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DAR v DPP (Qld)

 

[2008] QCA 309

 

SUPREME COURT OF QUEENSLAND

 

CITATION:

DAR v DPP (Qld) & Anor [2008] QCA 309

PARTIES:

DAR
(plaintiff/appellant)
v
DIRECTOR OF PUBLIC PROSECUTIONS (QUEENSLAND)
(defendant/first respondent)
DIRECTOR OF MENTAL HEALTH
(defendant/second respondent)

FILE NO/S:

Appeal No 2664 of 2008

QMHC No 254 of 2006

DIVISION:

Court of Appeal

PROCEEDING:

Appeal from the Mental Health Court

ORIGINATING COURT:

Mental Health Court at Brisbane

DELIVERED ON:

3 October 2008

DELIVERED AT:

Brisbane 

HEARING DATE:

5 September 2008

JUDGES:

Keane, Holmes and Fraser JJA

Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Appeal dismissed

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – NATURE OF RIGHT – APPEALS IN THE STRICT SENSE AND APPEALS BY WAY OF REHEARING – DISTINCTION – whether the right of appeal from a decision of the Mental Health Court is an appeal in the strict sense or an appeal by way of rehearing on the record

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – INTERFERENCE WITH JUDGE'S FINDINGS OF FACT – PROOF AND EVIDENCE – BURDEN OF PROOF – where the Mental Health Court approached its evaluation of the evidence on the basis that what was required was satisfaction on the balance of probabilities supported by clear and convincing evidence – whether the standard of proof applied by the Mental Health Court was unduly onerous

CRIMINAL LAW – GENERAL MATTERS – CRIMINAL LIABILITY AND CAPACITY – DEFENCE MATTERS – DIMINISHED RESPONSIBILITY – GENERALLY – where there was competing evidence before the Mental Health Court as to the contributing role played by the appellant's anger towards her former husband in her unlawful conduct – where the Mental Health Court was not satisfied on the balance of probabilities that the offending by the appellant was not an act of revenge, as opposed to any abnormality of mind – whether the Mental Health Court erred in its evaluation as to the relevance of the appellant's anger to the availability of a defence of diminished responsibility

CRIMINAL LAW – GENERAL MATTERS – CRIMINAL LIABILITY AND CAPACITY – DEFENCE MATTERS – DIMINISHED RESPONSIBILITY – GENERALLY – where there were divergent expert opinions in evidence as to the relevant capacity of the appellant said to have been impaired at the time of the offending – where the Mental Health Court declined to find that there had been a substantial impairment of any of the appellant's relevant capacities at the time of the offending – whether the Mental Health Court erred in its approach to the evaluation of the competing evidence

Criminal Code Act 1899 (Qld), s 27, s 304A

Mental Health Act 2000 (Qld), s 4, s 267, s 317, s 333, s 334, s 336, s 405, Sch 2

Uniform Civil Procedure Rules 1999 (Qld), r 745, r 765, r 766

A-G (Qld) v Kamali (1999) 106 A Crim R 269; [1999] QCA 219, considered and distinguished

Abalos v Australian Postal Commission (1990) 171 CLR 167; [1990] HCA 47, cited

Allesch v Maunz (2000) 203 CLR 172; [2000] HCA 40, applied

Button v Director of Mental Health & Anor [2005] QCA 67, considered

Da Costa v Cockburn Salvage & Trading Pty Ltd (1970) 124 CLR 192; [1970] HCA 43, cited

Fox v Percy (2003) 214 CLR 118; [2003] HCA 22, applied

Hansen v DPP & Anor [2006] QCA 396, considered

Hoyts Pty Ltd v Burns (2003) 77 ALJR 1934; [2003] HCA 61, cited

Logan v Woongarra Shire Council [1983] 2 Qd R 689, cited

McDermott v The Director of Mental Health; ex parte A-G (Qld) (2007) 175 A Crim R 461; [2007] QCA 51, considered

R v Bromage [1991] 1 Qd R 1, distinguished

R v Ferguson; ex parte A-G (Qld) [2008] QCA 227, cited

R v Miers [1985] 2 Qd R 138, cited

R v Nielsen [1990] 2 Qd R 578, cited

R v Schafferius [1987] 1 Qd R 381, applied

R v Whitworth [1989] 1 Qd R 437, applied

Re Pitt [2000] QCA 30, distinguished

South Australian Land Mortgage and Agency Co Ltd v The King (1922) 30 CLR 523; [1922] HCA 17, cited

Victorian Stevedoring and General Contracting Co Pty Ltd and Meakes v Dignan (1931) 46 CLR 73; [1931] HCA 34, cited

Werribee Council v Kerr (1928) 42 CLR 1; [1928] HCA 41, applied

COUNSEL:

M J Byrne QC, with S M Gordon, for the appellant (pro bono)

S J Hamlyn-Harris for the respondent

SOLICITORS:

Raniga Lawyers for the appellant (pro bono)

Director of Public Prosecutions (Queensland) for the respondent

  1. KEANE JA:  The appellant has been charged with the murder of two of her children and the attempted murder of a third child.  The deaths occurred between 20 November and 22 November 2002.  The children were last seen by independent witnesses at about 5.00 pm on Wednesday, 20 November; the bodies of the two children who were killed were found in the appellant's garage at approximately 9.00 am on Friday, 22 November.  Evidence from a pathologist was that the deaths occurred some time on the Wednesday night.
  1. In 2006 the matter of the appellant's mental state at the time of the alleged offences was referred to the Mental Health Court ("the MHC") for determination, pursuant to s 267 of the Mental Health Act 2000 (Qld) ("the Act"), as to whether the appellant was of unsound mind or diminished responsibility at that time.
  1. On 29 February 2008 the MHC determined that, at the time of the alleged offences, the appellant was not of unsound mind nor of diminished responsibility.
  1. The appellant appeals to this Court seeking a determination to the effect that the appellant was of diminished responsibility at the time of the alleged offences. The appellant does not seek to argue that this Court should conclude that she was of unsound mind at the material time.
  1. In support of the appeal, it is contended on the appellant's behalf that the decision of the MHC was:
  1. erroneous, in that the MHC approached the evaluation of the evidence on the footing that the appellant's anger towards her former husband precluded a finding of diminished responsibility;
  1. based upon an erroneous finding that there was insufficient evidence that the appellant was suffering from a state of abnormality of mind;
  1. based upon an erroneous finding that there was insufficient evidence to conclude that any of the appellant's relevant capacities had been substantially impaired.
  1. I will discuss these contentions in due course, but, at the outset, it is necessary to be clear about the nature of the appeal to this Court from the MHC.

The nature of the appeal to this Court

  1. The right of appeal from the MHC to this Court is created by s 334 of the Act. Section 336 provides that "[t]he procedure for the appeal is to be in accordance with court rules applicable to the appeal or, if the rules make no provision or insufficient provision, in accordance with the directions of the Court of Appeal." In this regard, there are no existing court rules applicable to the appeal to this Court.
  1. The question which must be addressed is whether the right of appeal created by s 334 of the Act is a right of appeal in the strict sense or a right of appeal by way of a rehearing on the record.  The distinction between a right of appeal in the strict sense and a right of appeal by way of rehearing is important.  In the High Court in Allesch v Maunz,[1] it was said that on an appeal strictly so-called the power of the appellate court to intervene depends upon the identification of error on the part of the court from which the appeal comes.  More recently in the joint judgment in the High Court in Fox v Percy,[2] it was said that the "sole duty" of a court of appeal conducting an appeal in the strict sense is "to determine whether error has been shown" on the part of the court from which the appeal comes.  In such an appeal, "[the] Court is not engaged in a rehearing.  As such, it is not [the] Court's task to decide where the truth lay as between the competing versions of … the parties."
  1. A right of appeal is entirely a creature of statute; and the nature and scope of the right of appeal created by a statute must be determined by reference to the terms of that statute.[3]  It has been said that, in approaching this question of statutory construction, an appeal will be regarded as an appeal in the strict sense, and not one by way of rehearing, unless the statute expressly or by necessary implication demonstrates an intention that the appeal should be by way of a rehearing.[4]  On this view, a clear expression of legislative intention is required to alter the prima facie character of the statutory right of appeal as an "appeal" so that it becomes, in substance, a hearing of the case for a second time.[5]  As Dixon J observed in Victorian Stevedoring and General Contracting Co Pty Ltd and Meakes v Dignan,[6] a right to a rehearing "smacks rather of original jurisdiction".  Whether or not one approaches the question of construction with a presumption that a reference to an appeal in a statute is a reference to an appeal in the strict sense, it is, I think, tolerably clear that the appeal created by the Act from the MHC to this Court is one in which this Court should not intervene in the absence of demonstrated error on the part of the MHC.
  1. The language of s 336 of the Act stands in contrast to the language of s 333 which contains an express provision that an appeal from the Mental Health Tribunal to the MHC is "by way of rehearing, unaffected by the tribunal's decision, on the material before the tribunal and any further evidence the [MHC] allows." The absence of any such provision in s 336 suggests that the legislature intended that an appeal from the MHC to this Court is not an appeal in any special or extended sense, such as an appeal by way of rehearing, but an appeal in the strict sense.[7] 
  1. It was argued on the appellant's behalf that the appeal to this Court from the MHC should be regarded as if it were an "ordinary appeal to this Court from the Trial Division of the Supreme Court", and so should be regarded as an appeal by way of a rehearing on the record. This argument fails to recognise that the right of appeal to this Court from the MHC is framed in terms which are quite different from those pertaining to the right of appeal from the Trial Division of the Supreme Court to this Court.
  1. Rule 765(1) of the Uniform Civil Procedure Rules 1999 (Qld) ("the UCPR") provides that an appeal to the Court of Appeal under Ch 18 of the UCPR is "an appeal by way of rehearing".  On appeal by way of rehearing to this Court, the Court must, while recognising the advantages enjoyed by the judge who conducted the trial, decide the case for itself on the evidence in the record,[8] and any such further evidence as the court may permit to be adduced "on special grounds" pursuant to r 766(1)(c) of the UCPR.  The material provisions of Ch 18 of the UCPR, and, in particular, r 765 and r 766, are contained in Pt 1 of Ch 18. 
  1. Rule 745(1) of the UCPR provides relevantly that Pt 1 of Ch 18 applies:

"to an appeal to the Court of Appeal from a decision of–

(a) the Supreme Court constituted by a single judge; or

(b) the District Court, the Industrial Court, the Land Appeal Court and the Planning and Environment Court; or

(c) another body from which an appeal lies to the Court of Appeal."

Importantly, r 745(2) provides:  "However, rule 765 applies only to an appeal from the Supreme Court constituted by a single judge."

  1. In terms of r 745(1)(a), the MHC is not the "Supreme Court constituted by a single judge"; rather, it is "another body from which an appeal lies to the Court of Appeal." Accordingly, r 765 does not operate to render the right of appeal to this Court from the MHC created by the Act a right of appeal by way of rehearing as if it were an appeal to this Court from the Trial Division of the Supreme Court.
  1. Accordingly, one may say that the absence of an express statement in the Act that the appeal to this Court from the MHC should be by way of rehearing, and the negative implication of express provision in s 333 of the Act, combine to suggest that the appeal from the MHC to this Court is an appeal in the strict sense.
  1. This suggestion is confirmed, in my respectful opinion, by consideration of the special nature of the jurisdiction of the MHC. Section 4 of the Act states that the purpose of the Act is:

"to provide for the involuntary assessment and treatment, and the protection, of persons … who have mental illnesses while at the same time … safeguarding their rights and freedoms; and … balancing their rights and freedoms with the rights and freedoms of other persons."

To this end, as s 5 of the Act explains, the Mental Health Review Tribunal is established to "carry out reviews relating to involuntary patients; and … hear applications to administer or perform particular treatments".  The MHC is established to "decide the state of mind of persons charged with criminal offences".

  1. By virtue of s 381 of the Act, the MHC is established as a superior court of record. Under s 382, the MHC is constituted by a Supreme Court judge appointed to the MHC pursuant to s 385. In exercising its jurisdiction under the Act, the MHC "must be assisted by 2 assisting psychiatrists."
  1. By virtue of s 383(1), the MHC has jurisdiction to decide appeals against decisions of the Tribunal, to decide references of the mental condition of persons, and to investigate the detention of patients in authorised mental health services. Under s 383(2), in exercising its jurisdiction, the MHC "must inquire into the matter before it; and … may inform itself of any matter relating to the inquiry in any way it considers appropriate."  Obviously, in the course of exercising this special jurisdiction, the MHC can be expected to develop expertise in this peculiarly difficult field of knowledge.
  1. By virtue of s 404 of the Act, the MHC is not bound by the rules of evidence unless it decides that it is in the interests of justice that it should be so bound.
  1. The Act thus establishes the MHC as a tribunal in which special knowledge and skills are to be marshalled in the determination of matters of special difficulty. It would, I think, be distinctly incongruous to attribute to the legislature which has established this specialist tribunal an intention that decisions of the MHC might be set aside on appeal to this Court – which enjoys none of the MHC's special advantages – on the basis of this Court's inexpert view of where the truth lay as between competing bodies of expert evidence. In the light of the provisions of the Act to which I have referred, one cannot rationally attribute to the legislature an intention that this Court could substitute its own view of the expert evidence without the benefit of the kind of advice provided by the assisting psychiatrists to the MHC save in those cases where the view of the MHC is demonstrably wrong.
  1. The force of these considerations is further strengthened by the circumstance that, by virtue of s 317 of the Act, a decision by the MHC adverse to a person charged with an offence does not preclude the accused person from raising defences of insanity or diminished responsibility in the course of a trial for the offence. The accused person may pursue the defence in question at trial and subsequently on appeal to this Court pursuant to s 668E of the Criminal Code 1899 (Qld).  In these proceedings, an accused person will have every opportunity to adduce such evidence, including evidence additional to that adduced before the MHC, as the accused might wish to adduce.  That being so, it is hardly surprising that the appeal to this Court from the MHC was not intended to be an appeal by way of rehearing.
  1. For these reasons, if the point were free from authority, I would readily conclude that the statutory provisions which regulate the right of appeal from the MHC to this Court confirm that the legislature did not intend that an appeal to this Court from the MHC could succeed on the basis of findings of fact contrary to those made by the MHC where the view of the evidence taken by the MHC was reasonably open to it.
  1. In Hansen v DPP & Anor,[9] I expressed the view that "the appeal to this Court under s 334 to s 337 of the Act is an appeal in the strict sense and not an appeal by way of rehearing … [so that] it is not open to this Court to substitute its view of the facts for that taken by [the MHC]."  In earlier decisions of this Court in A-G (Qld) v Kamali[10] and Button v Director of Mental Health & Anor,[11] the parties and the Court proceeded, without argument, on the basis that the appeal to this Court under s 334 to s 337 of the Act is an appeal by way of rehearing based on the record below.  In this Court's more recent decision in McDermott v The Director of Mental Health; ex parte A-G (Qld),[12] this difference of views was noted, but, because it was not necessary to resolve that difference in that case, no view was expressed on the point.
  1. The views of this Court in A-G (Qld) v Kamali were expressed without the benefit of argument on the question;[13] accordingly, they are not of such authority that they should be treated as obliging this Court to adhere to them unless satisfied that they were clearly wrong.[14]  Further, in my respectful opinion, the observations in A-G (Qld) v Kamali are of little persuasive assistance in relation to the nature of appeal from the MHC to this Court under the Act.  In A-G (Qld) v Kamali, this Court was concerned with the Mental Health Act 1974 (Qld), the predecessor to the Act.  The earlier legislation was in materially different terms:  importantly, it did not contain a provision equivalent to s 333 of the Act.  Furthermore, the implications of the special role of the tribunal, which was the equivalent of the MHC under the legislation considered in A-G (Qld) v Kamali, was not adverted to by the Court in that case.
  1. In Button v Director of Mental Health & Anor,[15] the parties to an appeal to this Court under the Act agreed that the Court should proceed on the footing that the appeal was by way of a rehearing.[16]  Douglas J observed obiter that "[t]he nature of the appellate jurisdiction from the Mental Health Court may … in future cases, need further consideration."  His Honour went on to say:

"The essentially factual issues argued in this appeal, and the parties’ adoption of the approach in Kamali (1999) 106 A Crim R 269 at 270 that the appeal should be treated as one by way of rehearing based on the record before the tribunal, make it unnecessary to decide what the nature of an appeal from the Mental Health Court to this Court is. The Mental Health Act 2000 (Qld) provides little guidance. Section 334 sets out who may appeal. Section 335 provides how to start an appeal while s 336 provides for hearing procedures in these terms:

'The procedure for the appeal is to be in accordance with court rules applicable to the appeal or, if the rules make no provision or insufficient provision, in accordance with directions of the Court of Appeal.'

Rule 745(1)(c) of the Uniform Civil Procedure Rules 1999 (Qld) applies Part 1 of Chapter 18 of those Rules to an appeal to the Court of Appeal from a decision of 'another body from which an appeal lies to the Court of Appeal' such as, here, the Mental Health Court. Rule 765(1) provides that an appeal to the Court of Appeal under Chapter 18 of the Rules is an appeal by way of rehearing. Rule 745(2) provides, however, that r 765 applies only to an appeal from the Supreme Court constituted by a single judge. As this is not an appeal from the Supreme Court but from the Mental Health Court r 765 does not apply to it.

Rule 766, however, which does apply to this appeal, gives the Court of Appeal the power to draw inferences of fact and receive further evidence on special grounds, both of which are characteristic of an appeal by way of rehearing (See Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd (1976) 136 CLR 616 at 619).

Those provisions suggest that it is appropriate to deal with this case as an appeal by way of rehearing."[17]

  1. On this point White J said:

"This appeal was conducted on the basis that it was by way of re-hearing on the record as had been the approach to appeals under the Mental Health Act 1974 (Qld) in respect of appeals from the Mental Health Tribunal, the forerunner of the present Mental Health Court (see Kamili [sic] at 270).

Douglas J has set out the provisions in the Uniform Civil Procedure Rules 1999 (Qld) which apply the relevant rules to appeals from a body such as the Mental Health Court. His Honour suggests that the appellate jurisdiction from that Court may, in future cases, need further consideration. It is of some interest to note that appeals to the Mental Health Court from decisions of the Mental Health Review Tribunal established under s 333(2) of the Mental Health Act are described to be:

'... by way of re-hearing, unaffected by the Tribunal’s decision, on the material before the Tribunal and any further evidence the court allows.'

Immediately following are the provisions in Part 2 of Chapter 8 concerning appeals against decisions of the Mental Health Court on references. Section 336 mirrors the provisions in s 333(1) relating to appeals from the Mental Health Review Tribunal in that:

'The procedure for the appeal is to be in accordance with court rules applicable to the appeal or, if the rules make no provision or insufficient provision, in accordance with the direction of the Court of Appeal.'

What does not follow is a description of the nature of the appeal paralleling s 333(2). As Douglas J has observed, it may be that the deliberate omission of such a provision might suggest that an appeal under Chapter 8 Part 2 of the Mental Health Act 2000 (Qld) to this Court is an appeal in the strict sense: Victorian Stevedoring and General Contracting Co Pty v Meakes (Dignan informant) (1931) 46 CLR 73 per Dixon J at 107 and ff and Evatt J at 112-3; Logan v Woongarra Shire Council [1983] 2 Qd R 689 per G N Williams J with whom Matthews and Kelly JJ agreed at 691. There would be no different outcome if the narrower approach were taken here."[18]

  1. Williams JA was the third member of the Court in Button v Director of Mental Health & Anor.  His Honour did not advert to this issue.
  1. It may be accepted that r 766 of the UCPR does apply to this appeal. It may also be accepted that the power to draw inferences of fact and, on special grounds, to receive further evidence as to questions of fact, may in some statutory contexts be characteristic of an appeal by way of rehearing. The express conferral of these powers by r 766 of the UCPR occurs, however, in a context which includes r 765. Thus the powers conferred by r 766 are conferred on this Court whether or not the appeal is by way of rehearing. Accordingly, the express conferral of these powers on this Court by r 766 cannot be decisive of the question whether the appeal to this Court from the MHC is by way of rehearing, as would be the case if r 765 of the UCPR applied. Much less can they be regarded as warranting the conclusion that the appeal to this Court for which the Act provides is intended to be an appeal by way of rehearing so as to permit or require this Court to come to different findings of fact based on its own preference for a view of the evidence contrary to a view which was reasonably open to the MHC.
  1. Accordingly, I adhere to the view I expressed in Hansen v DPP that the appeal to this Court from the MHC is an appeal in the sense that such an appeal can succeed only if the MHC can be shown to have fallen into error of fact or law.[19] 
  1. I proceed now to set out the legislation which bears on the questions decided by the MHC, to summarise the circumstances of the offences alleged against the appellant and their immediate aftermath, to summarise the psychiatric evidence and advice given to the MHC and then to set out the findings of the MHC. I will then discuss the arguments advanced in support of the appeal.

The legislation

  1. Section 267 of the Act provides:

"Mental Health Court to decide unsoundness of mind and diminished responsibility

(1) On the hearing of the reference, the Mental Health Court must–

(a) decide whether the person the subject of the reference was of unsound mind when the alleged offence was committed; and

(b) if the person is alleged to have committed the offence of murder and the court decides the person was not of unsound mind when the alleged offence was committed–decide whether the person was of diminished responsibility when the alleged offence was committed.

(2) This section has effect subject to sections 268 and 269."

  1. Even though the appellant does not now contend for a determination that the appellant was of unsound mind at the time of the alleged offences, it is desirable to refer to the statutory provisions relating to unsoundness of mind in order to provide a full context for the discussion of the appellant's arguments relating to diminished responsibility. By Sch 2 of the Act, the term "unsound mind" is defined to mean:

"the state of mental disease or natural mental infirmity described in the Criminal Code, section 27, but does not include a state of mind resulting, to any extent, from intentional intoxication or stupefaction alone or in combination with some other agent at or about the time of the alleged offence."

  1. Section 27 of the Criminal Code provides:

"Insanity

(1) A person is not criminally responsible for an act or omission if at the time of doing the act or making the omission the person is in such a state of mental disease or natural mental infirmity as to deprive the person of capacity to understand what the person is doing, or of capacity to control the person’s actions, or of capacity to know that the person ought not to do the act or make the omission.

(2) A person whose mind, at the time of the person’s doing or omitting to do an act, is affected by delusions on some specific matter or matters, but who is not otherwise entitled to the benefit of subsection (1), is criminally responsible for the act or omission to the same extent as if the real state of things had been such as the person was induced by the delusions to believe to exist."

  1. In relation to "diminished responsibility", s 304A of the Criminal Code provides:

"(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."

  1. Section 405 of the Act provides that no party to a proceeding under s 267 of the Act bears the onus of proof, and the matter to be decided by the MHC must be decided on the balance of probabilities.

The alleged offences and their immediate aftermath

  1. The MHC summarised the tragic circumstances of the alleged offences as follows:

"The deceased children [C], aged 10, and her brother [J], aged 8, were found in the rear seat of the defendant’s vehicle, which was located in the garage of the family home at Sandstone Point, Bribie Island. They died as a result of carbon-monoxide poisoning. A hose was found attached to the exhaust of the vehicle. The defendant and the third child, [H], who was aged 16 and who suffers from an intellectual disability, were found inside the house. Suicide notes in the defendant’s hand were located in the house.

It appears that the defendant had given the children sleeping tablets obtained as a result of having an old prescription filled. She had ground the tablets, put them in milk which she gave to the children, and had then taken them for a drive. When she returned home she fixed the hose to the car. The defendant herself had not taken any sleeping tablets. She was able to recall becoming sick and falling out of the vehicle. She noticed at one stage that [H] was not sitting in the passenger seat. She made her way into the house where she collapsed. The defendant suffered carbon-monoxide poisoning, renal failure and a right leg compartment syndrome, which required urgent fasciotomy."[20]

The psychiatric evidence

  1. A number of psychiatrists gave evidence before the MHC. These were Dr Slack, Dr Curtis, Dr Reddan and Dr Sundin.  It is common ground that the evidence of each of these psychiatrists was accurately summarised by the MHC.  It is, therefore, convenient to review the evidence of each of these witnesses by reference to the summary given by the MHC.
  1. Shortly after the deaths of the appellant's children, the appellant was seen by Dr Slack, a consultant psychiatrist at the intensive care unit of the Redcliffe Hospital.  When Dr Slack interviewed the appellant shortly after she was arrested, he found her to be moderately depressed with no evidence of psychosis or melancholia.  Before Dr Slack gave his evidence, he was provided with Dr Curtis' report, and, in his evidence-in-chief to the MHC, opined that the appellant had suffered a Major Depressive Episode which deprived her of her capacity to know that she ought not to do the actions in question and her capacity to control her actions. 
  1. In relation to Dr Slack's evidence, the MHC summarised the position as follows:

"… [T]he defendant had had an unharmonious marriage which ultimately resulted in an acrimonious divorce. The defendant and her former husband were engaged in a drawn out and bitter custody dispute in respect of the children. To Dr Slack the defendant reported that she last felt well nine months previously when she had first moved to Bribie Island. Over the last nine months, she reported being under considerable stress because of the custody dispute. She stated that she had deteriorated in the month before the events in question because of the added stressors of finding out that she had to move out of her rented house on short notice and receiving a large bill for legal fees for a January court hearing. A further stress was finding out that she would not have the children for Christmas as her husband had received custody for the first half of the holidays. She had also been involved in a recent brief relationship which had ended in the previous week, when she found out that the person (Mr DH) was already involved in a relationship. The defendant stated that she had been 'stressed out' and had not been eating well and had lost six or seven kilograms over the previous six months. Her sleep had been reasonable, but she found that she was worrying constantly and felt that her situation was irredeemable and hopeless. She said that, 'There was no way out.' She reported that she could not enjoy anything, such as watching television, reading, or any of her usual pursuits. She told Dr Slack that some days prior to the events in question she had formed a plan to commit suicide.

Dr Slack considered that the defendant presented with the cognitive, behavioural and neuro-vegetative features of a Major Depressive Episode, occurring in the context of multiple psycho-social stressors. Dr Slack, however, accepted that the defendant’s presentation to him was also consistent with bereavement and the realisation of what she had done. He diagnosed a Major Depressive Episode of moderate severity, but found no psychotic or melancholic features, although in oral evidence he expressed some ambivalence about the latter conclusion. His differential diagnosis was of an Adjustment Disorder with mixed emotional disturbances. He considered that the defendant was, as a result of her depressive condition, deprived of the capacity to know that she ought not to do the acts and was substantially impaired in the capacity to control her actions."[21]

  1. The appellant was examined by Dr Evans, the staff psychiatrist at the Princess Alexandra Hospital, shortly after the incidents in question.  Dr Evans' diagnosis was of "Major Depression, with no evidence of psychosis, no gross cognitive impairment and 'few melancholic features'."[22]
  1. The appellant was subsequently under the care of Dr Heffernan at the John Oxley Memorial Hospital.  The account given to Dr Heffernan by the appellant of her motivation for her actions suggests a degree of deliberation on her part as to the most effective means of taking revenge upon her former husband.  It appears that the appellant made an assessment of the strategy most likely to achieve that result.  In this regard, the MHC said:

"On his first comprehensive review on 18 December 2002, Dr Heffernan recorded that she did not seem pervasively depressed. He recorded the defendant as reporting being depressed for a long time and being worse over the two months before the events in question. She reported, 'All I could think about was losing the children. I’d devoted my life to them'. In relation to the events of the day in question, the notes record: 'suddenly came into my head', 'couldn’t see a future', a perceived rejection from a suitor, who 'flew off with girlfriend on that day', 'felt frightened and angry about loss of children', 'lost faith in justice', 'didn’t want children to suffer', 'didn’t want ex-husband to have them', 'angry about loss of children over Christmas', 'went to lunch - had 2 bourbon and coke over 3 hours'.

The hospital notes of 1 January 2003 record the following feelings towards the defendant’s former husband: 'wanted him ... to suffer the way I had suffered', 'If I had killed him, I would go to jail and the kids would go to foster homes, he would still have won'. On 2 January 2003, the notes record, 'Major Depressive Episode with melancholic features (resolving)' and themes of anger against the former husband continue; 'expressed anger toward ex-partner - discussions regarding 'winning or losing' in relation to ex-partner'.

On 3 January 2003, notations were made of reports of 'symptoms of depression such as feeling 'empty' or numb, not sleeping at night, not eating for anything up to four days at a time'. Also recorded is 'Intense anger at her husband for betraying her and leaving her...'. The defendant was also reported as saying that she 'didn’t plan to kill the children, did it impulsively, wanted to die with them'.

She was discharged on 6 February 2003 with diagnosis of Major Depressive Episode (resolved), Borderline Personality Disorder, right leg compartment syndrome, and relationship difficulties with mild impairment. She was prescribed an antidepressant, Efexor, and subsequently reviewed by Dr Burton who maintained her on that medication."[23]

  1. In relation to the evidence of Dr Curtis, the MHC said:

"The defendant was first seen and assessed by Dr Curtis on 29 November 2002. He provided a report dated 13 April 2004 and a further report dated 28 May 2004. Dr Curtis made an Axis I diagnosis of Major Depressive Disorder at the material time. Dr Curtis considered that the defendant’s depression was not an acute grief reaction and that it predated the alleged offending behaviour. He also made an Axis II diagnosis of Personality Disorder, noting that the defendant had a 'serious personality psychopathology, including paranoid, narcissistic and avoidant traits'.

I note that, although Dr Curtis opined in his report that the defendant had a severe Major Depressive Disorder, when questioned by Dr Varghese he modified his opinion as to its severity, stating it was 'of a moderate range', and explaining, 'If you look at Dr Slack’s observations and my own and those of Dr Evans, you can’t really score it higher than that'.

Dr Curtis outlined various psychosocial and environmental problems confronting the defendant and opined that the defendant 'perceived herself to be overwhelmed by stressors and to be in an extreme state which required her death and the death of her children'. The report given by the defendant to Dr Curtis was largely similar to that given to Dr Slack and Dr Evans. She said that she had started to feel unwell for about nine months when she had moved to Bribie Island with her children. In his report, Dr Curtis outlined in detail the various stressors experienced by the defendant, including that she was distressed in respect of several relationships with men, a recent pregnancy which resulted in termination, accommodation problems, and her anxiety in relation to the Family Court custody dispute and the Court’s decision precluding her from having any access to her children on Christmas Day. She was also attempting to run a car detailing business so as to give her retarded son employment. These stressors, he considered, led to increasing depression and distress in the weeks preceding the events in question and to the development of a Major Depressive Disorder, with weight loss, anhedonia, and suicidal thinking. She reported poor appetite with weight loss of seven kilos over a six month period. On the Global Assessment of Functioning Scale, he placed her on a score of 30; 'behaviour was probably influenced by abnormal mental content and serious impairment in communication or judgment'. He noted that the defendant was a long-standing mild cannabis user. She was experiencing excessive worrying, feeling hopeless and developed the belief that there was no way out of her problems. Dr Curtis placed particular emphasis on the defendant’s family history of depression and completed suicide and opined that the defendant had a genetic vulnerability arising therefrom.

In his report he noted that the defendant had formed the plan to kill herself and her children some days prior to events in question. However, in oral evidence he qualified that notation, indicating that he was unsure that the defendant had spoken in those terms and that he was inclined to the view that the defendant’s actions were more precipitous.

Dr Curtis concluded in his report and maintained in oral evidence that the defendant’s depression was of a 'psychotic depth in terms of how she thought about herself and the children in the context of life and death'. He identified psychotic features he considered to be present before and during the relevant period, as follows:

'Ms [DAR] told me her reasoning for the murder/suicide behaviour was based upon her inability to see how the children could survive separated from her. The reasoning appeared to be: the children will die without me. I am as good as dead, eclipsed from the world. I am going to complete my suicide. The children and I are inseparable. Therefore we all must die.'

Dr Curtis also, in oral evidence, relied on the concept of authochonous delusion, a suddenly formed delusion appearing without related thoughts, as pertinent to the defendant’s state of mind.

Dr Curtis thus supported a finding of unsoundness of mind, considering that the defendant was, as a result of her Major Depressive Disorder, deprived of the capacity to control her actions and to know she ought not to do the acts in question.

I note that Dr Curtis conceded that the defendant had expressed to him (and to others, quite consistently over the months in the Whitlock Unit) quite a deal of anger towards her former husband. In his report, Dr Curtis stated that the defendant told him that dealing with her own survival and the deaths of her children was not part of the plan. He recorded that, 'The separated husband was supposed to be dealing with the deaths of all of them'. She told Dr Curtis that she believed that her ex-husband would have liked her to just do herself in and that he had already destroyed her life. In his report, Dr Curtis also recorded that the defendant’s 'reasoning for the deaths of her and her children was that she and her children would not have to suffer any more through [her ex-husband]' and that he had allegedly made her life hell, taken her backwards and forwards to court, and that she believed that she had been tricked about Christmas."[24]

  1. The arguments advanced in this Court on behalf of the appellant rely strongly upon Dr Curtis' original opinion that the appellant was "as a result of her Major Depressive Disorder, deprived of the capacity to control her actions and to know she ought not to do the acts in question." It must be noted, however, that, as the MHC observed, Dr Curtis modified his views in the course of giving evidence. It is understandable that the confidence of the MHC in the reliability of Dr Curtis' original opinion may have been adversely affected by Dr Curtis' resiling from the suggestion in his notes that the appellant had formed the plan to kill her children some days prior to putting that intention into execution. The MHC was also entitled to regard it as significant in relation to the cogency of the evidence of Dr Curtis, as well as that of Dr Slack, that Dr Slack conceded that it is difficult sensibly to describe a patient with "moderate depression" and without psychosis or melancholia as being "deprived" of a relevant capacity.
  1. The MHC summarised the evidence of Dr Reddan in the following terms:

"In her report of 25 October 2004, Dr Reddan concluded that the defendant did not suffer from a mental disease at the relevant time and there was no evidence of deprivation of any of the three capacities.

Dr Reddan observed that in the period leading up to the alleged offences, the defendant reported feeling increasingly depressed and worried about a number of problems and that her emotional state at that time could be characterised as an Adjustment Disorder with mixed disturbance of emotions and conduct.

Dr Reddan found no evidence of psychosis at the relevant time. She observed that the suicide notes left by the defendant revealed no psychosis. She found the defendant an unreliable historian and concluded that her observed social behaviour in the period preceding the events in question, including visiting and seeking out friends and seeking out relationships, was inconsistent with melancholic depression. Dr Reddan noted discrepancies as to whether the defendant had suffered weight loss, but did not place much emphasis on that particular factor, observing that the picture was complicated by her use of Duromine.

Dr Reddan cautioned that the defendant’s mental state, as described by those who attended to her while in hospital, did not necessarily mirror that at the time of the index offences, given that the defendant was suffering serious injuries, was aware of the outcome of her actions, and was being medicated. Nevertheless, Dr Reddan accepted that for some time before the offences, the defendant could have been developing depression of a non-melancholic type. While Dr Reddan preferred the diagnosis of Adjustment Disorder, she agreed that the boundaries between that condition and a mild to moderate Major Depressive Episode of a non-melancholic type were unclear, and was prepared to accept that such depression may have been present.

Dr Reddan also diagnosed Personality Disorder with significant borderline and narcissistic personality traits. In her report she described primitive or immature defence mechanisms with a tendency to marked anger, idealisation, devaluation, and in particular to projection. She described a tendency to form rapid, although shallow attachments, and to feel threatened by implied or real abandonment. Dr Reddan noted the report of cannabis use and opined that, while it was likely that she was chronically intoxicated with this drug, there was no evidence that intoxication played any role in the commission of the offences.

Dr Reddan noted that the defendant implied that once the idea of killing her children and herself occurred to her, she felt quite drawn to the idea as a solution to her difficulties. Nevertheless, Dr Reddan discounted that account to some extent, observing that she found it difficult to accept that there had not been some time spent in undertaking the activity and thinking how to implement it. While Dr Reddan observed that there was little doubt that a major aspect of the defendant’s motivation was to hurt her former husband, I note that Dr Reddan also stated in oral evidence that she saw the defendant’s state of mind at the relevant time as being beyond the ordinary ambit of human emotions.

She opined that, if the combination of a Personality Disorder and an Adjustment Disorder were determined to represent an abnormality of mind, then a defence of diminished responsibility under s 304A may be available. In that case, the capacity which she identified might have been substantially impaired was the capacity to control her actions."[25]

  1. The MHC summarised the evidence of Dr Sundin in the following terms:

"Dr Sundin was also unable to support a finding of unsoundness. She noted that the defendant did not report or display any symptoms suggestive of a psychotic illness. Nor did she support melancholic depression. Dr Sundin referred to the diagnostic difficulties in differentiating between a diagnosis of Major Depression as opposed to an Adjustment Disorder with mixed disturbance of emotions and conduct.

However, Dr Sundin favoured a diagnosis of Adjustment Disorder, largely on the observations of external witnesses as to the defendant’s behaviour in the weeks prior to the index offences and the defendant’s report to Dr Sundin, which referred to some disturbance of mood, anxiety, and a good deal of anger, but not full-blown neuro-vegetative disturbance such as would be expected in a Major Depressive Disorder.

Dr Sundin observed that the defendant described feeling intermittently depressed, but did not describe periods of pervasively depressed mood, rather she described her pervasive mood state as one of anger and irritation; she felt victimised by her husband, the Family Law Court system and men in general. Dr Sundin noted, as had Dr Reddan, that while there was some diminution in activities, she was still socialising regularly with friends both at her home and at social venues. As to the defendant’s report of loss of appetite and weight loss, Dr Sundin also noted that that may have been aggravated by intermittent abuse of Duromine and that there was an inconsistency in the defendant’s reports as to that matter. She also noted that Duromine was a psycho-active stimulant and thus a factor to be considered in the history of reported symptoms, along with the defendant’s marijuana abuse. She noted the lack of report of insomnia, but opined that the defendant’s marijuana abuse confounded the importance of that symptom in terms of diagnostic interpretation (although not taken at such a level as to point to intoxication being a relevant issue). Dr Sundin noted periods of agitation, often when driving, feelings of hopelessness and transient thoughts of suicide.

While Dr Sundin rejected a diagnosis of Major Depression, she accepted that there was evidence of it being present after the events. She also with some hesitation accepted, as an alternative to a diagnosis of Adjustment Disorder, one of reactive depression, observing that it was an 'incredibly close call' between the two diagnoses.

Dr Sundin opined that the defendant had a significant personality disturbance with prominent narcissistic and dependent personality traits, but did not consider that there was sufficient longitudinal evidence to permit a diagnosis of a personality disorder. She noted a profound family history of psychiatric disorder, with a significant number of suicides within the family, which she considered to strongly suggest a genetic vulnerability to affective disorders. She observed that while the defendant denied that she had planned her actions, it appeared that once the thought of death occurred to her she felt incapable of resisting the impulse to act upon this thought.

Dr Sundin’s clinical impression in the period prior to the events in question was therefore that the defendant was most likely suffering from an Adjustment Disorder, with mixed disturbance of emotion and conduct, occurring in the context of a disturbed personality structure with prominent features of dependency and narcissism. She considered that the predominantly disturbed emotion was one of anger, with intermittent periods of depressed mood and feelings of anxiety as to residential and Family Court outcomes.

In her report, Dr Sundin opined that, by reason of her Adjustment Disorder and vulnerable personality, the defence of diminished responsibility might be available to the defendant in that her psychological condition was such that her capacity to control her actions was substantially impaired. However, Dr Sundin also conceded in oral evidence that a very prominent feature with the defendant was her 'profound and enduring' fury towards her former husband. When Dr Sundin was asked if the capacity of control (the only capacity she considered to be raised) could have been substantially impaired in the absence of the defendant’s feeling of anger, she said she did not think so and that anger 'was a very important part of the whole that led to substantial impairment'."[26]

  1. The argument advanced in this Court in written submissions on behalf of the appellant focuses upon Dr Sundin's concession that "the defence of diminished responsibility might be available to the [appellant] in that her psychological condition was such that her capacity to control her actions was substantially impaired." The appellant's argument overstates, I think, the support which Dr Sundin's opinion affords to the appellant's case, bearing in mind that Dr Sundin's evidence was that it was the appellant's anger towards her former husband which was critical to the impairment of her capacity to control her actions. 

The advice of the assisting psychiatrists

  1. The MHC also had the benefit of the advice of two assisting psychiatrists, Dr Varghese and Dr McVie.  The MHC summarised the advice of Dr Varghese as follows:

"Dr Varghese noted the diagnosis of Adjustment Disorder favoured by Drs Reddan and Sundin. He advised that Adjustment Disorder is a relatively minor disorder, which is essentially the reaction of a normal individual to abnormal stress or the reaction of an abnormal person to normal stress. He advised that it could not be considered to arise out of arrested or retarded development of mind, nor from inherent factors or disease or injury. He did not therefore consider that it constituted an abnormality of mind for the purposes of s 304A of the Criminal Code and, in any event, considered it unlikely that adjustment disorder of its own could result in substantial impairment of capacity.

Dr Varghese noted that, while the defendant was diagnosed as suffering from Major Depression when seen by Dr Slack, Dr Slack was not aware of the contemporaneous accounts and relied on the defendant’s account of the development of her emotional problems. He also noted that she was more clearly suffering from Major Depression when assessed by Dr Evans. He noted however, that the contemporaneous accounts of her behaviour and functioning in the weeks leading up to the killings were not consistent with the defendant suffering from Major Depression as this disorder is generally conceptualised by psychiatrists. Dr Varghese concluded that it was unlikely that the defendant could have been diagnosed as suffering from Major Depression, using criteria based diagnosis, prior to the events in question.

Nevertheless, he opined that it was probable, given the natural history of Major Depression, that the defendant was in the process of developing Major Depression. He noted that one could conceptualise the state as being an Adjustment Disorder that went on to become Major Depression following the events in question, or as an insidiously developing Major Depression, or as a 'depressive reaction.'

Dr Varghese was inclined, on the balance of probabilities, to view the defendant’s state of mind prior to the index offences as more significant than can be accounted for by Adjustment Disorder. He was drawn to this view principally by the family history of suicide and depression. Dr Varghese’s advice was that it was probable that the defendant’s suicidality was the product of mood disorder, precipitated by the break-up of her relationship and its circumstances, occurring in the context of other issues in her life, and was best understood as 'reactive depression' or a 'depressive disorder not otherwise specified' using DSM-IV.

Dr Varghese advised that prior to DSM-III, psychiatrists frequently used the term endogenous depression to signify a biological illness in contradistinction to reactive depression, which was considered a psychological illness. DSM-III and its successors consolidated endogenous depression and reactive depression into Major Depression and relabelled neurotic depression as Dysthymic Disorder. He advised that the old concept of reactive depression, meaning persistent depressed mood without classical neuro-vegetative symptoms could be seen as embedded within DSM-IV Major Depression.

Dr Varghese’s advice was that 'reactive depression' or 'depressive reaction' constituted an abnormality of mind arising from inherent causes and induced by disease, but that such abnormality would not of itself have caused the defendant to be substantially impaired in any of the capacities.

Dr Varghese noted the significant issues in personality raised by the clinicians and also noted that the discharge diagnosis from Wolston Park Hospital included Borderline Personality Disorder based on the defendant’s observed behaviour in the ward. In Dr Varghese’s opinion, what emerged was a picture of a very disturbed individual, lacking a sense of coherence as to her identity, who has pathological dependence, makes problematic and impulsive relationship decisions, and fails to take responsibility for her actions. As Dr Varghese saw it, for the defendant, having to spend Christmas without her children was a major catastrophe, which was mollified to some extent by her recent relationship with [Mr DH], who had promised to spend Christmas with her. However, when that fell through as a result of the break-up of the relationship, she was again confronted with being alone. She dealt with the enormity of what she had done to her children by blaming her husband for what happened.

Dr Varghese advised that from a clinical point of view, such a disorder of personality would not constitute abnormality of mind. However, he opined that the defendant’s Personality Disorder when accompanied by significant depressed mood (though not necessarily severe depression) would constitute an abnormal emotional state that would amount to abnormality of mind.

Dr Varghese considered it probable, as suggested by counsel for the DPP, that the defendant’s decision to kill herself and the decision to kill the children were taken separately and that her behaviour required a degree of planning. However, his advice to the Court was that the defence of diminished responsibility was available to the defendant. He considered that there was a state of depressed mood, which was most likely a depressive reaction to the circumstances occurring in the context of a disturbed personality. The abnormality of mind, in his view, arose from arrested development of mind; that is, from personality, but also from inherent factors and induced by disease, namely reactive depression. This abnormality of mind gave rise to suicidal intent and with it a decision to kill her children. The decision would have been influenced by how she saw her circumstances at the time, as a consequence of depressed mood, and was over and above ordinary invasive aspects of her character; ie, her personality.

He opined that, even if the defendant first decided to kill the children and then decided to kill herself, an abnormality of mind was present as a result of depressed mood in the context of personality, although, such abnormality would not have been as powerful in influencing behaviour. However, in these circumstances, once she had subsequently made the decision to kill herself, the resulting state of mind would have made it more difficult for her to withdraw from carrying out such a terrible act.

While Dr Varghese advised that the defendant’s state of mind was over and above ordinary invasive aspects of her character, I note that he also appeared to accept, on the basis of the material before the Court, that the defendant’s decision to kill the children, as well as herself, was 'motivated at least in part by a desire to cause her husband’s life to be miserable'.

Dr Varghese considered the only capacity arising for consideration was the defendant’s capacity to know she ought not to do the act and that she was substantially impaired with respect to that capacity."[27]

  1. The effect of Dr Varghese's advice was to cast doubt on the view that the appellant was actually suffering Major Depression at the time of the alleged offences. Dr Varghese also acknowledged the potency of the appellant's anger towards her former husband as an explanation for her conduct. 
  1. The argument advanced on the appellant's behalf seeks to draw upon Dr Varghese's view that the appellant did suffer from an abnormality of mind being an adjustment disorder, which "arose from arrested development of mind; that is, from personality, but also from inherent factors and induced by disease, namely reactive depression" so that her capacity to know that she ought not to attempt to kill her children was substantially impaired. But Dr Varghese's view in this regard was at odds with the view of Dr Reddan and Dr Sundin. Their view was that the impairment relevantly suffered by the appellant was of her capacity to control her actions; Dr Varghese considered that the abnormality of mind which he attributed to the appellant impaired her capacity to know that what she did was wrong, rather than her ability to control her actions.
  1. Dr Varghese's view was not shared by the other assisting psychiatrist, Dr McVie. The advice of Dr McVie was summarised by the MHC in the following terms:

"Dr McVie did not support the finding of diminished responsibility in the present case; she was unable to find clear evidence of an abnormality of mind as described in s 304A of the Criminal Code. Nor did she consider the defendant’s capacity to control her actions (as raised by Drs Reddan and Sundin) to have been substantially impaired by any emotional adjustment to her then psychosocial stresses.

Dr McVie advised that, while a Major Depressive Illness without psychotic features would constitute an abnormality of mind, an Adjustment Disorder of itself would not. However, she was of the view that an Adjustment Disorder in combination with an established Personality Disorder could qualify for an abnormality of mind.

Dr McVie considered that, while the defendant clearly developed depressive symptoms following the deaths of her children and her own attempted suicide, any psychiatric assessment of diagnostic formulations made following the events, particularly the first couple of weeks, was to be considered in the light of the defendant’s serious medical condition, and her knowledge of the outcome of her actions, even though she may not have accepted the loss of her children at that stage, would have impacted on any description she gave of her thinking in the lead up to the events in question. Drs Curtis, Slack, and Evans’ examinations, she noted, occurred in this context.Dr McVie noted that the defendant’s depressive symptoms appeared to have diminished fairly shortly after treatment was commenced on 29 November 2002. She considered that it was less likely that a significant Depressive Disorder was developing prior to 20 November 2002. She observed that the contents of the defendant’s suicide notes lacked any clear depressive content, and that one of the themes to come through was not to let her ex-husband get anything.

Dr McVie accepted that the defendant was subject to significant psychosocial stressors prior to the events and considered the family history of completed suicides to be relevant. She also noted the significant issues of personality and differing clinical opinions on that matter. However, in Dr McVie’s opinion the defendant’s mental state at the time of the events was predominantly that of a normal mind’s reaction to stress; her actions an attempt to regain control over a situation where she felt she was losing. She saw the defendant’s primary emotion as one of anger. She adopted Dr Reddan’s observations that the concept of winning or losing the matters before the Family Court concerning the custody of her children was her priority: she did not want her ex-husband to win. She noted the theme of anger towards her ex-husband was evident from the suicide note to the mother, through to comments recorded in the John Oxley Memorial Hospital file. Dr McVie saw it as significant that when Dr Sundin was asked if the capacity for control could have been substantially impaired without anger, she said she did not think so, and opined that 'anger was an important part of the whole.'

In terms of the actual commission of the events, Dr McVie noted the opinions of Dr Sundin and Dr Reddan that once the idea was formed, the defendant was compelled to act, but observed that the events unfolded over some time and there was clearly some planning involved. She also noted that giving the children sleeping tablets indicated some understanding she ought not follow through on her intentions, as it would hurt her children."[28]

  1. In the appellant's written submissions to this Court, the appellant seeks to attribute to Dr McVie the opinion that: "In terms of the actual commission of the events … [the appellant] was compelled to act." But as is apparent when the last paragraph of the MHC's summary of Dr McVie's evidence is read in full, Dr McVie expressed no such opinion. Dr McVie was at pains to acknowledge the force of the views of Dr Reddan and Dr Sundin, insofar as they differed from her own, and then explained why her views differed.

The MHC's findings

  1. As is readily apparent, the MHC was confronted by a range of differing psychiatric opinions. The MHC summarised the range of opinion as follows:

"I note that the present case was one which resulted in varying diagnostic conclusions from Major Depression Disorder to adjustment disorder, depressive disorder and reactive depression.

While a Major Depressive Disorder may give rise to an abnormality of mind, I note that both assisting psychiatrists advised an Adjustment Disorder would not of itself constitute an abnormality of mind, although when combined with a personality disorder, they considered it might give rise to an abnormality of mind. Dr Varghese extended that proposition to reactive depression or significant depressed mood.

I note that in R v Ford [1972] QWN 5, as a result of expert evidence given in that case by Dr Hurley in respect of the condition of 'depressive reaction' there in issue, the jury were directed to the effect that that condition constituted an abnormality of the mind being induced by disease (see also Re H, Mental Health Tribunal, 19 January 2001). In Re CWB [2003] QMHC 12, Wilson J proceeded on the basis that the defendant’s reactive depression was an adjustment disorder and found that the defendant’s reactive depression arose from inherent vulnerability, and that, in combination with his personality disorder, brought about a substantial impairment of the defendant’s capacity to know he ought not to do the act. See Re GAH [2005] QMHC 11 at [29]. I note however that in Re CWB the assisting psychiatrists both advised that it was significant that there was no element of rage or anger in the killing the subject of the reference: [2003] QMHC 12 at [24].

In Re GMB [2002] QMHT 1, Chesterman J held that personality disorder alone does not constitute an abnormality of mind, a proposition that was not disavowed by the majority in McDermott v The Director of Mental Health; ex parte A-G (Qld) [2007] QCA 51. In McDermott, Holmes J’s decision, that a personality disorder, while not itself amounting to an abnormal state of mind, could be an inherent cause of such a state, was not the subject of challenge on appeal."[29]

  1. There was no criticism by either party of the observations of the MHC set out in the preceding paragraph.
  1. The MHC went on to make findings. First, the MHC recorded a sceptical view of the diagnosis of a Major Depressive Disorder. Her Honour said:

"There is clear evidence that after the events in question, the defendant developed a depressive episode. There were clearly significant stressors operating in the period leading to the index offences, including relationship problems, financial problems, and urgent accommodation problems, and stressors to do with the custody of the children and the fact that the defendant’s ex-husband had been granted permission to have the children over Christmas. I also accept that there were significant issues of personality, which Drs Curtis and Reddan diagnosed in terms of a Personality Disorder.

However, I find it difficult in the present case to be satisfied to the requisite standard that the defendant was suffering from a Major Depressive Disorder of a non-melancholic type. I note the observations of Dr McVie, that the oral evidence of the expert reporters was that the defendant’s depressive symptoms were mild, or, in Dr Curtis’ case, moderate. I note the relevance of the defendant’s genetic history, but as Dr Varghese observed, agreeing with Dr Curtis, the degree of suicidality is not necessarily linked to the severity of depression. Further, as Dr Varghese stated in his advice to the Court, while there were hints of suicidality in the days leading up to events, they were not taken seriously by the observers."[30]

  1. The MHC went on to consider whether an adjustment disorder or a reactive depression, rather than anger and resentment, accounted for the appellant's actions. Her Honour said:

"I am prepared to accept that an adjustment disorder or a reactive depression may, depending on its severity, give rise to an abnormality of mind when combined with a personality disorder. The difficulty that I have in the present case is as to the contributing role of the defendant’s anger and resentment to her state of mind and impairment of capacity, given that emotions such as anger or revenge are not considered valid contributing causes to a state of abnormality of mind.

Both assisting psychiatrists noted the feature of ongoing intense anger by the defendant towards her former husband. It was a continuing theme in relation to the period both preceding and following the relevant events in question, evident in one of the suicide notes, the hospital records and referred to in witness statements. It was the subject of comment by Drs Curtin, Reddan, and Sundin. Notwithstanding Dr Varghese’s advice in relation to the interaction of what he described as the defendant’s reactive depressive condition, personality disorder, and the other stressors as resulting in a state of mind beyond the extremes of common emotions, I note that he also did state that the defendant’s decision to kill the children, as well as herself, 'was motivated at least in part by a desire to cause her husband’s life to be miserable.' I make similar observations in respect of Dr Reddan’s evidence. And in her oral evidence, Dr Sundin stated that she saw the defendant’s anger as a significant factor contributing to the defendant’s impairment of control and the conclusion reached in her report that there was substantial impairment in the capacity to control her actions must be regarded in the light of that oral evidence."[31]

  1. The MHC went on to conclude:

"I note the comments of Thomas J in R v Schafferius [1987] 1 Qd R 381 at 383, as to the standard of proof in proceedings such as the present one being one of proof on the balance of probabilities, but that a finding should be made 'only in reliance on clear and convincing evidence, and upon a firm satisfaction consistent with the gravity of the proceeding.' I also note the comments of the Court of Appeal in Attorney General v Kamali (1999) 106 A Crim R 269 at 273. Ultimately, I find the view put forward by Dr McVie to be a persuasive and cogent one, which I cannot disregard, so as to be satisfied on the balance of probabilities that the defendant was, at the time of the alleged offences, of diminished responsibility. There is a body of evidence and opinion supporting the view that the defendant acted in circumstances where she was, to a significant degree, motivated by anger and resentment towards her husband. I am unable to be satisfied that absent such emotions, the defendant was at the relevant time suffering from a state of abnormality of mind as that term is understood in s 304A. And in any event, on the evidence before me, I am unable to be satisfied that there was a substantial impairment of any of the defendant’s capacities. I reach this conclusion having taken into account that, on Dr Varghese’s advice, the capacity called into question was the defendant’s capacity to know she ought not to do the acts, whereas Drs Reddan and Sundin regarded the relevant capacity to be the capacity for control."[32]

The appellant's arguments

  1. I turn now to a consideration of the arguments advanced in this Court on the appellant's behalf.

An unduly stringent test?

  1. In oral argument in this Court, the appellant focused principally upon the significance attached by the MHC to the appellant's anger towards her former husband. Mr Byrne QC, who appeared with Mr Gordon of Counsel on the appellant's behalf, submitted that the MHC erred in law in discounting the body of psychiatric opinion in favour of a finding of diminished responsibility on the basis of the view attributed to the MHC that, as a matter of law, the appellant's anger was irrelevant to the issue of diminished responsibility. In this regard, Mr Byrne submitted that the MHC erred in following the view to that effect expressed in R v Whitworth.[33]  In R v Whitworth,[34] Thomas J said that:

"It now seems reasonably well established that the law will not recognise the following qualities or states of mind as valid contributing causes to an abnormal state of mind relied on by an accused [who seeks to set up the partial defence under s 304A of the Criminal Code]–

* Intoxication (temporary effects thereof as distinct from enduring damage occasioned thereby …

* Normal propensities or emotions such as prejudice, anger, temper, jealousy, or in general, base natural emotions …"

  1. The view expressed by Thomas J in R v Whitworth reflected that expressed in the earlier case of R v Miers[35] and in the subsequent decision of R v Nielsen.[36]  Mr Byrne submitted that this view of the relevance of anger in relation to diminished responsibility was unduly narrow, and resulted in the MHC's failing to give effect to the preponderance of psychiatric opinion that the appellant's capacities were impaired by an abnormality of mind.  Mr Byrne submitted that, even though anger and resentment may have played a part in the appellant's actions, this anger and resentment served only to intensify the mental impairment deriving from the abnormality of mind diagnosed by Dr Curtis.  Mr Byrne relied upon the decisions of this Court in Re Bromage[37] and Re Pitt[38] as authorities which, he said, destroyed the authority of the statements of Thomas J in R v Whitworth to which the MHC referred. 
  1. The convenient starting point for a discussion of Mr Byrne's argument is his contention as to the preponderance of the psychiatric opinion which the MHC was obliged to consider.

The preponderance of psychiatric opinion?

  1. The first thing to be said here is that the appellant does not seek to argue that the MHC erred in failing to accept the opinions of Dr Curtis and Dr Slack as decisive. On the view which I take of the nature of the appeal from the MHC to this Court, this Court could not uphold such an argument because it cannot be shown that the MHC was wrong to discount the evidence of Dr Curtis and Dr Slack by reason of Dr Slack's concession and the contrary views of both the assisting psychiatrists. Indeed, on any view of the nature of the appeal to this Court, this Court could not act upon the opinions of Dr Curtis and Dr Slack when the MHC declined to do so.[39]
  1. Next it must be said that the argument for the appellant depends upon a view as to the preponderance of psychiatric opinion that did not commend itself to the MHC. As I have noted, the appellant's argument ignores the concession made by Dr Slack in relation to his evidence and that of Dr Curtis. The appellant's notion of the preponderance of psychiatric opinion also requires one to ignore the advice of Dr McVie and the concession made by Dr Sundin as to the crucial role of the appellant's anger at her former husband in explaining her actions.
  1. There was nothing irrational or unreasonable in the MHC's acceptance of the views of Dr McVie. The law does not require the difficult question: "Who shall decide when doctors beg to differ?" to be resolved by a head count of the differing doctors. I am respectfully unable to see how the MHC can be said to have erred in acting upon Dr McVie's advice bearing in mind the conflicting views urged by the other experts.
  1. The advice given by Dr McVie could reasonably be regarded as a basis for declining to act upon opinions which were themselves dependent to a large extent upon the reliability of the appellant as a historian. It was perfectly reasonable that the differences of opinion amongst the psychiatrists who supported the view that the appellant's conduct was explicable by reason of an abnormality of mind which impaired one or more of her capacities should engender scepticism in the MHC as to whether any of their opinions justified a rejection of the available inference that the appellant's actions were explicable by her anger and resentment towards her former husband.
  1. In summary on this point, I consider that it cannot be said that it was unreasonable of the MHC to come to the view that the appellant's anger and resentment towards her former husband were such as to afford a compelling explanation of her actions in November 2002. I would therefore reject the first aspect of Mr Byrne's argument on this point.

The relevance of Re Bromage and Re Pitt

  1. It is convenient now to consider the second aspect of Mr Byrne's argument, viz that the statement of Thomas J in R v Whitworth cited above can no longer stand in light of this Court's decisions in Re Bromage and Re Pitt.  In this regard, it must be said immediately that Re Bromage and Re Pitt were concerned with the extent to which intoxication may be available to set up a defence of unsoundness of mind as a state of mental disease when it operates in combination with other factors.  There are, I think, at least two reasons why these decisions afford little guidance to the determination of this appeal.  The first is that the decisions in Re Bromage and Re Pitt were simply not concerned with the task of determining whether an accused person was of diminished responsibility at the relevant time.
  1. In Re Bromage, McPherson J (as his Honour then was), with whom Moynihan and Byrne JJ agreed, said:

"… the great weight of medical opinion in the case is that the combined effects of the organo-phosphate material and alcohol ingestion was to produce a state of mental disease that at the relevant time deprived the respondent of one or more of the capacities described in s. 27. I have referred to the Tribunal’s specific findings to the effect that at the time of the alleged offence the patient was deprived of those capacities as a result of the addition of alcohol to a mind seriously affected by organo-phosphates. It was those findings that formed the basis of the Tribunal’s decision that the respondent was suffering from 'unsoundness of mind' at the time in question.

 

The Tribunal’s decision is challenged by the appellant on the ground that the respondent’s state of mind was the product, at least in part, of intoxication caused by voluntary ingestion of alcohol; and that the effects of such intoxication should be excluded in deciding under s. 33(1)(a) of the Act whether the respondent was suffering from 'unsoundness of mind'. In considering the respondent’s criminal responsibility for the act that caused the death of Groves it would not be permissible to take account of the disordering of his mind by voluntary intoxication. In relation to diminished responsibility there are decisions in England and Queensland that, in assessing abnormality of mind for that purpose, the jury should disregard the effect of alcohol or drugs: see R. v. Gittens [1984] Q.B. 698; R. v. Nielsen [1990] 2 Qd.R. 578. In relation to insanity the second paragraph of s. 28 expressly precludes consideration of intoxication intentionally caused. The Tribunal distinguished R. v. Gittens on the ground that here the respondent had from past experience no reason to anticipate that ingestion of alcohol would produce the state of mind that resulted partly from the effects of organo-phosphate poisoning of which he was ignorant. On behalf of the respondent Mr Herbert of counsel sought to support this conclusion on the basis that his client had not by his drinking on 27 December 1987 intentionally caused himself to become intoxicated to anything like the extent that followed; it was, he said, a result that could not have been foreseen because of the organo-phosphates, and was consequently not caused intentionally.

 

In my respectful opinion this approach to the matter does not address the point at issue. The question for the Tribunal is, as I have previously said, not whether a person in the position of the respondent is criminally responsible for the act or omission giving rise to the alleged offence. The Tribunal is not designed as a substitute for a jury at a criminal trial. Its sole function is to determine whether at the time of the alleged offence the 'patient' was suffering from unsoundness of mind as defined. The Tribunal is, as I have already pointed out, not even charged with the duty of determining whether such unsoundness of mind had any relation to the act or omission leading to the alleged offence. Much less is it fixed with the task of deciding whether the patient in fact did the act or made the omission, without which no offence could be found to have been committed.

 

The fundamental feature of the Mental Health Services Act [sic] is that the provisions relevant here, and in particular s. 33(1)(a), introduce into the legal system a quite novel regime, under which the Tribunal is expected to reach a decision that is independent of conceptions of criminal responsibility as defined in Ch. V of The Criminal Code. The provisions of the Chapter are relevant to such a decision only to the extent that they are adopted by the Act. The only relevant instance of such adoption is in s. 28A of the Act, which ascribes to the expression 'unsoundness of mind' the meaning given by the Code to that state of mental disease or natural mental infirmity described in s. 27. As I have said, a consequence of so incorporating it is that decisions expounding those meanings under s. 27 of the Code are for the most part definitive for the purpose of s. 28A of the Act. For example, what was said by Philp J. in Dearnley v. The King suggests that delirium tremens may constitute a state of mental disease under s. 27 even though it is traceable to voluntary consumption of alcohol. But, except where they are explicitly or implicitly imported into the inquiry or determination required by s. 33(1)(a) of the Act, it would be wrong to assume that other provisions or conceptions of Ch. V of the Code are also incorporated. Among the provisions not explicitly so adopted are those in s. 28 concerning the non-exculpatory consequences of intoxication intentionally caused.

 

The result is, it seems to me, that in performing its function under s. 33(1)(a), the Tribunal is required to decide whether the patient’s state of mind at the particular time in question answers the description of mental disease or natural mental infirmity in s. 27 of the Code. In approaching that task it is to be borne in mind that the Code differentiates between such a state or condition and one that is nothing more than a mind disordered by intoxication or stupefaction by drugs or intoxicating liquor or by any other means. Such a disorder is outside the conception of mental disease described in s 27. On the other hand, that conception in s. 27 does not affirmatively exclude consideration of the impact on an existing state of mental disease of intoxication intentionally caused. Section 28 does so, but that is a matter relevant to notions of criminal responsibility under Ch. V, with which the Tribunal is not concerned."[40]

  1. It may be noted here that the effect of the actual decision in Re Bromage was countered by legislative amendment:  the current definition of "unsound mind" in Sch 2 of the Act reflects that legislative response.  The point of present relevance made by McPherson J in this passage is that the function of the Tribunal under the section of the Mental Health Act 1974 (Qld), which was the analogue of s 267(1)(a) of the Act, did not require consideration of whether there was a causal relationship between the state of unsoundness of mind and the alleged offence:  all that was required to be determined was whether the unsoundness of mind was present when the alleged offence was committed.  That is quite a different task from the task of deciding pursuant to s 267(1)(b) of the Act whether an accused person is of diminished responsibility when the alleged murder was committed.  The latter task necessarily involves a consideration of whether there was a causal relationship between the abnormality of mind and the impairment of capacity which renders the unlawful killing the subject of the charge manslaughter rather than murder.  It is because of the substantial impairment of capacity produced by the abnormality of mind that an accused person is not fully responsible for an unlawful killing by reason of s 304A of the Criminal Code.  That is so for the purposes of a criminal trial and for the purposes of a determination pursuant to s 267(1)(b) of the Act whether the accused has unlawfully killed a person while deprived of the full capacity essential to criminal responsibility for what would otherwise be the crime of murder.
  1. In Re Pitt,[41] de Jersey CJ and Davies JA gave something less than wholehearted approval of the approach taken by McPherson J in Re Bromage.  More importantly for present purposes, it is clear from their Honours' reasons that their Honours did not express disapproval of anything said in R v Whitworth.  Their Honours said:

"In the present case the learned judge constituting the Tribunal held, in effect, that Bromage applied only to the case in which the state of mental disease or natural mental infirmity was caused, in part, by the voluntary ingestion of alcohol. It did not apply, he held, where deprivation of any of the capacities to understand, to control or to know, referred to in s 27 of the Criminal Code, was, but the state of mental disease or natural mental infirmity was not, caused by voluntary ingestion of alcohol. This was a case, his Honour held, in which the appellant's capacity to know that she ought not to do the act was, but her natural mental infirmity was not, caused in part by her voluntary ingestion of alcohol. And he held that her natural mental infirmity alone did not deprive her of that capacity. Consequently he held that the appellant was not of unsound mind at the time of commission of the alleged offence. It was this process of reasoning which the appellant contended was wrong and led his Honour to that erroneous conclusion.

Bromage was concerned with mental disease rather than, as in this case, natural mental infirmity. As a matter of English usage it may be easier to say that the voluntary ingestion of alcohol contributed to a mental disease than it would be to say that it contributed to a natural mental infirmity, the latter phrase, because of the word 'natural', being more consistent with something having a genetic cause than with one caused, even in part, by some external influence. But, as we shall demonstrate shortly, Dr Fama, whose evidence his Honour accepted, appeared to conclude that consumption of alcohol contributed to the appellant's natural mental infirmity.

It is true that there are passages in the principal judgment in Bromage which would permit the making of the distinction which the learned judge made here. For example it was said there that:

'... the great weight of medical opinion in the case is that the combined effects of the organo-phosphate material and alcohol ingestion was to produce a state of mental disease that at the relevant time deprived the respondent of one or more of the capacities described in s 27.'

Looked at in isolation such a passage might be thought to be distinguishing a cause of the disease from a factor contributing to its consequences. However his Honour had earlier noted that the finding of the Tribunal in that case was:

'... that the effect of the respondent's consumption of alcohol was not to create the mental disease from which the respondent had suffered at the relevant time but to intensify the effect of the existing disease'.

The judgment in Bromage did not therefore make the rather fine and, as it seems to us, semantic distinction which his Honour made in this case. Nor did any of the many cases which have followed it, make that distinction.

That the distinction which his Honour made in the present case is more likely to be a semantic than either a legal or medical one may be illustrated by the way in which Doctors Fama and Kingswell, both of whom his Honour accepted in this respect, expressed their opinions on this question in the present case. Dr Fama said:

'I think she has an impairment. I think when she was drinking and when the homicide occurred she was then suffering from a natural mental infirmity which is a combination of her natural impairment aggravated by alcohol which robbed her of more – in effect more IQ points than she could afford to lose ...'.

Dr Kingswell said:

'... I thought that Ms Pitt's intoxication combined with her natural mental infirmity deprived her of the capacity to understand that she ought not to do the act.'

If his Honour's distinction were adopted it might be thought that Dr Fama was adopting the view that the appellant's natural mental infirmity was caused in part by voluntary ingestion of alcohol whereas Dr Kingswell was of the view that the alcohol contributed only to the deprivation of the relevant capacity. It is more likely, however, that they were saying the same thing, namely that the voluntary consumption of alcohol by the appellant intensified the effect of the natural mental infirmity, a conclusion similar to the finding made in Bromage. It is of some significance in this respect that Dr Fama, but not Dr Kingswell explained the mechanism by which this occurred, that is that the combination of her pre-existing condition and the consumption of alcohol deprived her of more IQ points than she could afford to lose. There is nothing in Dr Kingswell's evidence which would suggest any disagreement with this mechanism.

The application of Bromage to the facts of any particular case is not always easy and in the present case the learned judge had a particularly difficult task. But the distinction which he made, though plainly an arguable one, is likely in many cases to lead to uncertainty as the illustration from the evidence of Doctors Fama and Kingswell shows. Moreover it is not one which has been adopted in Bromage or any of the many cases which have followed it. The contrary view, that there is no such distinction, is one which is plainly open and, for the reasons mentioned, should be followed here. In our opinion his Honour should have concluded that the voluntary consumption of alcohol by the appellant intensified the effect of her natural mental infirmity depriving her of the capacity to know that she ought not to do the act. He ought therefore to have concluded that the appellant was of unsound mind at the time the alleged offence was committed."

  1. In Re Pitt, Thomas J expressed views which suggest that he saw the decision in Re Bromage as inconsistent with the approach in R v Whitworth.  It is apparent that Thomas J was clearly of the view that the task of the Tribunal under the Mental Health Act 1974 in relation to unsoundness of mind did indeed involve a consideration of a causal, as opposed to merely a temporal, relationship between unsoundness of mind and the actions involved in an alleged offence.  Thomas J said:

"The tribunal's function is governed by the Mental Health Act 1974 and in particular by Part 4 which deals with 'patients' who are concerned in criminal and like proceedings. Section 33 of the Act required the tribunal to inquire and determine whether the appellant was suffering from unsoundness of mind at the time the alleged offence of murder was committed. The tribunal was also required, in the event that it found that she was not suffering from unsoundness of mind, to inquire and determine whether she was at the time suffering from diminished responsibility, and also whether she was fit for trial (Section 33(1)(b) and 33(1)(c)).

The effect of Bromage has been countered, at least with respect to offences allegedly committed after 1 July 1997, by the Criminal Law Amendment Act 1997. That Act amended the definition of 'unsoundness of mind' in the Mental Health Act by expressly excluding any state of mind resulting from intentional intoxication from the concept of 'unsoundness of mind'. The present appellant however is not subject to the amended definition as the alleged offence occurred on 11 February 1996, that is to say before the amendment took effect.

Counsel for the respondent did not contend that Bromage was wrongly decided or that this court should decline to follow it. He confined his argument to supporting the manner in which the tribunal in this case understandably endeavoured to distinguish its application. However I agree with the reasons given in the joint judgment of the Chief Justice and Davies JA for holding that such a distinction is not available.

I am therefore bound to apply Bromage to the present case, despite concern that it fails to give effect to s 28 of the Mental Health Act and that it requires the tribunal to act on principles contrary to well-established notions of criminal responsibility such as those formulated in R v Whitworth ([1989] 1 Qd R 437) and R v Nielsen ([1990] 2 Qd R 578). An inevitable consequence of this is that some persons who cannot establish insanity under ordinary principles of criminal law will succeed in doing so if brought before the tribunal. The present case, on the evidence, is such a case. However, in the absence of any submission that Bromage should be overruled, the above observations are my expression of concern at the undesirable results that flow from it, and an explanation of my reluctance to reach the present result.

In the circumstances then I consider that I have no option other than to apply Bromage, and to agree with the order proposed by the Chief Justice and Davies JA."[42]

  1. In my respectful opinion, there is considerable force in the view of Thomas J that it is unlikely that the legislature intended that different tests should be applied to the determination of criminal responsibility at a criminal trial, where unsoundness of mind is raised by the defence, and the determination under the Mental Health Act 1974 or its analogues as to whether an accused person was of unsound mind when he or she committed unlawful acts.  Indeed, in Re Bromage, McPherson J himself seemed to acknowledge that the conclusion to which he was driven by the language of the Mental Health Act was somewhat anomalous.  But whether or not it is correct to regard the approach in Re Bromage as giving rise to an anomaly, any such anomaly should not be extended to affect the determination by the MHC of whether an accused person is entitled to a partial defence of diminished responsibility – unless, of course, the language of the Act compels that result.  In my respectful opinion, the language of the Act does not compel that result. 
  1. In this regard, it is noteworthy that nothing in Re Bromage or Re Pitt expressed any doubt as to the proposition stated in R v Whitworth that normal propensities or emotions such as anger and resentment are not abnormalities of mind or valid contributors to an abnormality of mind for the purposes of s 304A of the Criminal Code.  And diminished responsibility is a concept which necessarily involves an issue as to causative, rather than merely temporal, connection between an accused's actions and his or her mental state.  As I have said, a consideration of whether an accused person was of diminished responsibility pursuant to s 267(1)(b) of the Act necessarily requires attention to whether an abnormality of mind has adversely affected the capacities essential to the full responsibility of that person under the criminal law.  For the purposes of s 267(1)(b) of the Act, an accused person cannot be said to have been "of diminished responsibility" when the alleged murder was committed unless that person's capacity for full criminal responsibility was substantially impaired by an abnormality of mind.
  1. That having been said, the circumstances which engage s 304A of the Criminal Code will usually, though not invariably, include anger on the part of the accused.  It is obvious that, in R v Whitworth, Thomas J was not saying that the partial defence afforded by s 304A will not be available merely because the accused person acted while angry.  If the accused's capacity to act with full responsibility was, in truth, diminished by an impairment of mind, then the circumstance that the accused was angry when he or she killed his or her victim will not deny the operation of s 304A of the Criminal Code.  When Thomas J said that an ordinary emotion such as anger could not be regarded as an abnormality of mind for the purposes of s 304A of the Criminal Code, he was saying no more than that an angry reaction to adverse external circumstances could not be so regarded.  In my respectful opinion, nothing in Re Bromage or Re Pitt supports a contrary view. 
  1. At this point, one comes to a further difficulty with this aspect of Mr Byrne's argument. Mr Byrne's argument treats "anger" as substitutable for "intoxication" in the discussion in Re Bromage and Re Pitt.  On this basis, Mr Byrne argues that the MHC should have concluded, on the evidence, that the appellant's anger towards her former husband merely intensified the effect of a "natural mental infirmity" impairing the appellant's relevant capacities. 
  1. It is not as easy as Mr Byrne would have it to effect a neat substitution of "anger" for "intoxication" as an abnormality of mind in a discussion about the composite concept of diminished responsibility. Anger may itself be a sufficient explanation of action resulting in the killing of a person in the sense that it cannot be said that the killing resulted from an impairment of capacity caused by an abnormality of mind. Or anger may be a deeply ingrained aspect of a true abnormality of mind. Or anger may, in combination with a true abnormality of mind, produce an impairment of one or more of the relevant capacities. Which of these senses is relevant in any particular case will depend upon the evidence.
  1. In my respectful opinion, in R v Whitworth Thomas J was not concerned to exclude from the scope of a defence of diminished responsibility those cases where the evidence shows that an angry reaction of the accused which resulted in an unlawful killing was itself symptomatic of an abnormality of mind or that the condition of mind of the accused person was abnormal because of the presence of a deep-seated anger which was itself part of that condition of mind.  Thomas J was, I think, speaking of anger which is a sufficient explanation for the action which resulted in the killing; and that was the sense with which the MHC was concerned in this case because of the view which her Honour took of the evidence.

The attack upon the MHC's conclusions

  1. It may be tempting to conclude that the killing of young children by their mother can only be understood in terms of an abnormality of mind, but it is important to bear steadily in mind that diminished responsibility is a composite concept which involves the substantial impairment of one of the capacities identified in s 304A of the Criminal Code by an abnormality of mind.  Whether diminished responsibility is made out in any given case may depend upon a close examination of the evidence and a fine judgment as to whether the killing resulted from the substantial impairment of a relevant capacity by an abnormality of mind or whether it was the consequence of an angry reaction to adverse circumstances.  As Thomas J said in R v Whitworth:[43]

"[i]t would be quite wrong to assume that the defence will be allowed to go to the jury whenever some doctor or other expert can be found who will give the defence his 'blessing', or simply assert that at the time the accused's capacity to control his actions was substantially impaired."

  1. On a fair reading of the reasons of the MHC, it is, I think, clear that her Honour was focusing upon the possibility that the appellant's alleged killing of her children was more probably than not to be understood as an act of revenge by the appellant. That possibility reflected a view of the case which was open on the evidence: it was directly supported by the advice of Dr McVie, and the concession by Dr Sundin.
  1. The competing view was that the appellant's alleged killing of her children was explicable as a result of an impairment of capacity which could reasonably be attributed to an abnormality of mind of the appellant. The concession made by Dr Slack and the advice of Dr Varghese to which I have referred was apt to lessen the cogency of this hypothesis advanced by Dr Curtis and, initially, by Dr Slack. 
  1. It is, in my respectful opinion, impossible to say that the MHC erred in concluding that it was more probable than not that the appellant's actions were an act of revenge targeted at her former husband. It would be quite wrong to conclude that the MHC proceeded on the footing that the approach of Thomas J in R v Whitworth obliged her to conclude that a case is excluded from the scope of the partial defence of diminished responsibility where the evidence shows that an angry reaction by an accused, which proved fatal to another person, was itself a symptom of an abnormal mind or that the accused suffered from an abnormality of mind an integral aspect of which was a deep-seated and abiding anger on the part of the accused and which was manifest in the actions which led to the unlawful killing.  On the view which the MHC took of the evidence, these possible explanations of the appellant's conduct were not established.
  1. When the MHC said that "the difficulty … in the present case is as to the contributing role of the defendant's anger and resentment to her state of mind and impairment of capacity, given that emotions such as anger or revenge are not considered valid contributing causes to a state of abnormality of mind", her Honour was speaking of anger and resentment as emotions which could, of themselves, account for the appellant's actions. That this is so is also apparent from the next paragraph of her Honour's reasons.[44]  In light of the evidence summarised by her Honour in that paragraph, the MHC was simply not persuaded on the balance of probabilities that the appellant's actions were not explained by anger and resentment rather than by one or other of the different kinds of abnormality of mind propounded by some of the psychiatrists. 

The sufficiency of the evidence of the appellant's abnormality of mind

  1. The appellant argues under its second ground of appeal that the MHC erred in law in approaching the evaluation of the range of psychiatric opinion on the conservative basis stated by Thomas JA in R v Schafferius,[45] that  approach having been, it was said, deprecated by this Court in A-G (Qld) v Kamali.[46]  In the latter case, it was said:

"The second ground of appeal is that the finding of unsoundness of mind was against the weight of the evidence. Mr Byrne QC, who appeared for the appellant Attorney, conceded that there was evidence on which the finding could be based. There plainly was, as to lack of capacity to control in the evidence of Professor Yellowlees, and as to deprivation of the capacity to know that he ought not to do the act, in the evidence of Dr Varghese. But in light of the suggested qualification of those views emerging from cross-examination, and in the context of differences of opinion between those two doctors and with Dr Fama, Mr Byrne submitted that there was no 'clear and convincing evidence' (Schafferius [1987] 1 Qd R 381 at 383) sufficient to base the finding of unsoundness of mind. The standard of proof in these matters is on the balance of probabilities with the Briginshaw qualification (Briginshaw v Briginshaw (1938) 60 CLR 336), as confirmed in Schafferius. Schafferius should not be read as excluding a finding in all but the clearest of cases. Certainly the gravity of such proceedings warrants the Tribunal's exercising caution. But if the judge constituting the Tribunal is sufficiently satisfied that there is evidence which, if accepted, would warrant the finding, and believes that the evidence should be accepted, then the finding should be made, notwithstanding that there may be other contrary evidence in the case which the judge is disinclined to accept."

  1. The first point to be made here is that this Court in A-G (Qld) v Kamali did not deny that the cautious approach suggested in R v Schafferius was the correct approach.  The MHC did not err in approaching its fact finding function by searching for clear and convincing evidence of the direction in which the balance of probabilities tilted. 
  1. In the present case, the MHC did not decline to make a finding of diminished responsibility because of a concern that the evidence adduced in relation to that question was such that she could not responsibly come to a firm view one way or the other. The MHC made its findings on the balance of probabilities having regard to all of the evidence and taking into account the advice of the assisting psychiatrists.
  1. The MHC's scepticism of the appellant was perfectly reasonable: the inference that the appellant committed the offences in an angry rage against her former husband was plainly available as an explanation of her actions. This Court is not in a position to say that the MHC erred in holding that this inference was more probable than an inference of diminished responsibility.

The sufficiency of the evidence of impairment of the relevant capacities

  1. The appellant argues that the MHC erred in having regard to the divergence of psychiatric opinion as to which of the appellant's relevant capacities was substantially impaired in reaching the conclusion that there was no substantial impairment of any of the capacities relevant for the purposes of determining whether the appellant was of diminished responsibility.
  1. In this regard, the appellant relies upon the statement of Williams JA in McDermott v The Director of Mental Health; ex parte A-G (Qld):[47]  "… the court does not have to identify one capacity rather than another in order to arrive at that conclusion [ie that there has been a substantial impairment of one of the capacities]."
  1. The appellant also relies upon the statement by Jerrard JA in McDermott's Case[48] that:

"… The Mental Health Court was required to decide if Mr McDermott was of diminished responsibility when he stabbed his father, not which capacity or capacities were substantially diminished …"

  1. The appellant's submission, as articulated in the written outline filed on her behalf, was that "there was consistent acknowledgment of 'substantial impairment' by the various psychiatrists. To the extent that her Honour rejected their evidence on this point due to issues of categorisation, the decision was made in error." I would reject that submission.
  1. On a fair reading of the MHC's decision, it is clear that the MHC did not decline to find a substantial impairment of any relevant capacity because of a difficulty in allocating the impaired capacity to one of the three legal categories. It is apparent from the MHC's reasons that the MHC was sceptical as to whether there was a substantial impairment of any of the relevant capacities. 
  1. The divergence of opinion among those psychiatrists who accepted that the appellant was suffering from an abnormality of mind at the relevant time supported that scepticism. For example, the view taken by Dr Varghese was that the appellant had not acted impulsively so that the relevant impairment was the capacity to know that what she proceeded to do was wrong. Dr Reddan, on the other hand, seemed to be prepared to accept that the appellant acted impulsively because of an impairment of the capacity to control her actions.
  1. The MHC did not decline to find that there was any relevant impairment of capacity because of a difficulty in categorising the impairment. Rather, because of the multiplicity and contradictory nature of the categorisations proposed by the psychiatrists, the MHC could not be satisfied on the balance of probabilities that any relevant capacity had been impaired.

Conclusion and order

  1. In my respectful opinion, the appellant has failed to demonstrate that the decision of the MHC was affected by error.
  1. The appeal should be dismissed.
  1. HOLMES JA:  I have had the advantage of reading the draft judgment of  Keane JA.  I agree with him, for the reasons he has given, that the right of appeal from the Mental Health Court to this Court created by s 334 of the Mental Health Act 2000 (Qld) is a right of appeal in the strict sense.  I agree, too, with his analysis of R v Whitworth and of the significance of anger, in the different senses he has described, in considering whether a defence of diminished responsibility is available. 
  1. In the appellant’s submissions that the Mental Health Court disregarded the preponderance of the psychiatric evidence, there was, I think, something of a tendency to discuss the advice of the assisting psychiatrists as if it were part of the evidence in the case.  That, of course, is not so; the advice given serves a limited and specified function,[49] and those giving it are in no respect treated as witnesses: they are not sworn or subject to the challenges of cross-examination.  I have some concern that aspects of the advice of both assisting psychiatrists in this case more closely resembled clinical evidence than advice on the meaning and significance of clinical evidence given.  But the boundary is not an easy one to draw; and the complaint of the appellant was not that the advice offered by Dr Varghese and Dr McVie trespassed beyond the limits of their function, but, in effect, that the advice of Dr Varghese was not preferred.
  1. The learned judge constituting the Mental Health Court analysed the evidence, and with the assistance of Dr McVie’s advice drew an inference which was open on the evidence, that anger rather than abnormality of mind was the driving force behind the offences.  I agree with Keane JA, for the reasons he has given, that no error has been shown in the learned judge’s approach in drawing that inference and in concluding that there was no substantial impairment of any relevant capacity; and I agree that the appeal should be dismissed.
  1. FRASER JA: I agree with the order proposed by Keane JA and with his Honour’s reasons for that order.

Footnotes

[1] (2000) 203 CLR 172 at 180 [22] – [23] and 187 [44].

[2] (2003) 214 CLR 118 at 129 [32].

[3] South Australian Land Mortgage and Agency Co Ltd v The King (1922) 30 CLR 523 at 533; Fox v Percy (2003) 214 CLR 118 at 124 – 125 [20].

[4] Logan v Woongarra Shire Council [1983] 2 Qd R 689 at 691.

[5] In Werribee Council v Kerr ((1928) 42 CLR 1 at 20), Isaacs J explained in relation to a right of appeal strictly so-called, that where the material before the appellate court is not as complete as before the primary court, the decision appealed from must "be clearly shown to be wrong before another view is taken".  His Honour was in dissent in that case, but his views on this point were not disputed by the other members of the Court, and were referred to with evident approval by Dixon J in Victorian Stevedoring and General Contracting Co Pty Ltd and Meakes v Dignan ((1931) 46 CLR 73 at 110).  In this case, the advantage of discussion with the assisting psychiatrists is, I think, a clear example of a material advantage which obliges this Court to intervene only where the decision below is clearly shown to be wrong.  Cases where the determination of issues involves special knowledge outside the range of ordinary human experience afford another example.  (Cf S S Hontestroom v S S Sagaporack ([1927] AC 37 at 49); Federal Commissioner of Taxation v Clarke ((1927) 40 CLR 246 at 265 – 266.)

[6] (1931) 46 CLR 73 at 109.

[7] Cf R v Ferguson; ex parte A-G (Qld) [2008] QCA 227 at [20] – [21].

[8] Fox v Percy (2003) 214 CLR 118 at 125 – 128 [23] – [28]; cf Victorian Stevedoring and General Contracting Co Pty Ltd and Meakes v Dignan (1931) 46 CLR 73 at 107 and 113; Da Costa v Cockburn Salvage & Trading Pty Ltd (1970) 124 CLR 192 at 208 – 209.

[9] [2006] QCA 396 at [11].

[10] (1999) 106 A Crim R 269 at 270.

[11] [2005] QCA 67.

[12] [2007] QCA 51 at [3], [34] and [74].

[13] (1999) 106 A Crim R 269 at 270 [2].

[14] Nguyen v Nguyen (1990) 169 CLR 245 at 250 and 269 – 270.

[15] [2005] QCA 67.

[16] [2005] QCA 67 at [2].

[17] [2005] QCA 67 at [41] – [44].

[18] [2005] QCA 67 at [36] – [38].

[19] Cf Fox v Percy (2003) 214 CLR 118 at 129 [32]; Hoyts Pty Ltd v Burns (2003) 77 ALJR 1934 at 1942 – 1943 [49] – [52].

[20] Re DAR, unreported, Mental Health Court, Qld, No 0254 of 2006, 29 February 2008 at [2] – [3].

[21] Re DAR, unreported, Mental Health Court, Qld, No 0254 of 2006, 29 February 2008 at [5] – [6].

[22] Re DAR, unreported, Mental Health Court, Qld, No 0254 of 2006, 29 February 2008 at [7].

[23] Re DAR, unreported, Mental Health Court, Qld, No 0254 of 2006, 29 February 2008 at [10] – [13].

[24] Re DAR, unreported, Mental Health Court, Qld, No 0254 of 2006, 29 February 2008 at [14] – [21].

[25] Re DAR, unreported, Mental Health Court, Qld, No 0254 of 2006, 29 February 2008 at [22] – [28].

[26] Re DAR, unreported, Mental Health Court, Qld, No 0254 of 2006, 29 February 2008 at [29] – [35].

[27] Re DAR, unreported, Mental Health Court, Qld, No 0254 of 2006, 29 February 2008 at [49] – [60].

[28] Re DAR, unreported, Mental Health Court, Qld, No 0254 of 2006, 29 February 2008 at [61] – [65].

[29] Re DAR, unreported, Mental Health Court, Qld, No 0254 of 2006, 29 February 2008 at [66] – [69].

[30] Re DAR, unreported, Mental Health Court, Qld, No 0254 of 2006, 29 February 2008 at [70] – [71].

[31] Re DAR, unreported, Mental Health Court, Qld, No 0254 of 2006, 29 February 2008 at [72] – [73].

[32] Re DAR, unreported, Mental Health Court, Qld, No 0254 of 2006, 29 February 2008 at [74].

[33] [1989] 1 Qd R 437 at 445 – 446.

[34] [1989] 1 Qd R 437 at 445 – 446.

[35] [1985] 2 Qd R 138 at 142.

[36] [1990] 2 Qd R 578 at 582 – 583.

[37] [1991] 1 Qd R 1 esp at 10 – 11.

[38] [2000] QCA 30.

[39] Abalos v Australian Postal Commission (1990) 171 CLR 167 at 178 – 179.

[40] [1991] 1 Qd R 1 at 10 – 11.

[41] [2000] QCA 30 at [4] – [9].

[42] [2000] QCA 30 at [15] – [19] (citations footnoted in original).

[43] [1989] 1 Qd R 437 at 446.

[44] See above at [55].

[45] [1987] 1 Qd R 381 at 383.

[46] (1999) 106 A Crim R 269 at 273 [9].

[47] [2007] QCA 51 at [29].

[48] [2007] QCA 51 at [68].

[49] Section 389 (1) of the Mental Health Act identifies the functions of an assisting psychiatrist, of which the one relevant in the context of the hearing of a reference to decide on unsoundness of mind or diminished responsibility is, to “assist the court by advising it … on the meaning and significance of clinical evidence”.

Close

Editorial Notes

  • Published Case Name:

    DAR v DPP (Qld) & Anor

  • Shortened Case Name:

    DAR v DPP (Qld)

  • MNC:

    [2008] QCA 309

  • Court:

    QCA

  • Judge(s):

    Keane JA, Holmes JA, Fraser JA

  • Date:

    03 Oct 2008

  • White Star Case:

    Yes

Litigation History

No Litigation History

Appeal Status

No Status