DJS, Re [2003] QMHC 15

MENTAL HEALTH COURT CITATION: Re DJS [2003] QMHC 015 PARTIES: REFERENCE BY THE DIRECTOR OF PUBLIC PROSECUTIONS IN RESPECT OF DJS PROCEEDING NO: 180 of 2002 DELIVERED ON: 5 August 2003 DELIVERED AT: Brisbane HEARING DATES: 1 April, 3, 4 July 2003 JUDGE: Wilson J ASSISTING PSYCHIATRISTS: Dr J M Lawrence Dr J F Wood FINDINGS AND ORDERS: 1. At the time of the alleged offence, the defendant was not suffering from unsoundness of mind as described in schedule 2 of the Mental Health Act 2000 (Qld); 2. At the time of the alleged offence, the defendant was suffering from 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 his father – whether patient suffered from unsoundness of mind MENTAL HEALTH – DECLARATION OR FINDING OF MENTAL ILLNESS OR INCAPACITY – whether defendant of diminished responsibility at the time of the alleged offence – where defendant had history of schizophrenia and depression – where defendant had suffered verbal abuse from victim for years – whether defendant suffered from “abnormality of mind” – where combination of mental illness and psycho-social factors – where defendant claimed to have been intoxicated with prescription drug at time of alleged offence – where collateral evidence inconsistent with intoxication – where defendant found not intoxicated at the time of the alleged offence – where abnormality of mind -- 1 of 5 -- 2 substantially impaired the defendant’s capacity to control his actions Mental Health Act 2000 (Qld), schedule 2 Criminal Code 1899 (Qld), s 304A, s 27 R v Whitworth [1989] 1 Qd R 437, referred to R v Rolph [1962] Qd R 262, cited R v Byrne [1960] 2 QB 396, cited Re B [2002] QMHT 001, referred to COUNSEL: J Tate for the Director of Mental Health M Copley (on 1 April 2003) and S Bain (on 3, 4 July 2003) for the Director of Public Prosecutions C Eberhardt for the defendant SOLICITORS: The Crown Solicitor for the Director of Mental Health Director of Public Prosecutions Nyst Lawyers for the defendant [1] WILSON J: The defendant has been charged with the murder of his father on 26 November 2001. The matter of his mental condition in relation to the alleged offence has been referred to this Court by the Director of Public Prosecutions. [2] The defendant was born on 10 February 1967. He has a history of paranoid schizophrenia and depression, and has been under the care of Dr Edwin Young, consultant psychiatrist, since about 1990. Prior to the homicide of his father, he was being treated with a long acting injectable antipsychotic (Depot Fluanxol 100 mg per two weeks), Artane 2 mg three times a day for tremors caused by the Fluanxol, Valium 5 mg three times a day for anxiety and Serepax 30 mg one at night for insomnia. He has been on a disability support pension for about 11 years. [3] The defendant’s father was an Hungarian immigrant and his mother is Australian. He was their only child. His father drank heavily and tormented his mother and him with verbal taunts and abuse. At the age of 19 the defendant left home and went to live in a flat by himself, but he became isolated, lonely and depressed, and abused alcohol. Then he moved in with his grandmother, and lived with her for about 14 years. His mother lived there, too, on and off from about 1993, and together they nursed the grandmother through her final illness. He and his mother continued living in the grandmother’s house for about a year after she died. Then in mid 2000 the defendant’s father retired from his job and could not afford to maintain two homes. A house was bought where the defendant could have his own bedroom, lounge and bathroom downstairs (although not a separate kitchen), and he and his mother moved in with his father. [4] The defendant’s father continued to abuse alcohol, and to abuse him and his mother verbally. There was no physical violence. The defendant was fearful for his mother and himself, and for his pets. Although he had talked about killing his father a year or so before the homicide, there is no evidence that the homicide was planned or premeditated. -- 2 of 5 -- 3 [5] On 26 November 2001 the defendant’s father took his mother to an acupuncture appointment which was at 9.45 am. As they were leaving home to keep the appointment, the defendant’s mother saw the defendant: he was not looking well, and he told her that he had tried to suffocate himself by putting a plastic bag over his head. On returning from the appointment later in the morning his mother saw a yellow bed sheet tied over a beam in the garage; there was a chair under the sheet. She found the defendant in his room, sitting on a lounge. His left forearm was bleeding from cuts. She tried several times to contact his psychiatrist, Dr Young. Sometime around 2.00 pm she heard the defendant’s father say, “Why couldn’t you go and jump off the Gateway Bridge? Why didn’t you cut your neck instead of your arm? I’m going to get the axe and cut you up.” Then she heard a scuffle. She went downstairs and found the defendant hitting his father over the face with an iron pipe. The father fell to the ground, and the defendant hit him again. In all she saw the defendant hit his father five or six times. In due course police and ambulance officers arrived on the scene. They found the defendant calm. His father was dead when the ambulance officers arrived. [6] One of the side effects of the anti-psychotic medication the defendant was taking is Parkinsonian-like symptoms. Artane is a medication used to reduce this side effect. The defendant was prescribed one x 2 mg tablet three times per day. When he was interviewed by police he claimed to have taken far in excess of the prescribed amount: his accounts varied, but went as high as 200 tablets. He said that Artane tablets “space you away”. It was not clear when during the day he claimed to have taken these tablets - whether at regular intervals, or whether it was before or after the killing. A blood test performed at 9.30 pm revealed the presence of Artane, but at a level quite inconsistent with the large quantities claimed by the defendant to have been ingested during the day. [7] Upon the hearing of the reference the issue of Artane intoxication was explored in depth and ultimately excluded. Dr Peter Pillans, a pharmacologist, told the Court that although Artane is a comparatively old drug, very little is known about its therapeutic ranges, toxic levels and pharmacokinetics. Artane overdose usually produces euphoria which can progress to agitation, confusion and hallucinations. But the defendant was suicidal and depressed before the homicide, and even after it, he remained calm. Symptoms of intoxication are a dry mouth, dilated pupils, blurred vision, rapid pulse, hot dry flushed skin and urinary retention. Ambulance officers attended at about 3.30 pm. From their records the only one of these symptoms present in the defendant was a slightly elevated pulse. His Glasgow coma scale reading was 14 (out of a maximum of 15). He was taken to the Princess Alexandra Hospital, arriving at about 4.00 pm, and at about 5.00 pm he was seen by a psychiatric registrar who found him calm, conscious and alert to time and place, although complaining of feeling “spaced out”. [8] In summary, despite the defendant’s claims, there is no objective evidence that he was intoxicated with Artane at the time of the homicide. Similarly, there is no objective evidence that he was intoxicated with alcohol - and I note that he denied this on the day of the alleged offence. [9] The Court must determine whether the defendant was of unsound mind at the time of the homicide, and if he was not, whether he was of diminished responsibility. I record that, having heard the submissions of counsel, I am persuaded that, in the -- 3 of 5 -- 4 circumstances of the case, neither s 268 nor s 269 of the Mental Health Act 2000 (Qld) poses an impediment to the Court’s making a decision on the reference. [10] The defendant was clearly suffering from a mental illness, namely paranoid schizophrenia. There is no evidence that he was psychotic, but he did have the pervasive negative symptoms of that illness and volitional disturbance. There is no evidence that he was deprived of any of the capacities in s 27 of the Criminal Code 1899 (Qld). See the definition of “unsound mind” in schedule 2 of the Mental Health Act 2000. Accordingly I am satisfied that he was not of unsound mind at the relevant time. [11] In schedule 2 of the Mental Health Act 2000 “diminished responsibility” is defined as - “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.” [12] “Abnormality of mind” in s 304A may be a wider concept than “mental disease or natural mental infirmity” in s 27; it is an exceptional state beyond the limits marked out by the great variety of ordinary people in the community: see R v Rolph [1962] Qd R 262 at 271, 288. In R v Byrne [1960] 2 QB 396 at 403 Parker LCJ said – “‘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 -- 4 of 5 -- 5 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 Re B [2002] QMHT 001 at [38] – [40] per Chesterman J. [13] In the opinions of the two psychiatrists who examined him at the request of the Court, Dr Jill Reddan and Dr Frank Varghese, the defendant’s capacity to control his actions was substantially impaired at the time of the homicide. Both considered his schizophrenia to be a major factor in that impairment: Dr Reddan thought it should be seen in combination with his dysfunctional family background (the combination having significantly narrowed his ability to choose from courses of action in a reasonably sensible manner) and the circumstances in which he found himself at the time (his increasing distress, depressed mood and feelings of despair, his father’s abuse, etc), while Dr Varghese thought it should be seen in combination with his emotional turmoil at the time. [14] In R v Whitworth [1989] 1 Qd R 437 the Court of Criminal Appeal recognised that a person may be of diminished responsibility as the result of a combination of brain dysfunction caused by illness or physical trauma and psycho-social factors. The formulations of Drs Reddan and Varghese, although not precisely the same, both fit that description. I am satisfied that at the time of the homicide the defendant was in a state of abnormality of mind within the meaning of s 304A of the Criminal Code 1899, and that the abnormality was one arising from one or more of the causes set out in the section. Further, I am satisfied that it was that abnormality of mind which impaired his capacity of control substantially. [15] I find that when the alleged offence was committed the defendant was not suffering from unsoundness of mind as described in schedule 2 of the Mental Health Act 2000, but that he was suffering from diminished responsibility. [16] The defendant is fit for trial. [17] I order that proceedings against the defendant for manslaughter be continued according to law. [18] The defendant is presently on bail which was granted by the Supreme Court on 25 March 2002. The order includes conditions that he report to police three times per week and that he attend upon his treating psychiatrist Dr Edwin Young twice weekly. The Assisting Psychiatrists drew attention to the results of a urinary drug screen ordered by Dr Reddan when she examined the defendant in December 2000, which showed the presence of opiates and benzodiazepines, and expressed concern about ongoing substance abuse. Counsel for the defendant undertook to notify Dr Young’s of these concerns. At the conclusion of the hearing I declined to vary the bail conditions, but indicated that I would hear further submissions on the point when I handed down my reserved decision. I now invite such submissions. -- 5 of 5 --