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- Unreported Judgment
MENTAL HEALTH COURT
In the matter of Emilie Jean McBryde  QMHC 11
23 October 2018
5 October 2018
Dr SJ Harden and
Dr ASB Davison
J Robson for the defendant
SJ Hamlyn-Harris for the Office of the Chief Psychiatrist
MT Whitbread for the Director of Public Prosecutions (Qld)
Legal Aid Queensland for the defendant
Crown Law for the Office of the Chief Psychiatrist
Director of Public Prosecutions (Qld)
- This is a reference in relation to Emilie Jean McBryde born 2 July 1981. She is charged with three offences from 13 March 2016: enter dwelling and commit indictable offence, imposition, and serious assault on a person over 60. As well she is charged with possess utensils from 7 March 2016.
- The circumstances of the 13 March 2016 offending were that Ms McBryde’s behaviour had been worsening in the days prior to the offending. Her carer took her to Toowoomba to seek help at the hospital. Having arrived at the hospital in the afternoon Ms McBryde was contrary and unco-operative, and then took herself off to the ambulance bay to have a cigarette. When she was told she could not smoke there, she continued out into a rainy afternoon. At some point she broke into a house near the hospital which was owned by a doctor. She ran herself a bath; lit some candles, helped herself to the contents of the fridge and smoked some cigarettes. She got dressed in the doctor’s scrubs, put on the doctor’s makeup and jewellery and took some money and a knife. She then made her way to the hospital carpark. She importuned a member of staff who was coming off duty, saying that she was a new doctor at the hospital and asked if he could point her in the way of the psychiatric department. Very soon after that she assaulted him quite seriously with the knife.
- The reference was filed with a report from Dr Kovacevic dated 28 May 2016. This report was brief. Dr Kovacevic did not purport to examine all the material which this Court would have on a hearing. He expressed a “preliminary opinion” supporting unsoundness based on “limited information” and said:
“I am therefore prepared to support a referral to the Mental Health Court where the issue of her criminal capacities can be investigated further. I would recommend that a Court appointed psychiatrist should have access to Miss McBryde’s medical records and witness statements. I recommend obtaining a collateral history from those who were in contact with Miss McBryde in the days leading up to her alleged offending.”
- Then on 20 April 2018 Dr Kovacevic wrote a letter to Legal Aid which said:
“Thank you for providing the additional material and requesting an addendum report.
I wish to advise I have not altered my opinion with regards to the question of unsoundness of mind.
My opinion regarding the question of fitness to stand trial it outdated and your client would need to be re-assessed closer to the time of the Mental Health Court hearing.
I hope this information is of some assistance.”
- This state of reporting was of almost no assistance to the Court. I understand that Legal Aid has a limited budget, and I accept that a report in the nature of Dr Kovacevic’s 28 May 2016 report may be sufficient to support a reference to the Court. However, if there is going to be a contested hearing in the Court where, in this case, Dr Kovacevic’s opinions are to be the basis for the defendant submitting that there is a defence of unsoundness available, a proper report needs to be obtained before the hearing. The very brief letter of 20 April 2018 is not sufficient. It does not say what additional material Dr Kovacevic had. While Dr Kovacevic says that he had not altered his opinion with regards to the question of unsoundness, the factual material, including the opinions of other psychiatrists as to what illnesses or mental health conditions the defendant suffered, had greatly increased, yet there is nothing at all to assist the Court in understanding the basis of Dr Kovacevic’s opinion as to unsoundness. Further, as to fitness, which in fact became the most important question for this Court, Dr Kovacevic said nothing.
- The Court needs more assistance from reporting psychiatrists than Dr Kovacevic offered in this case. His client needed more by way of reporting than Dr Kovacevic offered her in this case, and it was her lawyer’s job to have a proper report prepared. It is of no assistance to a defendant, or to the Court, to have vaguely formulated and ill thought‑out opinions put forward which do not comply with fundamental rules of evidence such as the rule that an expert report should allow the Court to understand why an expert has reached conclusions.
- In his oral evidence Dr Kovacevic wavered between his original opinion that the defendant was experiencing a brief psychotic episode at the time of the offending, and the opinion that the current treating doctors were likely correct in their diagnosis of schizoaffective disorder and that, therefore, it was likely the defendant was suffering a relapse of schizoaffective disorder at the time of the offending. It particularly mattered in this case for very soon after the assault in the carpark the defendant gave a version of events to police. That was recorded, and it gave non-psychotic reasons for her actions. Dr Kovacevic agreed in his evidence that a non‑psychotic account given so soon after the offending was far more consistent with the defendant having suffered a brief psychotic episode than with her having suffered a relapse of schizoaffective disorder.
- Dr Voita gave a report of 3 March 2017. She has been the defendant’s treating psychiatrist since 23 June 2016 and had, at the time of her report, seen the defendant on more than 40 occasions. She has the view that Ms McBryde is properly diagnosed as having schizoaffective disorder and borderline personality disorder.
- Dr Voita obtained a history from the defendant that she had used half a gram of amphetamine intravenously a couple of days before the offending and had not had much sleep between that drug use and the time of the offending. The defendant told Dr Voita that she was “high as a kite as well as psychotic” at the time of the offending. As well Dr Voita gathered the information that on 7 March 2016 the defendant told her general practitioner she was using 25 cones of marijuana a day, and that she had smoked cannabis at 8.00 pm on the day before the offending. Further, that on 11 March 2016 the defendant had telephoned her case manager to say that she had spent all her money (thought to be around $350) on buying amphetamine and cannabis.
- There are obvious difficulties with this history. First, it is most unlikely the defendant purchased half a gram of amphetamine with $350. Further, half a gram of amphetamine is a great deal to inject at one time. It appears none of this history was questioned. However, not having questioned the history, Dr Voita did not deal with it in order to assess whether or not the defendant was intoxicated at the time of the offending. She gave the opinion that she thought the defendant was deprived of the capacities to know she ought not do the acts, and to control herself at the time of the offending.
- Dr Voita thought the defendant was unfit for trial presently. She had tried many antipsychotic medications before trialling Clozapine. She had thought that the defendant did respond to treatment with Clozapine for some time, but then had deteriorated again in the months prior to the hearing of the reference before this Court.
- Dr Scott gave a report dated 5 January 2018. He thought that the defendant had borderline personality disorder and chronic dysthymia, but saw her behaviour on 13 March 2016 as behaviour which was predominantly caused by her borderline personality disorder. He relied upon her behaviour in the watch-house and her statements to police immediately after the offending as indicating that she was not deprived of any capacity. He found no evidence of intoxication.
- At the time Dr Scott saw the defendant he thought that she was temporarily unfit. He would not be drawn in his oral evidence as to whether or not he thought the unfitness was permanent.
- In all these circumstances, I was grateful for the advice of my assisting psychiatrist Dr Harden. He advised that I accept the opinions that the defendant suffered from borderline personality and advised that the facts of this offending were made complicated by the fact that people with borderline personality disorder do hear voices, often called pseudo‑hallucinations, as part of that disorder. Having such pseudo-hallucinations does not mean that the person has an illness and it does not mean that the person is psychotic.
- Dr Harden advised that there was clear evidence, looking over the defendant’s history, that she had suffered from severe mood disturbance, depression, but not mania, in the past.
- He did not think that the evidence supported the defendant suffering from any psychosis until June 2016, ie., after the offending. He preferred the opinion of Dr Voita as to current diagnosis – schizoaffective disorder. However, he advised that he could not see any evidence of symptoms that were convincingly psychotic in the period around the offending.
- In those circumstances, it seems to me that the evidence does not establish that the defendant suffered from something which qualified as a mental disease at the time of the offending. Furthermore, there was no convincing evidence to my mind that the defendant was deprived of any capacity at the time of the offending. Dr Harden advised that the police recording, as well as the defendant’s own account of her behaviour (which she said was driven by voices), did not “show positive evidence of psychotic phenomena that clearly deprived her of capacity”.
- Dr Harden’s view was that it would be unusual for the defendant to be intoxicated two days after having consumed drugs. He preferred the view of Dr Scott in this regard. So do I. The version which the defendant gave to Dr Voita might well raise questions as to intoxication but primarily, to my mind, it raises questions as to its reliability.
- Dr Harden advised that realistically the evidence showed that this defendant was permanently unfit for trial in respect of these defences. As he said:
“Dr Voita couldn’t bring herself to say that she was permanently unfit, but she’s been in High Secure Hospital for two years. She’s a little bit improved. … I think there’s a vanishingly small chance that she will become fit enough to give evidence in a trial. It seems likely that her decompensation in more recent times may well be related to matters associated with this hearing.”
- My findings are that:
- The defendant was not of unsound mind at the time of the offending.
- The defendant is permanently unfit for trial.
- There ought to be a forensic order made.
- Published Case Name:
In the matter of Emilie Jean McBryde
- Shortened Case Name:
In the matter of Emilie Jean McBryde
 QMHC 11
23 Oct 2018