EJS, Re [2003] QMHC 16

MENTAL HEALTH COURT CITATION: Re EJS [2003] QMHC 016 PARTIES: REFERENCE BY THE DEFENDANT’S LEGAL REPRESENTATIVE IN RESPECT OF EJS PROCEEDING NO: 0005 of 2003 DELIVERED ON: 2 December 2003 (Formal Orders) 4 December 2003 (Reasons for Finding) DELIVERED AT: Brisbane HEARING DATES: 1 & 2 December 2003 JUDGE: Wilson J ASSISTING PSYCHIATRISTS: Dr J F Wood Dr D A Grant FINDINGS AND ORDERS: 1. Finding that the defendant was not of unsound mind as described in schedule 2 of the Mental Health Act 2000 (Qld) at the time of the alleged offence; 2. Finding that the defendant was not suffering from diminished responsibility at the time of the alleged offence; 3. Finding that the defendant is fit for trial; 4. Order that proceedings against the defendant be continued according to law. CATCHWORDS: MENTAL HEALTH – DECLARATION OR FINDING OF MENTAL ILLNESS OR INCAPACITY – where defendant charged with the murder of his wife – where the defendant was not of unsound mind at the time of the offence – where the issue before the court was the question of diminished capacity – where the defendant complained of being “depressed” prior to the offence – where the defendant has some degree of dysthymic disorder - whether the defendant had an abnormality of the mind – whether that abnormality led to a substantial impairment of the capacity to control his actions Criminal Code (Qld), s.304A Mental Health Act 2000 (Qld), Schedule 2 R v Biess [1967] QdR 470 considered R v Ford [1972] QWN 5 followed R v Rolfe [1962] QdR 262 applied R v Whitworth [1989] 1 QdR 437 considered -- 1 of 4 -- 2 COUNSEL: G McGuire for the defendant J Tate to the Director of Mental Health B Campbell for the Director of Public Prosecutions SOLICITORS: Ryan & Bosscher for the defendant The Crown Solicitor for the Director of Mental Health The Director of Public Prosecutions [1] WILSON J: EJS [“the defendant”] has been charged with the murder of his wife on 10 August 2001. [2] The matter of his mental condition in relation to the offence was referred to this Court by his legal representative. The Court was not asked to make a finding with respect to unsoundness of mind. The issue was that of diminished responsibility. [3] The defendant was born on 1 February 1957. He resided with his wife and three children at Eatons Hill. He was an electrician working for a firm which builds garbage trucks. He and his wife had been together since 1989. The marriage was a very unhappy one for various reasons and the unhappiness was manifest in different ways. [4] In 1999 he consulted a general practitioner complaining of being "depressed". The general practitioner prescribed Zoloft and recommended counselling. From late 2000 the defendant's wife was having an affair with someone she had met while doing work for her employer interstate. In April, May and July 2001 the defendant consulted general practitioners further, again complaining of being depressed and of marital problems. He had had an adverse reaction to the Zoloft medication. He was prescribed Stilnox (a sedative) and counselling was again recommended. [5] There was considerable tumult in the marriage, but in the week leading up to the killing things were comparatively calm. On the morning of 10 August 2001 the defendant's wife was supposed to be attending the pain clinic at the Wesley Hospital. He went off to work and commenced working on a truck. While at work he received a number of mobile phone calls from his wife. He took a couple of them and missed others. Those he took were abusive. She said she was going to a solicitor; that she was going to take half of everything. [6] Obviously upset, the defendant was advised by his supervisor to go home. He went home. There was a heated argument. When they were at the kitchen bench, she said something which caused him, in his words, to go ballistic. He pushed her off the chair, banged her head on the tiles and then strangled her with a dog lead. [7] Subsequently he called 000 and said he had killed his wife. He rang the cleaner and told her what he had done. He rang his mother and left a message as to what he had done. He told a neighbour that he had killed his wife. In due course police arrived on the scene. -- 2 of 4 -- 3 [8] Diminished responsibility is dealt with in section 304A of the Criminal Code. "304A 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." [9] So if indeed he was of diminished responsibility at the time of the killing, he will face a charge of manslaughter rather than murder. [10] The elements of diminished responsibility are (1) a state of abnormality of mind, (2) whether arising from a condition of arrested or retarded development of mind or inherent causes, or induced by disease or injury, (3) causing a substantial impairment of at least one of the three capacities, namely the capacity to understand what the person is doing, the capacity to control his or her actions and the capacity to know that he or she ought not do the act in question. [11] In this respect an abnormality of mind has been held to be a wider concept than a mental disease or mental infirmity in section 27 of the Criminal Code, but nevertheless to be an exceptional state beyond the limits marked out by the great variety of ordinary people in the community. See R v Rolfe [1962] QdR 262 at 271 and 288. [12] Extremes of common emotions such as anger or jealousy are not abnormalities of mind for this purpose. If there was a known abnormality arising from a prescribed cause, the Court may also consider interacting psychosocial factors in determining whether the abnormality was such as to lead to a substantial impairment. See R v Whitworth [1989] 1 QdR 437. [13] In this case the Court has the evidence of the general practitioners whom the defendant consulted before the incident; Dr Curtis, who has been his treating -- 3 of 4 -- 4 psychiatrist since the incident; and Drs Fama and Reddan who examined him pursuant to Court examination orders. [14] According to the general practitioners, he had symptoms of depression, but in general practice there is a tendency not to categorise the condition as a dysthymic disorder on the one hand or major depression on the other. Dr Maria Nandam agreed with a question put to her to the effect that the problems he was suffering were mainly family and social rather than medical, and she recommended counselling. The fact is that although he was in an extremely unhappy marriage he continued with his daily life, going to work, et cetera. I am unpersuaded that he was suffering from major depression. I accept that he had some degree of dysthymic disorder. [15] Drs Curtis, Fama and Reddan all identified personality difficulties. Dr Curtis and Dr Fama identified a dysthymic disorder and Dr Curtis and Dr Reddan an anxiety disorder. There was debate whether these conditions severally or in combination amounted to an abnormality of mind arising from a prescribed cause. [16] Ultimately, as I have said, I am prepared to accept that there was some degree of dysthymic disorder and that that was an abnormality of mind arising from a prescribed cause. See R v Ford [1972] QWN 5. Dr Curtis considered also that there may have been a brief period of dissociation. However, I accept the advice of the assisting psychiatrists that in the absence of evidence of an altered state of consciousness and subsequent amnesia for the events, dissociation could not be identified. [17] Counsel for the Director of Public Prosecutions submitted that this was simply a rage killing, the product of an emotional outburst. The defendant was emotionally very disturbed. There was a powerful mix of anger, jealousy, hurt and other emotion. As I have said, there was some abnormality of mind, so the issue becomes whether that abnormality of mind led to a substantial impairment of the capacity of control. [18] "Substantial" is an imprecise term, held to refer to somewhere between trivial and minimal on the one hand and total on the other. See R v Biess [1967] QdR 470 at 475, 485. [19] Having regard to my finding that the dysthymic disorder was at the lower end of the spectrum, having regard to the circumstances on the day - the phone calls, his going home, the heated argument, the explosion of emotion, having regard to his conduct after the event, I am not satisfied that the abnormality of mind produced a substantial impairment of any of the capacities. [20] Accordingly, I am not satisfied that at the time of the alleged offence he was suffering from diminished responsibility. On the evidence the defendant is fit for trial. I have already made the formal orders in this matter. -- 4 of 4 --