Re Pitt[2000] QCA 30

SUPREME COURT OF QUEENSLAND

1. [1]
   de JERSEY CJ and DAVIES JA:  This is an appeal against a decision of the Mental Health Tribunal on 12 July 1999 that proceedings against the appellant be continued according to law in respect of, essentially, a charge of murder.  The Tribunal found that on 11 February 1996 when the alleged murder was committed, the appellant was not suffering from unsoundness of mind and that she was not suffering from diminished responsibility within the meaning of s 33 of the Mental Health Act 1974;  and it found that she was fit for trial.  The appeal is, in effect, against those findings.  It is on three grounds.  They are that:

   1. in respect of the alleged offence of murder on 11 February 1996, the learned judge constituting the Mental Health Tribunal erred in determining the principles of law applicable to the facts of the case, and in particular to the expert evidence which his Honour accepted.  As a result of the error of law, the learned judge erred in finding that at the time of the alleged offence the appellant was not suffering from unsoundness of mind, or in the alternative that the appellant was not suffering from diminished responsibility, within the meaning of s 33 of the Mental Health Act 1974;
   2. the findings of the learned judge that, at the time of the alleged offence of murder on 11 February 1996, the appellant was not suffering from unsoundness of mind, and in the alternative was not suffering from diminished responsibility, were against the weight of the expert evidence;
   3. the finding of the learned judge that the appellant is fit for trial was against the weight of the expert evidence.
2. [2]
   As it was argued, the first of these grounds relates only to the question whether, at the time when the alleged offence was committed, the appellant was of unsound mind.  In particular, it concerns the application of the decision of the Court of Criminal Appeal in Re Bromage^[1] to the facts of this case, it being common ground that this case must be decided on the Mental Health Act 1974 in the form in which it was prior to the 1997 amendments.  In that form of the Act "unsoundness of mind" was defined in s 28A to mean that state of mental disease or natural mental infirmity described in s 27 of the Criminal Code.  The state of mental disease or natural mental infirmity described in s 27 of the Criminal Code is one such as to deprive the person of capacity to understand what the person is doing, or capacity to control the person's actions, or capacity to know that the person ought not to do the act or make the omission.
3. [3]
   The court in Bromage held that, in determining whether, at the relevant time, a person was suffering from unsoundness of mind as defined in s 28A, it was legitimate for the Tribunal to take into account the effect of voluntary ingestion of alcohol;  in other words that that definition did not incorporate the limitation in that respect contained in s 28(2) of the Criminal Code.
4. [4]
   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.
5. [5]
   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.
6. [6]
   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."^[2]

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^[3] 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.

7. [7]
   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."

8. [8]
   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.
9. [9]
   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.
10. [10]
    In view of that conclusion it is unnecessary to consider whether the appellant was of diminished responsibility on 11 February 1996 or whether she was fit for trial.^[4]
11. [11]
    We would therefore allow the appeal, find that the appellant was of unsound mind at the time the alleged offences were committed on 11 February 1996 and order the appellant to be detained as a restricted patient in a security patients' hospital or in another hospital.  Pursuant to s 43D of the Mental Health Act 1974 a report of this decision shall not be published except in so far as it is necessary to do so to give effect to this Act until the expiration of 28 days from the date of this decision.
12. [12]
    THOMAS JA:  The appellant was charged with murdering Jack Cooper on 11 February 1996, and with committing another offence in 1998.  On the application of

her solicitor the matter of her mental condition was referred to the Mental Health Tribunal for its consideration and determination under Part 4 of the Mental Health Act 1974.

13. [13]
    The tribunal found that the appellant was not suffering from unsoundness of mind or from diminished responsibility on 11 February 1996, and that she is now fit for trial.
14. [14]
    The above findings are challenged.  It is said that the evidence required a finding that her natural mental infirmity in combination with her intoxication were sufficient to deprive her of the capacity to know that she ought not to kill Mr Cooper, and that the tribunal was therefore bound to find that she was of unsound mind at the time.  It is of course well established in the criminal law that the effect of such intoxication should not be taken into account in determining whether defences of insanity or diminished responsibility are made out.^[5] The appellant however relies upon the decision of the Full Court in Re Bromage^[6] which holds that the tribunal is to make its findings upon principles different from those contained in Part V of the Criminal Code.  Under Bromage the effects of voluntary intoxication on the mind at the material time may be taken into account.
15. [15]
    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^[7].
16. [16]
    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.
17. [17]
    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.
18. [18]
    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^[8] and R v Nielsen^[9]. 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.

19. [19]
    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.