering ... why [he] did it’’ in a park under the Story Bridge at Kangaroo Point. [13] At about 4.00 pm on Monday 1 July 2001, the defendant called 000 from a public telephone at Kangaroo Point, and told the operator that he had killed his mother and would like to be collected by the police. When police arrived shortly afterwards, he walked up to their car and introduced himself. [14] The defendant was examined by three psychiatrists, all of whom gave written and oral evidence - Dr Peter Fama, Dr Frank Varghese and Dr Josephine Sundin. -- 4 of 12 -- 5 [15] The court must determine whether at the time he killed his mother the defendant was of unsound mind, and if not satisfied that he was, whether he was of diminished responsibility. Both concepts are defined in the schedule to the Mental Health Act 2000 by reference to the relevant provisions of the Criminal Code (s 27 and s 304A respectively). Both involve malfunctions of the mind affecting perception, judgement and self-control. “Unsoundness of mind” is such a state of “mental disease or natural mental infirmity” as to deprive a person of one or more of those capacities. A person is of “diminished responsibility” if he is “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 to substantially impair one or more of those capacities. Overview of the medical evidence [16] The three examining psychiatrists (Dr Peter Fama, Dr Frank Varghese and Dr Josephine Sundin) considered that the defendant had a personality disorder. Drs Fama and Sundin described it as “dependent” while Dr Varghese described it as “dependent and avoidant”. Dr Varghese thought he was also suffering from major depression of more than moderate intensity; alternatively, he thought he had an adjustment disorder with depressed mood. Dr Fama agreed with the latter alternative, describing it as a reactive depression (which I understood to be another name for the same condition). Neither suggested that the depression had psychotic features. Dr Sundin did not accept that the defendant had either major depression or an adjustment disorder, principally because she was not satisfied of a shift from his pre-existing mental state. [17] Dr Varghese considered that the totality and complexity of the defendant’s major depression, his personality disorder and his pathological relationship with his mother in the very unusual circumstances of her terminal cancer deprived him of the capacity to control his actions. He conceded that the case for total deprivation of capacity was marginal. There may also have been a deprivation of the capacity to know he ought not do the act, although the case for that deprivation was weaker. At least there was a substantial impairment of both capacities. Dr Fama considered that the dependent personality disorder and the reactive depression, in combination, produced a substantial impairment of the capacity to know he ought not do the act. Dr Sundin did not consider that there was a substantial impairment of any of the three capacities. [18] In order to understand the examining psychiatrists’ differing opinions, it is necessary to consider the evidence in some detail. Major depression [19] According to DSM-IV-TR (“Diagnostic and Statistical Manual of Mental Disorders: Text Revision”, 4th ed, American Psychiatric Association, Washington, 2000), a major depressive disorder is a clinical course characterised by one or more major depressive episodes without a history of manic, mixed or hypomanic episodes. There are five criteria for a major depressive episode (listed at page 356): -- 5 of 12 -- 6 “A. Five (or more) of the following symptoms have been present during the same 2-week period and represent a change from previous functioning; at least one of the symptoms is either (1) depressed mood or (2) loss of interest or pleasure. Note: Do not include symptoms that are clearly due to a general medical condition, or mood-incongruent delusions or hallucinations. (1) depressed mood most of the day, nearly every day, as indicated by either subjective report (e.g., feels sad or empty) or observation made by others (e.g., appears tearful). Note: In children and adolescents, can be irritable mood. (2) markedly diminished interest or pleasure in all, or almost all, activities most of the day, nearly every day (as indicated by either subjective account or observation made by others) (3) significant weight loss when not dieting or weight gain (e.g., a change of more than 5% of body weight in a month), or decrease or increase in appetite nearly every day. Note: In children, consider failure to make expected weight gains. (4) insomnia or hypersomnia nearly every day (5) psychomotor agitation or retardation nearly every day (observable by others, not merely subjective feelings of restlessness or being slowed down) (6) fatigue or loss of energy nearly every day (7) feelings of worthlessness or excessive or inappropriate guilt (which may be delusional) nearly every day (not merely self-reproach or guilt about being sick) (8) diminished ability to think or concentrate, or indecisiveness, nearly every day (either by subjective account or as observed by others) (9) recurrent thoughts of death (not just fear of dying), recurrent suicidal ideation without a specific plan, or a suicide attempt or a specific plan for committing suicide B. The symptoms do not meet criteria for a Mixed Episode (see p. 365). C. These symptoms cause clinically significant distress or impairment in social, occupational, or other important areas of functioning. D. The symptoms are not due to the direct physiological effects of a substance (e.g., a drug of abuse, a medication) or a general medical condition (e.g., hypothyroidism.). E. The symptoms are not better accounted for by Bereavement, i.e., after the loss of a loved one, the symptoms persist for -- 6 of 12 -- 7 longer than 2 months or are characterized by marked functional impairment, morbid preoccupation with worthlessness, suicidal ideation, psychotic symptoms, or psychomotor retardation.” I note the advice of the assisting psychiatrists that DSM-IV is a very useful guide in diagnostics, but that it should not be accorded “biblical” status. I note also that Dr Fama prefers another authoritative publication, ICD-10 (“The ICD-10 Classification of Mental and Behavioural Disorders: Clinical Descriptions and Diagnostic Guidelines”, World Health Organization, Switzerland, 1992). Adjustment disorder [20] An adjustment disorder is a psychological response to an identifiable stressor or stressors. According to DSM-IV, there are five diagnostic criteria for an adjustment disorder (listed at page 683): “A. The development of emotional or behavioural symptoms in response to an identifiable stressor(s) occurring within 3 months of the onset of the stressor(s). B. These symptoms or behaviours are clinically significant as evidenced by either of the following: (1) marked distress that is in excess of what would be expected from exposure to the stressor (2) significant impairment in social or occupational (academic) functioning C. The stress-related disturbance does not meet the criteria for another specific Axis I disorder and is not merely an exacerbation of a preexisting Axis I or Axis II disorder. D. The symptoms do not represent Bereavement. E. Once the stressor (or its consequences) has terminated, the symptoms do not persist for more than an additional 6 months.” Depression [21] In oral evidence Dr Varghese was taken through the diagnostic criteria for a major depressive episode. He considered that the defendant had at least seven of the symptoms in paragraph A (nos 1, 2, 3, 4, 6, 8 and 9), which marked a change from his previous functioning; for this he relied on the defendant’s report to him that he had last felt well in May. He considered paragraphs B, C, D and E were satisfied. That the defendant managed to carry on looking after his mother did not undermine the diagnosis; on the contrary, it was consistent with his observations in his daily practice in the palliative care area of families struggling with looking after relatives while depressed, sometimes quite profoundly so. While there was some anticipatory bereavement on the part of the defendant, the entire syndrome could not -- 7 of 12 -- 8 be accounted for in terms of anticipatory bereavement. This was a case of persistent low mood accompanied by biological changes, while in bereavement the principal issue is the production of affect and emotion in relation to the loss, and there is reactivity (that is a capacity, even for short periods of time, to feel good thoughts). [22] According to Dr Varghese, if the criteria for a major depressive episode were not met, those for an adjustment disorder were. The extent of his reaction to the stressor of his mother’s terminal illness was more than would be expected, the main difference being the development and presence of persistent symptoms of depression. [23] Dr Fama considered that the symptoms did not point to a major depression, but rather to a depression that was reactive to the stress and physical arduousness of caring for his terminally ill mother. Further, despite his depression, he was able to carry on with caring for his mother and attending to tasks of daily living, even buying a television set. As I have already observed, Dr Varghese strongly disagreed with the proposition that the defendant’s ability to carry on in the circumstances was inconsistent with the presence of major depression. [24] I heed the advice of the assisting psychiatrists that since this was not a case of true bereavement, but of anticipatory bereavement, caution needs to be exercised in considering the criteria in the DSM-IV for major depression and an adjustment disorder that the symptoms do not represent bereavement. They both advised me that it is significant that there was no element of rage or anger in the killing. They advised it would be very unusual for a personality disorder alone to produce an act like this without rage - which suggested the presence of another element such as depression. [25] I accept that the defendant was suffering from depression. Whether it was a case of major depression or of reactive depression seems ultimately to be a question of where he should be placed on a continuum. I am not satisfied on the balance of probabilities that it was more than a reactive depression. The cause of the depression was an inherent vulnerability to the stresses of caring for his terminally ill mother. Dr Fama expressly gave oral evidence to this effect, and I understood the tenor of Dr Varghese’s evidence to be similar. Deprivation of the capacity of control? [26] Dr Varghese explained his conclusion that the defendant was deprived of volitional control of his actions in this way: “ … he’s in a situation where his mother is extremely ill. He – she refuses to go into hospital. She is indicating to him, in some way he cannot actually fathom, that she wants to die and wants him to assist that and – in that he’s also unable to contemplate living without his mother and is planning – seems to be planning his own suicide. […] I think this man is in a very invidious situation. His mother … is dying of cancer, she is profoundly ill, she is refusing to go into -- 8 of 12 -- 9 hospital. He’s obviously distressed about it and I think he’s also depressed and there’s this enmeshed pathological relationship. In that situation, where he feels, by implication, his mother wants help in dying, I think … he’s unable to actually look at the totality of the situation, in a way that allows him a rational response and that’s where the capacity of control comes in. He has no choice in a sense.” When asked about the mechanism whereby depression might lead to a deprivation of the capacity of control he said – “I think it’s the sense of hopelessness, the sense of helplessness about a situation and the inability to see a positive outcome – inability to look at anything optimistically, a feeling that things are going to be like this forever. That – If that is intense enough, then that would limit one’s capacity to – and maybe even remove one’s capacity to make choices about a situation. Now, I doubt if that would happen if depression was there on its own, in the absence of psychotic symptoms. Certainly it would diminish capacity, but whether it would remove capacity, I would be doubtful.” As I understood his evidence, it was only if the defendant was suffering from major depression (in combination with other factors) that he would have been deprived of the capacity of control. [27] Dr Varghese described the dependent personality disorder as unusually severe in that the defendant’s own needs were subservient to his relationship with his mother. [28] According to Dr Varghese, the defendant had a feeling that his mother wanted him to kill her. It was a cognitive distortion short of a delusion. He conceded that this issue was central to a finding of deprivation, as opposed to substantial impairment, of the capacity of control. As I understood his evidence, it was also central to the argument that he was deprived of the capacity to know he ought not do the act. There is no evidence that the defendant’s mother asked him to hasten her death. Rather Dr Varghese relied on the defendant’s perception that that was her unspoken wish. There is no direct evidence from the defendant that he believed that was what she wanted. In written submissions the defendant’s counsel drew attention to the following evidence from which he submitted such a finding could be made: “(i) The relationship had elements of secrecy, noted by Dr Fama: no-one else in the family was to be told of the mother’s condition; she must not be cared for in hospital; there must be no domiciliary help. (ii) The defendant told Dr Fama, ‘It was her right to decide what she wanted’. (iii) The defendant told Dr Varghese several things, set out in his report at p3, including, ‘I could not understand why she wanted to go’; ‘her fight and courage waned’; ‘she would not take her tablets’. -- 9 of 12 -- 10 (iv) It was consistent with their relationship that he would feel impelled to act on what he perceived to be her wishes. See, for example, the description of the relationship in Dr Varghese’s report at p6. (v) Although Dr Sundin noted that at no time did his mother ask him to assist her with dying, she also noted he did not think of taking her to hospital and feared her reaction if he were to do so.” Counsel for the Director of Public Prosecutions submitted that the defendant’s actions in apologising to his mother and asking her forgiveness before putting the pillow over her head were inconsistent with his believing she wanted him to hasten her death. Further, he submitted, the defendant knew that his mother was a Roman Catholic, and so presumably someone who regarded suicide as wrong. In all the circumstances I am unpersuaded that the defendant believed his mother wanted him to kill her. That being an essential foundation for Dr Varghese’s opinion that he was deprived of one or more of the capacities, and neither of the other examining psychiatrists supporting a deprivation of capacity, I find that there was no deprivation of any of the capacities in s 27 of the Criminal Code. [29] Before leaving the issue of loss of the capacity of control, I should record another point made in Dr Varghese’s oral evidence - that the case for deprivation of the capacity of control would be stronger if it had been a case of murder/suicide, albeit with failed suicide attempts. Although the lives of the defendant and his mother were so closely intertwined that he had difficulty in contemplating life without her, there is insufficient evidence for me to conclude that he even contemplated suicide before he killed her. I accept Dr Fama’s conclusion that the attempts at suicide were reactive to the mother’s death, and I note Dr Sundin’s evidence that he denied thoughts of suicide before his mother’s death. [30] In the absence of a total deprivation of one or more of the capacities in s 27 of the Criminal Code, the defendant was not of unsound mind as described in the Mental Health Act 2000 at the time he killed his mother. This conclusion must be reached even if he was in “a state of mental disease or natural mental infirmity” within the meaning of s 27 of the Code. It is improbable that his mental condition could pass that test in the absence of major depression, but it is not necessary for me to consider that aspect further. Substantial impairment of capacity? [31] The capacity to know that one ought not do an act is the capacity to reason with a moderate degree of composure as to the moral rightness or wrongness of the act: R v Porter (1933) 55 CLR 182 at 189-190; Stapleton v R (1952) 86 CLR 358 at 367; Re Lloyd (Mental Health Tribunal, 13 March 2001, Chesterman J) at paras [30] – [33]. It is not coterminous with knowing that the act is unlawful, and it is not uncommon for someone to lack the capacity for moral reasoning at the same time as knowing an act is unlawful. [32] In Dr Varghese’s opinion, if there was not a deprivation of capacity, the capacities of control and to know that he ought not do the act were clearly substantially -- 10 of 12 -- 11 impaired. This was so even if he did not have a perception that his mother wanted him to hasten her death, and even if it was not a case of murder/suicide. [33] Dr Fama thought that the defendant’s capacity to know he ought not do the act was substantially impaired. He said that when the defendant realised his mother was not going to recover, on the evening of her killing, he suffered “an emotional crisis of some kind, the sudden eventual realisation that his efforts in caring for his mother were of no avail and that she was going to die anyway.” During this crisis, despite its brevity, he was substantially impaired in his capacity to know that what he was doing was wrong. He probably knew that what he was doing was against the law, but he nevertheless “believed that it was the right thing to do and a necessity for him to do it.” He had control over his actions: as he acknowledged to police, he could have stopped when he placed the pillow over his mother’s head, but he chose not to do so. [34] Dr Sundin did not accept that any of the capacities were substantially impaired. Her report and her oral evidence concentrated on her opinion that the defendant suffered only a personality disorder, which she said is not a disorder of reason and could not by itself amount to an “abnormality of mind”. Be that as it may, Dr Sundin said that in her interview with the defendant he clearly indicated that he knew what he was doing was wrong and that he had indicated in police interviews that he knew he could stop. [35] I prefer the evidence of Dr Varghese and Dr Fama that there was a substantial impairment of the capacity to know he ought not do the act. The focus must be on his mental state at the time of the killing. Considerable caution needs to be exercised in relying on the record of interview he gave police several days after his mother’s death. By then he had had time to reflect on the gravity of what he had done, and in retrospect to form some appreciation of its moral as well as legal wrongfulness. I am persuaded on the balance of probabilities that “something just went bang” - that is, that there was a sudden and substantial reduction in his reasoning capacity. Abnormality of mind? [36] Unless the substantial impairment of his capacity to know he ought not do the act was caused by “an abnormality of mind (whether arising from a condition of arrested or retarded development of mind or inherent causes or induced by disease or injury)” within s 304A of the Criminal Code, the defendant was not of diminished responsibility at the time of the offence. [37] The expression “abnormality of mind” may be wider than “mental disease or natural mental infirmity” in s 27. As Parker LCJ said in Byrne [1960] 2 QB 396 at 403 - “‘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 willpower to control physical acts in accordance with that rational judgment.” -- 11 of 12 -- 12 It goes beyond the limits marked out by the variety of intelligence and disposition in the community generally (R v Rolph [1962] Qd R 262 at 288) and it excludes extremes of common emotions such as anger or jealousy (R v Whitworth [1989] 1 Qd R 437 at 446. See the thorough and helpful review of the authorities by Chesterman J in Re GMB (2002) 130 A Crim R 187 at 197 - 198. [38] On the evidence of Dr Varghese and Dr Fama, the substantial impairment of capacity resulted from a combination of factors. According to Dr Varghese it was the defendant’s depressive disorder (whether major depression or an adjustment disorder), his personality disorder and his pathological relationship with his mother in the context of her terminal illness. According to Dr Fama it was the substantial personality disorder aggravated by reactive depression (an adjustment disorder). [39] Major depression, if present, is clearly a disturbance in mental functioning - that is a mental illness, which satisfies the legal definitions of “disease of the mind” in s 27 and “abnormality of mind” in s 304A of the Criminal Code. Reactive depression has been held to be a state of “abnormality of mind” arising from a prescribed cause: see R v Ford [1972] QWN 5. See also Re Hill, Mental Health Tribunal, 19 January 2001, unreported, Chesterman J. [40] I am satisfied on the balance of probabilities that in this case the reactive depression arose from an inherent vulnerability, and that in combination with the personality disorder it brought about a substantial impairment of the defendant’s capacity to know that he ought not do the act. See R v Whitworth. That is sufficient to satisfy the requirements of s 304A of the Criminal Code, and so reduce the charge from murder to manslaughter. [41] Therefore, I find that at the time of the alleged offence – (a) the defendant was not of unsound mind as described in schedule 2 to the Mental Health Act 2000; but (b) he was of diminished responsibility. [42] I find that the defendant is fit for trial. [43] I order that proceedings against the defendant for manslaughter be continued according to law. -- 12 of 12 --