SCN v Director of Public Prosecutions
[2016] QCA 237
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- Notable Unreported Decision
- Appeal Determined - Special Leave Refused (HCA)
- SCN v Director of Public Prosecutions[2016] QCA 237
- Add to List
SCN v Director of Public Prosecutions[2016] QCA 237
SCN v Director of Public Prosecutions[2016] QCA 237
SUPREME COURT OF QUEENSLAND
CITATION: | SCN v Director of Public Prosecutions (Qld) & Anor [2016] QCA 237 |
PARTIES: | SCN |
FILE NO/S: | Appeal No 10164 of 2015 QMHC No 22 of 2014 |
DIVISION: | Court of Appeal |
PROCEEDING: | General Civil Appeal |
ORIGINATING COURT: | Mental Health Court at Brisbane – [2015] QMHC 8 |
DELIVERED ON: | 16 September 2016 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 12 April 2016 |
JUDGES: | Margaret McMurdo P and Gotterson and Morrison JJA Separate reasons for judgment of each member of the Court, each concurring as to the order made |
ORDER: | Appeal dismissed. |
CATCHWORDS: | CRIMINAL LAW – GENERAL MATTERS – CRIMINAL LIABILITY AND CAPACITY – DEFENCE MATTERS – INSANITY AND MENTAL IMPAIRMENT – DISEASE OF THE MIND, MENTAL DISEASE OR MENTAL INFIRMITY – where the appellant was charged with two counts of unlawful stalking with violence – where the appellant was diagnosed with Delusional Disorder (Erotomanic Type) – where the Mental Health Court found that the appellant was not of unsound mind at the time of the offending – where the appellant contends the primary judge erred in finding that intoxication contributed to the appellant’s reasoning about the moral wrongness of the charged acts and therefore she was not deprived by her mental disease of the capacity to know she ought not do the acts – where the primary judge correctly applied the test in Stapleton v The Queen (1952) 86 CLR 358 and considered as a relevant factor whether the appellant, when not intentionally intoxicated, understood her actions were punishable by law – whether the appellant was of unsound mind Criminal Code (Qld), s 27 Mental Health Act 2000 (Qld), s 267, s 389, s 405 Attorney-General (Qld) v Bosanquet & Ors [2012] QCA 367, cited DAR v DPP (Qld) & Anor [2008] QCA 309, cited R v Codere (1916) 12 Cr App R 21, cited R v Schafferius [1987] 1 Qd R 381, cited R v Windle [1952] 2 All ER 1, cited Re M’Naghten’s Case [1843 – 60] All ER 229; [1843] EngR 875, cited Re W (Unreported, Mental Health Tribunal, Dowsett J, 14 October 1997), cited Stapleton v The Queen (1952) 86 CLR 358; [1952] HCA 56, considered The King v Porter (1933) 55 CLR 182; [1933] HCA 1, cited |
COUNSEL: | J D Briggs for the appellant M B Lehane for the respondent |
SOLICITORS: | Legal Aid Queensland for the appellant Director of Public Prosecutions (Queensland) for the respondent |
- MARGARET McMURDO P: The appellant was charged with two counts of unlawful stalking with violence, the first between 6 October and 31 December 2012 and the second between 7 March and 24 March 2013, together with three charges of breach of bail, the first between 20 and 29 December 2012; the second on 8 March 2013; and the third on 23 March 2013. The alleged victim of the stalking was a male colleague with whom the appellant had previously worked and about whom she had an erotomanic delusion. The charges were referred to the Mental Health Court to determine whether the appellant was of unsound mind at the time of the offending and, if so, fit for trial. This appeal is from the court’s conclusion that she was not of unsound mind at the time of the offending; was fit for trial; and that the charges against her should proceed according to law.
- There were originally four grounds of appeal but at the hearing the appellant’s counsel compressed the first three into a single ground, namely that the court erred in failing to properly apply the test in Stapleton v The Queen[1] to the reporting psychiatrists’ essential clinical observations.[2] Later in the hearing he stated he was not pressing the fourth ground of appeal[3] so that there is now effectively only one ground of appeal to consider. It is uncontentious that this is an appeal in the strict sense, requiring the demonstration of error of fact or law.[4]
- I will set out the relevant statutory provisions, discuss Stapleton, summarise the appellant’s contentions, and review the reasons of the court at first instance before stating my reasons for dismissing this appeal.
Relevant statutory provisions
- The Mental Health Act 2000 (Qld) s 267 empowers the Mental Health Court to decide whether a person the subject of a reference to it is of unsound mind when the alleged offence was committed. Under s 405 of the Act the standard of proof is on the balance of probabilities and no party bears the onus of proof, but this is with the qualifications noted in Briginshaw v Briginshaw[5] that clear and convincing evidence is required.[6] The Mental Health Court is constituted by a Supreme Court Judge who, under s 389 of the Act, is advised by two assisting psychiatrists on the meaning and significance of clinical evidence.
- The expression “unsound mind” is defined in the schedule to the Act as:
“...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.”
- Criminal Code 1899 (Qld) s 27 restates the common law identified in M’Naghten’s case[7] and provides as to the branch of insanity with which this case is concerned:
“27Insanity
(1)A person is not criminally responsible for an act...if at the time of doing the act...the person is in such a state of mental disease...as to deprive the person of the capacity...to know that the person ought not to do the act ....”
Stapleton v The Queen
- In light of the appellant’s emphasis on Stapleton, it is necessary to discuss those portions of it on which she relies. In this case the High Court (Dixon CJ, Webb and Kitto JJ) discussed the inadequacy of the trial judge’s direction to the jury as to the legal test of the defence of insanity in criminal cases, as formulated in M’Naghten’s case. The focus, the court stated, must be on the accused person’s:
“knowledge of the nature and quality of the act and of its wrongness. For it is evident that a jury although satisfied that no capacity existed in a particular accused to reason at all may think that at the back of it all was an awareness of the nature of the act and of the fact that other people might regard it as wrong more especially if that means regarded by the law as wrong. That would not lead to a conviction if the jury understands that, given a disease disorder or defect of reason, then it is enough if it so governed the faculties at the time of the commission of the act that the accused was incapable of reasoning with some moderate degree of calmness as to the wrongness of the act or of comprehending the nature or significance of the act of killing. See Reg. v. Davis, Stephen J., R. v. Kay, Stephen J. In R. v. Porter this was expressed by Dixon J as follows: ‘The question is whether he was able to appreciate the wrongness of the particular act he was doing at the particular time. Could this man be said to know in this sense whether his act was wrong if through a disease or defect or disorder of the mind he could not think rationally of the reasons which to ordinary people make that act right or wrong? If through the disordered condition of the mind he could not reason about the matter with a moderate degree of sense and composure it may be said that he could not know that what he was doing was wrong.’” (Footnotes omitted).[8]
- The court noted that in R v Windle[9] the test was articulated as whether the accused knew that the act constituting the charged offence was against the law, but rejected that formulation of the question. Their Honours then considered R v Codere[10] where Lord Reading CJ accepted that the question was “whether according to the ordinary standard adopted by reasonable men the act was right or wrong”; noted “if it is punishable by law it is an act which he ought not to do, and that is the meaning in which the phrase is used in [M’Naghten’s case]”; and further noted: “there may be minor cases before a court of summary jurisdiction where that view may be open to doubt but in cases such as these, the true view is what we have just said.”
- Their Honours said of Lord Reading CJ’s observations:
“This perhaps means that in cases of serious crime, the fact that it is punishable by law is enough to show the prisoner that it is something which he ought not to do, although the final test is that it is wrong according to the standard adopted by reasonable men. The truth perhaps is that, from a practical point of view, it cannot often matter a great deal whether the capacity of the accused person is measured by his ability to understand the difference between right or wrong according to reasonable standards or to understand what is punishable by law, because in serious things the two ideas are not easily separable. But in certain cases, where the insane motives of the accused arise from complete incapacity to reason as to what is right or wrong (his insane judgement even treating the act as one of inexorable obligation or inescapable necessity) he may yet have at the back of his mind an awareness that the act he proposed to do is punishable by law.”[11]
- The court emphasised that the test was not: “that the accused must be incapable of understanding that he [or she] was acting contrary to law”; it was whether the accused was incapable of “appreciating that his [or her] act was wrong according to the ordinary standards adopted by reasonable [people]”.[12] As the jury were incorrectly directed as to this aspect of the law, their Honours set aside the guilty verdict and ordered a new trial.
The appellant’s contentions
- In essence, the appellant contends that her “state of mind”, referred to in the definition of “unsound mind” as explained in Re LIH,[13] did not result from intentional intoxication (which would exclude her from that definition) but from her mental disease as defined in s 27 Criminal Code. It was common ground that she was suffering from a mental disease, Delusional Disorder (Erotomanic Type), at the time of her alleged offending. Delusion alone, not intoxication, deprived her of reasoning about the moral wrongness of the acts constituting the alleged offending. This was the uncontroverted evidence of the reporting and assisting psychiatrists. The court, the appellant contends, did not apply Stapleton, which requires a consideration of whether she appreciated the moral wrongness of her acts, not whether she appreciated they were legally wrong. Had the court applied the correct test, the appellant contends it would have found that her delusions, the product of her mental disease, deprived her of reasoning that her acts were morally wrong. The appellant contends the appeal should be allowed, the decision at first instance set aside and instead this Court should find her of unsound mind at the time of all charges and remit the matter to the Mental Health Court for determination of any further orders.
The primary judge’s reasons
- A consideration of the appellant’s contentions requires a careful review of the relevant aspects of the Mental Health Court’s detailed reasons. The court first set out details of the alleged offending:
“[2]From the QP9s, the particulars of the stalking between 6 October 2012 and 31 December 2012 are:
(a)7.10.1280 telephone calls and 20 messages
(b)12.10.125 messages
(c)19.10.12145 calls and 29 messages
(d)22.12.12more than 95 calls and 10 messages
(e)27.12.1230 calls
(f)27.12.12(separately) 30 calls
The above calls in December are relied upon for the December 2012 breach of bail charge.
[3]From the QP9s the particulars of the stalking between 7 March 2013 and 24 March 2013 are as follows:
(a)8.3.1365 messages
(b)23.3.13100 calls and 42 messages
These particulars are relied upon in relation to the March breach of bail charges. ...”
...
- The court noted:
“[5]The messages left for the complainant were obscene, angry, threatening and intimidating. [The appellant] was angry because she felt the complainant was not acting consistently with the relationship she wrongly believed she had with him. Dr Beech did not believe, and did not elicit from [the appellant], that she held a belief that the complainant wished her to telephone or otherwise contact him – tt 1-18-19. Nor did Dr Butler give any evidence of such a state of mind.
[6]At various points in time [the appellant] was arrested and granted bail. She was on remand for some time and came under the care of Dr Andrew Aboud, Clinical Director of Prison Mental Health Service between May 2013 and December 2013. He diagnosed a Delusional Disorder (Erotomanic Type), complicated by Alcohol Abuse. Dr Aboud said, ‘These disorders, to some extent, explain her offending behaviour which could be viewed as Intimacy Seeking Stalking behaviour. I suspect alcohol intoxication significantly contributed as a behavioural disinhibitor at the time.”
- Her Honour identified that the relationship between the appellant’s state of mind at the time of the alleged offending and her intoxication was central to a decision as to soundness of mind.[14] After reviewing the material concerning the appellant’s intoxication at the time of the alleged offences,[15] the court concluded that on every occasion particularised as part of the alleged offending, the appellant was drunk.[16]
- Her Honour next reviewed the opinion of psychiatrist, Dr Beech. He noted that the appellant continued in her actions despite police warnings, arrests and convictions.[17] She told Dr Beech she met the complainant at work in 2006; her marriage ended in 2007 and she left her job where she worked with the complainant in 2008. She thought she and the complainant had a relationship which developed when they worked together and continued afterwards; she was distressed that he denied this. She interpreted his complaints to police about her conduct as a sign of his ongoing interest in her.[18] She told Dr Beech that in 2012 she nursed her mother until her mother’s death and drank very large amounts of alcohol in this period. Some phone calls to the complainant, including those in October 2012, occurred when she had been drinking. She told Dr Beech she would sometimes “rant and rave and say rude things”[19] and thought her phone calls were “shocking.” She could not recall why she rang the complainant; perhaps he had rung her first and she was ringing back. She thought he should never have started their relationship.[20]
- Dr Beech summarised information from a psychologist whom the appellant consulted between March 2009 and September 2012. The psychologist thought she was depressed and by July 2010 diagnosed Delusional Disorder (Erotomanic Type). She told the psychologist she did not know why the complainant went to the police because they were going to marry. She expressed various irrational ideas about how the complainant was interested in her and controlled her life; he caused her to lose her job because he did not want her to work. She told her GP that she drank five drinks per night, five to six days a week from January 2009.[21]
- Dr Beech’s qualified opinion in November 2013 was that she suffered from a mental illness, namely Delusional Disorder (Erotomanic Type); she believed she had a relationship with the complainant and continued to act on that belief. He stated: “This mental illness may have arisen from a primary mental disorder but it is likely also to be affected by her personality vulnerabilities and aggravated by drug and alcohol use.” His provisional view was that she was, “likely to have been deprived of the capacity to know she should not persist with her attempts to contact [the complainant].”[22]
- In his April 2015 report, Dr Beech stated that after release from prison in December 2013 on one day she telephoned the complainant, she thought, on more than 60 occasions but had limited memory of the calls. She did so because, “she was used to him looking after her.” She had been drinking which apparently accounted for her limited recollection of what occurred. She still had delusional beliefs about the complainant and thought he continued to make indirect contact with her.[23] Dr Beech considered that she suffered Delusional Disorder (Erotomanic Type) and, during 2012-2013, a Disorder of Alcohol Abuse and probably Dependence. She understood in a practical sense that communicating with the complainant “would lead to trouble with the police”. She had contacted the complainant on many occasions because she was intoxicated with alcohol and on some occasions it was likely she contacted him while sober. He was unable to delineate between incidents which occurred as a result of intoxication adding to her delusional beliefs, and those which occurred only because she was delusional, but most occurred when she was intoxicated. At the time of her alleged offending she “was driven by her delusional beliefs but her actual behaviour, the breaking of the law, occurred because she was disinhibited by intoxication. However...there were a number of times when simple daily stressors were enough to disinhibit her.” On those occasions he thought “she would have known it was breaking the law but her mental illness, the Delusional Disorder, deprived her of the capacity to know that what she was doing was wrong in a moral sense.”[24]
- Dr Beech considered that, during all the alleged offending, she knew that if she telephoned the complainant the police would be called, and she would be sanctioned, and that other people regarded her conduct as wrong. But when she became intoxicated that inhibition dissolved; she knew she would be in trouble for contacting him but she did it because she felt he loved her and was reaching out. She appreciated it was illegal and wrong but thought that if he truly loved her but would not admit it, she had the right to call him and, in that sense, reach out to him and she may “have thought she was in the right.”[25]
- Dr Beech concluded, the court noted, that at the time of the phone calls constituting the stalking, she was deprived of the capacity to know she ought not make those calls, but he could not exclude that intentional intoxication played a role in the deprivation of that capacity:
“she had the beliefs regardless of whether she was intoxicated or not, but...she kept herself back from making the calls because she knew there would be trouble and that it was wrong, at least in a legal sense, [but]...once she was intoxicated, that inhibition was taken away.”[26]
- In Dr Beech’s opinion, she lacked understanding in interpreting her relationship with the complainant; this was informed by her illness which took away her capacity to think rationally. Much of the time she refrained from phoning him because “she knew it was wrong in the terms you don’t do it, he said not to do it; the police will come around. But once…she was intoxicated that inhibition went away.” The intoxication was not informing the delusion, Dr Beech opined, but it was taking away the rational part of her thinking that if she did this she would get into trouble again.[27]
- The court next considered the opinion of psychiatrist, Dr Butler. He examined the appellant on 27 August 2014. She told him that she no longer had romantic feelings towards the complainant and believed he had no desire to have a relationship.[28] She stated that her drinking problem began in 2008 and by 2010 she was consuming a four litre wine cask over two or three days. She was often intoxicated leading up to her mother’s death. She then dramatically reduced her alcohol intake; occasionally she still drank to excess but no more than eight litres of wine per week. Dr Butler thought that from about 2008 she had a Delusional Disorder (Erotomanic Type). At the time he saw her, this was in partial to full remission. Her phone calls constituting the stalking were the result of her thinking the complainant had rejected their romantic relationship; this caused her to be angry and abusive. Through 2012 and 2013 she developed an increasingly severe Alcohol Use Disorder of moderate severity which exacerbated her depressive symptoms, affected her judgment and behaviour, and contributed to the stalking.[29] The Delusional Disorder was a mental disease from which she was suffering at all material times. Periodically she also suffered in varying degrees from a Major Depressive Disorder.[30]
- Dr Butler considered it difficult to separate the effects of her likely alcohol intoxication from the effects of her underlying illness. She may not have made some calls if she had not been intoxicated. On occasions she appeared not to be consuming alcohol when she exhibited stalking behaviour. He considered that sometimes her delusional thinking deprived her of the ability to monitor, reflect upon and control her behaviour; she would have been so consumed by rage and angst that, at least for temporary periods, she would have only been vaguely aware of reality; she would have been deprived of the capacities to control and understand her behaviour, and to know she ought not have committed the acts. Her intoxication was a significant contributing factor on most occasions when she made the harassing phone calls which she may not have made if not intoxicated.[31] He considered that, on at least a number of occasions, her intoxication contributed to the deprivation of her capacity to know she ought not do the act or to control her actions and on other occasions, based on what she told him, alcohol may not have been a factor. It was difficult to separate out the intoxication effect but, where she was clearly intoxicated, it contributed to her behaviour at least to some extent. In most instances of alleged offending, Dr Butler considered that intoxication did play a role in bringing about the deprivation of her capacities.[32]
- Her Honour set out the following exchange between the appellant’s counsel and Dr Butler:
“Given her delusion, at the time she was contacting [the complainant], she couldn’t think rationally of the reasons which an ordinary person would have considered when that ordinary person was considering whether contacting [the complainant] was wrong? --- That’s correct. I believe that.”
- These observations, the court considered, were consistent with his earlier expressed views that, on occasions when she contacted the complainant apart from 12 October 2012, she was intoxicated and this affected her state of mind, depriving her of the capacity to know she ought not do the act.[33] When asked by assisting psychiatrist, Dr Lawrence, whether intoxication motivated the appellant to phone the complainant, Dr Butler stated that he thought “it contributed to some extent.”[34]
- The court next dealt with the advice from the two assisting psychiatrists. Dr Lawrence considered that the appellant was deprived of the capacity to know she ought not do the act at the time of the phone calls and that it was her delusional beliefs that motivated and drove her harassing behaviour.[35] Dr Varghese considered that her delusions were strong enough to impact on her capacity to know the wrongness of her acts constituting stalking, even though she knew their consequences or potential consequences. But he considered that, in light of the evidence of Drs Beech and Butler, he could not advise that intoxication was not involved to some extent in her behaviour. Intoxication did not cause the delusion but it resulted in behaviours that led to the charges. Alcohol was disinhibiting and could intensify delusional, erotic longing. Dr Varghese considered that the defence of insanity was not available on the grounds of intoxication, except with respect to the 12 October 2012 case where Dr Butler confidently considered intoxication was not involved.[36]
- After setting out the definitions of unsoundness of mind and insanity[37] and citing Dowsett J’s observations in Re W,[38] the court stated that the question “when dealing with mental illness said to cause deprivation of one of the relevant capacities, is to ask whether or not the illness actually deprived the accused person of the capacity at the time of doing the act constituting the offence…not whether…it was sufficient to deprive or capable of depriving, the accused of the relevant capacity.”[39]
- Her Honour emphasised the following aspects of Philippides J’s observations in Attorney-General (Qld) v Bosanquet & Ors.[40] There is a distinction between an absence of capacity (deprivation) and something less (for example, substantial impairment). For the defence to apply, the illness must also be “sufficient” to result in a deprivation of a capacity:
“But where the question of intoxication is raised, evidence that an accused person would have been experiencing a state of mental illness resulting in a deprivation of capacity, even if not consuming intoxicating substances may be problematic because it blurs a proper consideration of whether the relevant deprivation was contributed to, to any extent, by intoxication and thus provide an inadequate basis...to reach a finding of unsoundness of mind.”[41]
- The court accepted that without the appellant’s delusional beliefs she would not have offended. But that was not the test.[42] Nor was it decisive that she sometimes made harassing calls to the complainant when she was sober so that on those occasions it was the delusion which was depriving her of the capacity to know she ought not make the calls. Her Honour found that, on every occasion particularised as an incident of stalking, the appellant was intoxicated. It was not relevant to determine whether on other unparticularised occasions she engaged in conduct which would have amounted to stalking.[43] The proper approach was to focus on the time of the acts which constitute the alleged offences and ask whether, at those times, she was actually deprived of a relevant capacity, and if so whether intoxication contributed to that deprivation to any extent.[44]
- Applying Stapleton,[45] the court found that the appellant’s state of mind was brought about in part by intoxication on every occasion particularised as an act of stalking. This, her Honour considered, was consistent with the evidence of Drs Butler and Beech who thought that the deprivation resulted in part from her delusional thinking, and in part from the effect of alcohol without which she was able to reason that she should not do the acts complained of; with alcohol her ability to reason as to the wrongness of her acts was taken away. She was not entitled to rely upon unsoundness of mind as a defence.[46]
- The court next dealt with an argument similar to that which the appellant puts forward in this Court, although noting that her comments were obiter. After discussing Dowsett J’s observations in Re W,[47] Codere which was cited with approval in Stapleton,[48] Dixon J’s jury directions in The King v Porter[49] and Bosanquet,[50] the court noted that there are cases in which consciousness that an act is contrary to and punishable by law will be sufficient to establish consciousness that the alleged offender ought not do the act. This was such a case. The court noted that most of the time the appellant was capable of reasoning with a moderate degree of calmness as to the wrongfulness of contacting the complainant and comprehending the nature and significance of doing so by reference to ordinary standards, one of which was the provisions of the criminal law. But, the court observed, when the appellant became intoxicated she lost that ability, through a combination of her mental illness and intoxication. This was clear, the court considered, from both Dr Beech’s and Dr Butler’s evidence.[51] When not intoxicated, the appellant knew, the court found, that she ought not do the acts which constitute the stalking with which she was charged.[52]
Conclusion
- This comprehensive review of the primary court’s reasons shows it readily accepted that, at the time of the alleged offending, the appellant was suffering from a mental disease, Delusional Disorder (Erotomanic Type), which caused her to irrationally believe she must do the charged acts. She was therefore suffering from a “mental disease” under both the definition of “unsound mind” under the Act and s 27 Criminal Code. Her Honour also found that during every particularised act of offending, the appellant was drunk, and there is no longer any appeal from that finding. The court found her delusions alone, without her intentional intoxication, did not deprive her of the capacity to know she ought not do the charged acts. This was a factual finding open on the evidence of Drs Butler and Beech and consistent with the advice of Dr Varghese.
- Contrary to the appellant’s contentions, the court did not, in making that finding, incorrectly apply Stapleton. Her Honour recognised, consistent with Stapleton, that the question in determining whether the appellant was deprived of the capacity to know she ought not do the charged acts was whether, at that time, she had the ability to reason with a moderate degree of composure, according to the standards adopted by reasonable people, as to the wrongness of her acts. In answering that question it is relevant, although not decisive, to consider if she understood her acts were punishable by law. The two concepts are often intertwined. In giving weight to the uncontroverted evidence that the appellant, when sober, understood her charged acts were against the law and would get her into trouble with the police, the court was considering a highly relevant factor in determining whether she was able to reason with a moderate degree of composure, according to standards adopted by reasonable people, as to the wrongness of her acts. The court appreciated the subtle distinction between the essential question and the relevant factor. It did not misapply Stapleton in finding that, as a matter of fact, when not intentionally intoxicated, despite her delusions, she was not deprived of the capacity to know she ought not do the acts constituting the alleged offending. This central aspect of the appellant’s contentions is not made out.
- Nor did the court err in concluding that the appellant was not of “unsound mind” as defined in the Act as her “state of mind” resulted in part from intentional intoxication at or about the time of the alleged offences. Wilson J in Re LIH held that the term “state of mind” in this context was:
“a description of absence of capacity caused by mental disease...If intentional intoxication plays any role in bringing about the deprivation, the state of mind does not amount to ‘unsoundness of mind’: that is what is meant by the words ‘resulting, to any extent, from…’.”[53]
- As I have noted, the court found that every particularised act of stalking occurred when the appellant was intoxicated. The court also found, as a question of fact open on the evidence of Drs Beech and Butler and the advice of Dr Varghese, that the appellant’s state of mind was that, although when sober such as not to deprive her of the capacity to understand what she was doing, her intentional intoxication combined with her mental disease deprived her of that capacity. In terms of the definition of “unsound mind” in the Act, the appellant’s deprivation of the capacity to know that she ought not do the charged acts resulted in part from her intentional intoxication so that she did not come within the terms of that definition.
- As the appellant’s ground of appeal is not made out, the appeal must be dismissed.
- GOTTERSON JA: I agree with the order proposed by McMurdo P and with the reasons given by her Honour.
- MORRISON JA: I have read the reasons of Margaret McMurdo P and agree with those reasons and the order her Honour proposes.
Footnotes
[1] (1952) 86 CLR 358, 367-368.
[2] Appeal Transcript T1-2, l 20 – l 25.
[3] Appeal Transcript T1-35 – l-36, especially l 20 – 1 25.
[4] DAR v DPP (Qld) & Anor [2008] QCA 309, [7] – [29] (Keane JA), [95] (Holmes JA), [98] (Fraser JA).
[5] (1938) 60 CLR 336.
[6] R v Schafferius [1987] 1 Qd R 381; DAR [2008] QCA 309, [82] – [83].
[7] Re M’Naghten’s Case [1843 – 60] All ER 229.
[8] Stapleton (1952) 86 CLR 358, 367.
[9] Above, 368 citing [1952] 2 All ER 1.
[10] Above, 379 citing (1916) 12 Cr App R 21.
[11] Above, 375.
[12] Above.
[13] [2002] QMHC 14, [14] (Wilson J).
[14] [2015] QMHC 8, [7].
[15] Above, [8] – [14].
[16] Above, [15].
[17] Above, [16].
[18] Above, [17].
[19] Above, [18].
[20] Above, [19].
[21] Above, [20].
[22] Above, [21].
[23] Above, [23].
[24] Above, [24].
[25] Above, [25].
[26] Above, [26].
[27] Above, [27].
[28] Above, [28].
[29] Above, [30].
[30] Above, [31].
[31] Above, [32].
[32] Above, [33].
[33] Above, [34].
[34] Above, [35].
[35] Above, [36].
[36] Above, [37].
[37] Above, [40].
[38] (Unreported, Mental Health Tribunal, Dowsett J, 14 October 1997).
[39] [2015] QMHC 8, [41].
[40] [2012] QCA 367, [58].
[41] [2015] QMHC 8, [42].
[42] Above, [43].
[43] Above, [44].
[44] Above, [45].
[45] (1952) 86 CLR 358, 367 discussed in [7] of these reasons.
[46] Above, [48].
[47] (Unreported, Mental Health Tribunal, Dowsett J, 14 October 1997) 12 – 13.
[48] (1952) 86 CLR 358, 374 – 375.
[49] (1933) 55 CLR 182, 189 –190.
[50] [2012] QCA 367, [81] set out at [8] – [9] of these reasons.
[51] [2015] QMHC 8, [57] set out at [7] of these reasons.
[52] Above, [58].
[53] [2002] QMHC 14, [14].