CJS, Re [2003] QMHC 13

MENTAL HEALTH COURT CITATION: Re CJS [2003] QMHC 013 PARTIES: REFERENCE BY THE DIRECTOR OF MENTAL HEALTH IN RESPECT OF CJS PROCEEDING NO: 0190/02 DELIVERED ON: 7 May 2003 DELIVERED AT: Brisbane HEARING DATE: 3 April 2003 JUDGE: Wilson J ASSISTING PSYCHIATRISTS: Dr J M Lawrence Dr J F Wood FINDINGS AND ORDERS 1. Finding that at the time of the alleged assault on a police officer the defendant was not suffering from unsoundness of mind as described in schedule 2 of the Mental Health Act (Qld) 2000; 2. Finding that at the time of the alleged murder the defendant was not suffering from unsoundness of mind as described in schedule 2 of the Mental Health Act 2000 (Qld); 3. Finding that at the time of the alleged murder the defendant was not of diminished responsibility as described in schedule 2 of the Mental Health Act 2000 (Qld); 4. Finding that the defendant is fit for trial. 5. Order that the proceedings against the defendant for both offences be continued according to law. CATCHWORDS: MENTAL HEALTH – DECLARATION OR FINDING OF MENTAL ILLNESS OR INCAPACITY – where defendant charged with assaulting a police officer and with murder – 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 offence – whether defendant suffered from “abnormality of mind” – where defendant suffered from an acquired brain injury and a psychotic illness – whether abnormality of mind substantially impaired the defendant’s capacity to understand what he was -- 1 of 5 -- 2 doing, to control his actions or to know that what he was doing was wrong – where there is insufficient evidence to support a finding that the psychosis was operant at the relevant time – where the defendant was intoxicated at the time of the alleged offence – where the level of impairment of the capacity of control was significantly increased by the defendant’s intoxication R v Neilsen [1990] 2 Qd R 578, applied R v Biess [1967] Qd R 470, cited R v Lloyd [1967] 1 QB 175, cited R v Rolph [1962] Qd R 262, applied R v Byrne [1960] 2 QB 396, considered R vB, Mental Health Tribunal, 20 March 2002, unreported, cited Criminal Code 1899 (Qld), s 27, s 304A Mental Health Act 2000 (Qld), Schedule 2 COUNSEL: J Henry for the defendant J Tate for the Director of Mental Health M Lehane for the Director of Public Prosecutions SOLICITORS: Edna Cuthbertson & Co for the defendant Crown Solicitor for the Director of Mental Health Director of Public Prosecutions [1] WILSON J: The defendant has been charged with assaulting a police officer on 12 July 2001 and with murder on 27 October 2001. By reference filed on 29 May 2002 the Director of Mental Health referred the matter of his mental condition relating to the alleged offences to the Mental Health Court. The reference was heard on 3 April 2003. Circumstances of the Offences [2] At about 3.00 pm on 12 July 2001 police attended the Railway Hotel in Cairns in response to information that there was a male person who refused to leave the premises. A hotel employee pointed out the defendant, who was standing in the public bar. Police spoke to the defendant, and noticed that his breath smelt strongly of alcohol and that his speech was slurred. They asked him to accompany them to a shelter. He walked out of the hotel to the police van, and stood behind the van. The defendant then punched one of the officers in the right ear causing pain and ringing in his left ear. The defendant then climbed into the rear of the van, calling the officer “a fucking old cunt” as he did. [3] On 27 October 2001 the defendant and his cousin were living in the defendant’s home in Cairns. They had both been drinking. They had an argument during which the defendant took a large kitchen knife from a kitchen drawer and stabbed his cousin twice in the lower abdomen and chest. His cousin fell to the floor. The defendant made a call to 000 for an ambulance. He then cleaned the knife and put it back in the drawer. He tried to mop up the blood, and washed the towels he had used in the washing machine. About four hours after the stabbing, the defendant took part in a recorded police interview. -- 2 of 5 -- 3 The defendant’s antecedents [4] The defendant was born on 5 September 1976. His father was a Torres Strait Islander and his mother a Caucasian. The defendant began drinking alcohol when he was about 13. After leaving home at the age of 16, he began drinking heavily and developed an alcohol dependence. On 26 October 1996 he was injured as a pedestrian in a motor vehicle accident, sustaining a head injury with frontal lobe damage. [5] The frontal lobe damage resulted in cognitive deficits, some personality change and some disinhibition. In addition, the defendant developed a psychotic illness (similar to schizophrenia) secondary to the head injury. From mid 1998 he got himself into trouble with the law, committing a series of violent offences. He spent time in the Lotus Glen Correctional Centre and was at one stage transferred to the John Oxley Memorial Hospital. Assault on police officer on 12 July 2001 [6] There is no evidence that the defendant was suffering from unsoundness of mind as described in schedule 2 of the Mental Health Act 2000 (Qld) at the time of the alleged offence. Alleged murder on 27 October 2001 [7] The defendant is not a reliable historian, and he has given different accounts to various people of what happened. However, I am satisfied that any doubt that he killed his cousin exists only as a consequence of his mental condition. Accordingly the Court is not precluded by s 268 from making a decision on the reference in relation to the charge of murder. [8] I am satisfied that the defendant was not suffering from unsoundness of mind at the time of the alleged homicide. The issue for the Court is whether he was of diminished responsibility. [9] In schedule 2 of the Mental Health Act “diminished responsibility” is defined as - “the state of abnormality described in the Criminal Code, section 304A”. Section 304A of the Criminal Code 1899 (Qld) 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 -- 3 of 5 -- 4 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. (2) 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.” [10] While “abnormality of mind” in s 304A may be a wider concept than “mental disease or natural mental infirmity” in s 27, it is nevertheless 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 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.” See also Re B, Mental Health Tribunal, 20 March 2002, unreported at [38] – [40] per Chesterman J. [11] I am satisfied that at the time of the alleged homicide the defendant’s mind was abnormal in this sense, and that the abnormality was induced by his acquired brain injury and his psychotic illness, ie that it was “induced by disease or injury” within s 304A. (The defendant’s self-induced intoxication was not an abnormality of mind: R v Nielsen [1990] 2 Qd R 578 at 582.) [12] Did the abnormality of mind substantially impair the defendant’s capacity to understand what he was doing, to control his actions or to know that what he was doing was wrong? While the evidence supports a substantial impairment of the capacity of control, the source of that impairment is very much a live issue. The question is whether, absent the intoxication, that capacity would have been substantially impaired. It is a question of fact. [13] The defendant had a psychotic illness (for which he was hospitalised both before and after the homicide), but there is insufficient evidence to support a finding that the psychosis was operant at the relevant time. [14] One of the consequences of the frontal lobe damage was a degree of disinhibition of aggressive behaviour. The Court heard evidence from Dr Prabal Kar who treated the defendant for about a year when he was a patient of the John Oxley Hospital and within the Prison Mental Health Service, as well as from Dr Peter Yellowlees and Dr Peter Fama. They were all of the opinion that there would have been some impairment of the capacity of control in the absence of intoxication, but that the -- 4 of 5 -- 5 level of impairment was greatly increased by the intoxication. In the course of their oral evidence, the doctors were asked to express the levels of impairment in terms of percentages - an exercise which was of only limited value since “substantial” is 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. Doctors Kar and Yellowlees expressed the level of impairment but for the intoxication at 20 - 30 % and 30 - 40% respectively, and at about 70% with the intoxication. Dr Fama was not prepared to use percentages. Dr Kar described the intoxication as the major factor, overshadowing everything else; Dr Yellowlees described it as the major single factor; and Dr Fama said that while there would have been some impairment of control without the intoxication, without it the alleged homicide would not have taken place. [15] I am satisfied that the level of impairment, absent the intoxication, was not substantial. Accordingly I find that at the time of the alleged homicide the defendant was not of diminished responsibility. Fitness for trial [16] The defendant is currently fit for trial. Findings and order [17] I find - (i) that when the alleged assault on a police officer was committed on 12 July 2001 the defendant was not suffering from unsoundness of mind as described in schedule 2 of the Mental Health Act 2000; (ii) that when the alleged murder was committed on 27 October 2001 the defendant was not suffering from unsoundness of mind and was not of diminished responsibility as described in schedule 2 of the Mental Health Act 2000; (iii) that the defendant is fit for trial. [18] I order that the proceedings against the defendant for both offences be continued according to law. -- 5 of 5 --