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The Queen v Osborne[2020] QDC 82

DISTRICT COURT OF QUEENSLAND

CITATION:

R v Michael John Osborne [2020] QDC 82

PARTIES:

THE QUEEN

v

MICHAEL JOHN OSBORNE

(defendant)

FILE NO/S:

Indictment No. 286/19

DIVISION:

Criminal

PROCEEDING:

Trial

ORIGINATING COURT:

District Court of Queensland

DELIVERED ON:

8 May 2020

DELIVERED AT:

Cairns

HEARING DATE:

5 & 7 May 2020

JUDGE:

Morzone QC DCJ

ORDER:

  1. Count 1:  not guilty on account of unsoundness of mind;
  2. Pursuant to s 647 of the Criminal Code the defendant will be admitted to the Cairns and Hinterland Mental Health Service, being the relevant authorised mental health service, to be dealt with under the Mental Health Act 2016;
  3. I direct the registrar provide the health service with this decision, and all transcripts and exhibits in the proceeding.

CATCHWORDS:

CRIMINAL LAW – JUDGE ALONE TRIAL – serious indictable offence – the defendant elected a trial to a judge sitting without a jury – grievous bodily harm – whether insanity by disease of the mind but not voluntary intoxication – did the defendant have the mental disease Paranoid Schizophrenia at the time of the offending – if so, did it deprive him of one or more of the described capacities provided in s 27 of the Criminal Code?if so, did the defendant make himself voluntarily intoxicated by cannabis which contributed to his state of mind at the time of the offending to any extent? – verdict of not guilty on account of unsoundness of mind.

Legislation

Criminal Code 1899 (Qld), ss 27, 28, & 320

Mental Health Act 2016 (Qld), s 109

Cases

R v Barry [1984] 1 Qld R 74

R v E (1995) 89 A Crim R 325

R v Falconer (1990) 171 CLR 30

R v Jennion [1962] 1 WLR 317

R v Joyce [1970] SASR 184

R v Kemp [1957] 1 QB 399

R v Meddings [1966] VR 30

R v Porter (1933) 55 CLR 182

R v Holmes [1953] 1 WLR 686

Stapleton v The Queen (1952) 86 CLR 358

Walton v The Queen [1978] AC 788

Wedd (2000) 115 A Crim R 205

Willgoss (1960) 105 CLR 295

COUNSEL:

E Coker for the Crown

J Sheridan for the Defendant

SOLICITORS:

Office of the Director of Public Prosecutions for the Crown

Stevenson & Associates Lawyers solicitors for the Defendant

  1. [1]
    The defendant is charged with, and pleaded not guilty to, the offence of grievous bodily harm.
  1. [2]
    The defendant’s encounter with the complainant comprised of a surprise attack in isolated bushland, during which the defendant struck the complaint’s back with the flat part of a mattock, stabbed him about seven times with a pocketknife and left the complainant bleeding. Whilst the defendant admits that he caused the complainant grievous bodily harm, he relies on the defence of insanity.
  1. [3]
    The trial proceeded over two days in accordance with the defendant’s election to a trial before a judge sitting without a jury.
  1. [4]
    I received oral testimony from the complainant about the defendant’s bizarre utterances and behaviour during the frenzied attack. He also displayed bizarre behaviour when he went to seek help, and later when he led the police to the scene. He was later diagnosed with schizophrenia, but there is conflicting evidence of the defendant’s reports of recent cannabis use. Although he possibly used cannabis beforehand, I find that the defendant was not voluntarily intoxicated and cannabis use played no part in his offending. Having considered all the evidence, I am satisfied beyond reasonable doubt that the defendant was of unsound mind when he committed grievous bodily harm.
  1. [5]
    Therefore, I find the defendant not guilty of grievous bodily harm on account of unsoundness of mind and I will hear from the parties about appropriate consequential orders.

General

  1. [6]
    The burden rests on the prosecution to prove the guilt of the defendant. Of course, there is no burden on a defendant to establish any fact, let alone his innocence. The defendant is presumed to be innocent. For the prosecution to discharge its burden of proving the guilt of the defendant, it is required to prove beyond a reasonable doubt every element that goes to make up the offence charged and similarly exclude any possible defence.
  1. [7]
    The evidence comprises the witnesses’ testimony, exhibits and express admissions. For the most part, the facts can be proved by direct evidence, as well as circumstantial evidence capable of providing a proper basis for the court to draw inferences regarding the defendant’s state of mind. The court must only draw reasonable inferences from basal facts proved by the evidence, where there is a logical and rational connection between those facts and the inferences or deductions or conclusions. In a case where the outcome (or an essential element) is based entirely or substantially upon circumstantial evidence, where there is an inference reasonably open which is adverse to the defendant (i.e. one pointing to his guilt) and an inference in his favour (i.e. one consistent with innocence), I may only draw an inference of guilt if it so overcomes any other possible inference as to leave no reasonable doubt to my mind.[1]

Complainant’s Testimony

  1. [8]
    I was impressed by the complainant who gave evidence by video link. That mode of evidence complied with the travel and social distancing restrictions during the imposition of the COVID-19 pandemic, and no adverse inference will be drawn as to the defendant’s guilt and probative value is not impacted because it was given in that way. I accept the complainant’s evidence as being truthful and reliable.
  1. [9]
    The complainant was a distant neighbour and acquaintance of the defendant. One evening he made arrangements with the defendant to see a waterfall the following day. On 4 September 2016 the men commenced their journey, the complainant was travelling in his bush truck being led by the defendant on his motorbike for “maybe half an hour, 40 minutes”.   At one stage they travelled some distance together on the motorbike with the complainant as pillion passenger.
  1. [10]
    The complainant described how soon after they stopped in the bush he said to the defendant - “I had to get going, I had other things to do”, it “certainly got weird”:

“Eventually, he grabbed the shovel and took that, and said I’d better get rid of that, “We’re going to argue” … and that’s where he said, “You’re not leaving”.  … I asked him, “Well, what are we going to argue about?”  He said, “Oh, we’re going to argue”.  [In cross-examination he said that the defendant said in effect - “You’ll know after 12:13, and you’re not leaving until 3 pm”] … And then he looked over and he said, “You’ve got to dig over there”.  I said, “What have I got to dig over there for?”  And it stopped him, and he had a bit of a thought then said, “Dig up the orange rope”.  I said, “What orange rope?”  He said, “The orange rope that you tied me up with when you pulled me teeth out”.  And that’s where I figured, “I’d better get out of here, this guy’s crackers”. 

I started to head – to get out of there, and he was just all over me, screaming, “You’re not leaving, you’re not leaving”.  He had terrible bad breath.  And that’s where, yeah, I was trying to fight back but he was just all over the top of me.  I – you know, I’m 20 kilo lighter than I’ve been most of my life and – yeah, and then he, yeah, donged me across the back with the mattock, picked me up by the throat and the scrote, bowled me into the ground and knee-dropped me.  …

Yeah, he was all over the top of me. … Just grabbing me, pulling me back, screaming, “You’re not leaving, you’re not leaving. 

[Where did he hit you with the mattock?] Mid to lower back, and he hit me with the flat of the mattock, not the actual pick of it. ...  I was trying to get away from him. … … That almost dropped me.  It took my legs out from under me.  It was – yeah, I thought he’d broken my back.  And I nearly dropped, and that’s where he picked me up by the throat and the scrote.  Literally picked me up into the air, dropped me and knee-dropped me at the same time.  Bowled me into the ground and at the time I never had a broken rib, but I thought he’d broken every rib in my body. … He knee-dropped me at the same time both – with both knees. … He dropped onto me, using his knees into my ribcage. …  Shoving my head into the mud and screaming out, “Call on Christ and you’ll be healed”.

… I was trying to fight him off to the best of my ability, but he had me pretty pinned on the side.  I grabbed him by the throat at one stage and he’s pulled my hand away and said, “Oh, I can control you by one finger”, rah, rah, rah.  Then he was shoving his hand in my mouth, which was all muddy and everything, and he – screaming out, “Bite my fingers off and Ruby will be healed”.  Well, I had no idea who Ruby was, but whatever.  And he knocked out quite a few of my – the teeth that – my bottom teeth.  Yeah, and just, yeah, kept pumping into me.  And then he – I felt him stabbing me.  I thought at first it was just he was punching me in the side, but he was stabbing me down the side.  And I felt one piercing blow on my – quite possibly the one that punctured my lung.  Then he was using the knife on the side of my head, which didn’t overly cut, I guess because his hand would have been so bloody and muddy it was slipping.  And in the end, I finished up just reaching up and taking the knife out of his hand by the blade. … Then he got off me.

[Are you able to say how long this had gone on for, from when he first was all over you as you were trying to leave, to when he then got off you?]That’s a hard question.  … Only several minutes, I’d guess.

[So, what happened after he’d got off you?]I was sitting – I sat up, exhausted, and he went over and got his bag.  He’s walked back and run his thumb up the middle of my forehead and said, “See, you are healed”.  Walked off, got on his motorbike and I heard it go away. … I collapsed. 

[Did you try and stand up or walk away?]Yeah, I did.  And every time I was doing everything, I could just feel the blood pumping out of my side, so I actually sat back on the log that I was sitting on the first place.  But every time I tried to stand up or I was spitting blood out of my mouth and everything, it was just oozing out of my side.

  1. [11]
    During cross-examination, the complainant recalled the defendant’s past behaviour talking about “an alien spaceship above us” and referring to “diablo”.  He otherwise affirmed critical aspects of his evidence in chief.

Evidence of Sharon Trezise

  1. [12]
    Once the defendant left the complainant at the scene, he rode his motorbike to the home of Ms Trezise who testified that – “He … was really distressed.  He had blood on him and he was – he was – he was very anxious and he was saying that, “I” … stabbed somebody and he wanted me to call – he was very urgent in his message, that he wanted me to call 000 to get – please get on to the police and the ambulance”.  She recalled the defendant left for a period, “And then he – and then after a while he did come back again to my house and asked again for me to ring the police and the ambulance.”
  1. [13]
    During cross-examination, Ms Trezise said – “I remember at one stage that he was very distraught, but I think that was just when he came back a second time. … And … he had his hands in his head and he looked … he had his head in his hands and he looked very worried and … a lot of the time I couldn’t make sense of what he was saying.”  She agreed that the defendant was “mumbling and ranting”, adding “it wasn’t like him before.  It was the whole situation was surreal.  It was just like – yes, weird.
  1. [14]
    I accept Ms Trezise’s evidence as truthful and accurate.

Police Evidence

  1. [15]
    I also received evidence of investigating police officers, including a series of photographs of the complainant, defendant and crime scene.
  1. [16]
    Officer O'Keefe described the interaction with the defendant while attending the scene. He immediately confessed that he had stabbed the complainant and was anxious to lead them to the injured complainant and scene. He described the defendant’s mumbling and demeanour and erratic and unusual behaviour as he was leading the police. The defendant seemed incorrigible to get into the police car and instead trying to guide them on his motorbike, until they finally coaxed him to get into the car, arrested and cuffed him. They continued their journey to the complainant and returned to place him in the care of the ambulance.

Defendant’s Evidence

  1. [17]
    The defendant was not obliged to give evidence or call witnesses to testify or otherwise produce evidence. That does not shift any evidentiary burden to him. The prosecution retains the burden of proving each of the elements of the offence beyond reasonable doubt, having regard to the whole of the evidence.
  1. [18]
    This is a case often described as one of “word against word”. But this does not call for a choice of the competing evidence as between the complainant and the defendant. Indeed, it is not a pre-requisite to an acquittal for the defendant to be believed.[2]  If his evidence is found credible and reliable so that it provides a satisfying answer to the prosecution’s case, he ought to be acquitted.  Similarly, he should be acquitted if his evidence is found unconvincing, yet I’m left with reasonable doubt.  Of course, if I’m unconvinced by the defence evidence, I’ll set it aside, and consider on the rest of the evidence I accept, and whether I’m satisfied beyond reasonable doubt that the prosecution has proved each of the elements of the offence.
  1. [19]
    The defendant described his perceived conduct and unusual behaviour in relation to the complainant, and readily accepted that it was delusional and did not happen. His account of travelling by four-wheel-drive and motorbike was consistent with the complainant’s account, but his recollection diverged:

“We drove – rode about a kilometre and got off, basically went over.  Started – I started digging some palm fronds out.  Trying to think of the name.  Xanthorrhoea palms.  That’s when I started to feel, like, a complete terror for no reason.  I was just …Terror.  Like terrified.

… Here.  I wanted to – sort of – I was going to – about to walk down the creek.  Just – I had to get away from – I didn’t know what, but I did, and I stayed there.  And I had it in me head for some reason that I had to stay there with him until 3 o’clock.  And I told him this, and he said, “No, I’m going,” I think.  I’ve grabbed him.  I’ve wrestled around for probably five minutes.

[Why did you grab him?  Did you remember?]Because I had it in me head at the time – I know it’s delusional now.  But I had it in me head at the time that we had to stay there until 3 o’clock for some reason.  And I couldn’t explain why.  I didn’t even know why, you know?  It was just basically in schizophrenia I know now.  We’ve wrestled around.  He punched me there.  I remember getting punched. …

[So did you get hit on the upper cheekbone you’re pointing to there?]Yeah.  Yeah.

…  We wrestled around, and in me mind it had switched – not switching realities but switching scenes, what was happening.  One – one moment I thought I was in heaven.  It’s – it’s really hard to explain, because looking back on it now I know it’s like an insanity.  But it’s hard to explain insanity.  I was thinking we were in heaven, and – that’s right, I thought there was UFOs above us.  I’d – I grabbed him, and I’m saying, “Don’t get on the ships.”  He looked up and said, “There’s no ships there.”  And we wrestled around for a little bit more, probably a number of – couple of minutes.  In total we probably wrestled for 10 minutes I’m guessing.  Then we were both kneeling on the ground after we stopped wrestling.  He was probably two feet away from me.  I’ve got the pocket knife out of me bag.  The bag was right next to us.

[Why did you get the pocket knife out of your bag?]That’s right.  He said – well, as we were wrestling he goes – he screamed I’d kill – he’d kill me.  And that’s why I thought I’d let him kill me for some reason.  I put the knife down and told him roughly three times to cut me head off, and the Elohim would come back and sew me head back on.

[Who was the reference to Elohim being? ]The Elohim.  The biblical Elohim.  Either god or angels.

… Then he’s picked – I was lying back on my back.  I got up, opened my eyes and the knife – he had the knife in his right hand.  I’ve grabbed – grabbed his hand, pushed his hand to the ground.  The knife blade folded around my hand.  That’s how my hand was injured.  And I’ve pushed back.  I’ve put it – I’ve bent his arm back, and it’s stabbed him there.  And I’ve pushed his arm trying to get the knife out of his hand down behind his back, and I remember it catching him on the back just there.  And he dropped the knife, and I picked up the knife and threw it about four few away.”

  1. [20]
    He then described going to Ms Trezise’s place to report his offending, then to a friend “Harry and then going back to the complainant leading the police.
  1. [21]
    The prosecution relies upon hospital medical notes recording that the defendant told medical staff that he had cannabis on that date. During cross-examination, the defendant denied smoking cannabis before the incident, and could not recall telling medical staff that he had taken cannabis on the day of the incident and denied the suggested high regular use. He also had no recollection that he told someone (Dr Bala) he’d last smoked a one week before the incident and said – “If I had said it was a week before the offence, yeah. … Well, I wouldn’t have said one week.  He maintained that he didn’t smoke any cannabis on that day of the incident, 4 September 2016.  The defendant was not otherwise effectively challenged about anything he had done or consumed in the days leading up to the day of the incident, or even since waking on the morning on the day of the incident.

Expert Evidence

  1. [22]
    Expert medical or psychiatric evidence is admissible on the question of unsoundness of mind. Such an expert may swear to the very fact in issue, that is whether a defendant was insane concerning the act in question.[3]  The court may act on other than expert evidence and may take into account “the whole facts and circumstances of the case. These include the nature of the [the offending], the conduct of the defendant before, at the time of and after it and any history of mental abnormality.”[4]
  1. [23]
    Of course, I am not obliged to accept the opinions of the doctors but should evaluate their evidence by having regard to all of the evidence and the circumstances which are relevant to the defendant’s state of mind.
  1. [24]
    Dr Leslie Griffith and Associate Professor Siva Bala gave expert evidence. I am satisfied that they are duly qualified and testified about relevant matters within the field of their expertise. The evidence was not subject to challenge or contradiction. I also admitted into evidence the hospital records, clinical notes and report of Dr Okereke (who has now left the jurisdiction), and documents, a transcript and decision of the Mental Health Court.
  1. [25]
    Dr Boyle, psychiatric registrar, reviewed the defendant on 6 September 2016. She noted in her assessment that – “He admitted that he had had a cone of marijuana a few hours before the stabbing occurred and maybe a few that morning.  He says he had been smoking 30-40 cones (4.5 – 5 ounces) of marijuana every day for the past 4 weeks.  He says that prior to this he had stopped using marijuana altogether for 3-4 months prior to that.  He can’t remember why he stopped it at that time, he thinks maybe because he just didn’t like it anymore.  He says he has been smoking marijuana since he was 18”.  In contrast, Ms Zerner noted that the defendant has “used THC for many years and he grows his own – just recently he had run out and that may have caused him to be more angry than usual.”
  1. [26]
    Dr Griffith gave evidence about the immediate, intermediate and long-term effects of cannabis use, and the degree of tolerance over time.
  1. [27]
    Dr Griffith was asked to consider the effect of cannabis use on a person who had not used the drug for three to four months, but then chronically used 30 to 40 cones being 130 to 150 grams of the drug every day for 4 weeks, and smoked a few cones of marijuana the morning of the incident, followed by a cone a few hours before. Dr Griffiths generally described that the person would be measurably impaired from driving for up to about three or four hours after such use, with physiological effect on memory, cognition, coordination, and because it’s a central nervous system depressant – the person would be quite drowsy and serene and possibly very passive. The doctor also remarked that a consumption rate of 130 to 150 grams a day would be “an extraordinary amount” that he’d not encountered in his working life.  As to the capacity to ride a motorcycle as the defendant did, Dr Griffith opined that although a person would acquire a degree of tolerance, it “does seem extraordinary that you could ride a motorbike to that degree without striking an obstacle or it does seem amazing, actually.”  The doctor added that riding with a pillion passenger would require a degree of skill, but he was unable to further comment on that. 
  1. [28]
    Dr Okereke, psychiatrist, reported about the plaintiff as a result of his admission to hospital as an involuntary patient from 5 to 20 September 2016 for paranoid schizophrenia. Dr Okereke recorded the plaintiff’s perception to the effect that on the bush outing of 4 September 2016 he stabbed the complainant after they argued about “digging, or who had dug the biggest hole”.  According to Dr Okereke’s report about two days after the offending, the defendant admitted that he first tried the drug when he was 18.  He said he abstained from the drugs for over 3-4 months, then he had a cone of marijuana a few hours before the stabbing occurred and maybe a few that morning.  He referred to the concept of the ‘Silent Sound Spread Spectrum’ as some controlling force of everyone’s thoughts and controlling the defendant’s thoughts “right now”.  He explained that he felt the need to defend himself when the complainant’s “eyes change shape” and become “kind of square, like a snake or a reptile” when he tried to stab the defendant with a knife.  He was very guarded about conspiracy theories and thoughts of the end of the world although, he disclosed beliefs about government controlling people’s minds, and having recent paranoid delusions about police wanting to kill him.  Dr Okereke opined:

it is my opinion that [the defendant] was suffering from a mental disease at the time of the offence.  We treated him for Paranoid Schizophrenia with substance abuse and he had been on treatment under the MHA 2000.  In addition, he was deprived of the capacity to understand what he was doing in relation to the offence.  He also lacked the capacity to control his action in relation to the offence and he did not have the capacity to know that he ought not to do that. 

Mr Osborne was mentally ill and was under the influence of substances at the time of the alleged offending.  It was possible that he was intoxicated when the alleged offence occurred; this may have contributed to some extent in the deprivation of capacity.”

  1. [29]
    In a clarifying email, Dr Okereke asserted that “Whilst it clear that Mr Osborne is suffering from a Mental Illness (Paranoid Schizophrenia), it’s very likely that his use of marijuana was a direct trigger or precipitant to his offending.  I do not believe he was intoxicated with Marijuana at the time of the offending.  His alleged offence was driven by his psychotic phenomena/paranoia which is in keeping with his illness.”  The plaintiff reported abstinence from alcohol for 4 weeks before the offending.
  1. [30]
    This account and those of other treating doctors, records and collateral, were considered by Associate Professor Dr Siva Bala, who assessed the plaintiff over a 1-hour video link on 1 December 2017. The defendant apparently reported that he accidentally stabbed the complainant in the chest, and then continued to struggle until he stabbed the complainant in the back with a knife after being goaded on by the defendant. The defendant reportedly described - “I felt weird, out of control, didn’t know what I was doing”, and that he felt “weird” meaning that it was “hard to explain … I couldn’t control myself … couldn’t stop myself” … “felt possessed … sort of, and had not experienced this before” he stated he was “fighting, arguing, couldn’t stop.”
  1. [31]
    In stark contrast to the account of heavy and recent cannabis use he told Dr Okereke, the complainant described a longer and recent absence of use to Dr Bala, as he did in his evidence in the trial. The defendant told Dr Bala that he started using cannabis at age 18 years old, and likely smoked 1 to 2 g every day from morning onwards until the age of 30. He would smoke from the morning onward. He cut back at the age of 30, and since. However, he explained that prior to the offending, he began smoking 1 ounce daily from morning onwards. He stated that boredom was the reason for him cannabis consumption. He claimed that he last smoked cannabis one week prior to the offence.
  1. [32]
    Consistent with the opinion of Dr Griffith, Dr Bala explained opined in his first addendum report:

Cannabis intoxication usually produces a sedated state with psychomotor slowing, relaxation, sleepiness, sociability, sense of pleasure and possibly euphoria; sometimes it can produce anxiety in those who are relatively naïve to cannabis [which Mr Osbourne was not]. Although there is variability in terms of response with cannabis, violence directly due to cannabis intoxication is unusual.

  1. [33]
    During his evidence the doctor also remarked that cannabis consumption also caused difficulty in control and co-ordination. Upon being apprised of the evidence of the defendant’s riding and manoeuvring the motorbike through the bush, (at one stage) with the complainant as a pillion passenger, and digging plants, Dr Bala considered this conduct was “inconsistent with someone intoxicated by cannabis”. 
  1. [34]
    Dr Bala maintained his opinion that cannabis did not directly cause the violence, but acknowledged that “cannabis can intensify a psychotic state, which, in turn, can lead to violence as a self-protective mechanism which is what I understand to have occurred in [the defendant’s] case.”  Whilst the psychosis was seen as the major cause of the violence, Dr Bala opined it was “more than likely cannabis use intensified the psychosis.” 
  1. [35]
    However, Dr Bala seems to depart from this earlier preliminary view when, in his final addendum report, with the benefit of further collateral information, hospital notes, and medical reports. He contrasted the perceptual disturbances such as hallucinations associated with cannabis intoxication with unreal delusions associated with a psychotic episode. He explained that hallucinations that occur with cannabis intoxication do not affect the persons perception of reality, whereas the defendant “had likely lost contact with reality due to his mental illness for some time prior to, during and succeeding, the offending behaviour … .  Further, psychotic symptoms due to cannabis intoxication would have resolved within a few days and would not require long term treatment with injectable antipsychotic medication.”   That shows that the defendant’s state was inconsistent with cannabis intoxication.
  1. [36]
    In his final addendum report Dr Bala provided his consolidated opinion. He affirmed:

My opinion is that cannabis did not directly cause the violence as it usually has the opposite effect, in contrast to alcohol or amphetamines which can directly lead to violence by disinhibiting the individual or creating a state of irritability.  Cannabis withdrawal may lead to irritability, but [the defendant] reports ongoing use.  Cannabis use may create a disassociated state, but my opinion is that a psychotic state better explains [the defendant’s] presentation at the time of the offence as reported in the collateral information.

  1. [37]
    Dr Bala concluded by summarising his opinion saying:

In summary, [the defendant’s] state of mind resulted predominantly from the psychotic illness (later confirmed as paranoid schizophrenia) rather than cannabis intoxication.  Cannabis intoxication does not cause the bizarre beliefs and experiences that [the defendant] is noted to have displayed and not for the length of time that he was unwell as an inpatient.  Whether [the defendant] was affected to the extent that he was intoxicated with cannabis is difficult to say; however, my opinion is that this did not cause the abnormal state of mind as he was psychotic independent of cannabis use.

  1. [38]
    In cross-examination the doctor opined that even with a consumption of 30 to 40 cones in the morning of the incident, that the defendant’s use did not contribute to any extent at all to his state of mind at the time of the offending. This is inconsistent with his evidence given to the Mental Health Court of 30 October 2018 when he was asked to focus on the defendant’s report of use to Dr Boyle:

“MR HAMLYN-HARRIS:  A few – this is in quotes in the doctor’s report from Dr Boyle:

He admitted that he had had a cone of marijuana a few hours before the stabbing occurred and maybe a few that morning. He says he’s been smoking 30 to 40 cones, 4.5 to 5 ounces of marijuana every day for the past four weeks.

HER HONOUR: Okay. So that’s what – that’s the factual premise. Not what he told you, not whether he told you this, that or the other. Just that. So, again, I’ll just repeat it. It’s his state of mind at the time of the offending. Did the intoxication contribute to his state of mind at the time of the offending to any extent? --- Probably, yes. I mean, again, it depends what a few hours is. The discharge summary which I’ve got says that, a few hours before he last smoked it. Very likely, I think it did, yes.

All right. And you’ve put in your report of the 26th of February that marijuana can intensify a psychotic state and that this can lead to violence in the form of self-protection in a way that he has sometimes given as a version of what happened here? --- Yes.

All right. So, now, I’m just – all right. Thanks very much. Thanks, Mr Hamlyn-Harris.

MR HAMLYN-HARRIS: And I take it that it would – would it follow from what you said that it would have contributed at least to some extent to the deprivation of capacity that you’ve identified? --- Yes.”

  1. [39]
    Dr Bala readily acknowledged that he was resiling from his evidence to the Mental Health Court, but explained that he had a further opportunity to consider all the available material which compelled his current opinion.
  1. [40]
    I am cognisant that the expert evidence is based on the expert’s observations and reports of the complainant during an examination, and the weight of the expert opinion will be impacted by the proof of evidence at trial. Here the defendant’s testimony aligns with his account given to Dr Bala, when he was sober and well, which differs markedly to the account given during his treatment and hospitalisation shortly after the incident. I am satisfied that those facts have been sufficiently established to afford significant weight to the doctor’s opinion. However, the defendant denied he used cannabis in the way reported to the hospital doctors and also Dr Bala. There remains significant inconsistency in his evidence of long abstinence and the timing and extent of cannabis use reported to the experts.
  1. [41]
    It seems to me that Dr Bala took into account various scenarios to express his opinion. There is no other evidence which casts doubt on Dr Bala’s final view, and I accept his re-considered view that if the defendant took cannabis on the morning of the incident (as reported to Dr Boyle and Dr Okereke) – it played no part in his state of mind.
  1. [42]
    In this trial the prosecution must prove the elements of the offences and exclude any possible defence beyond reasonable doubt, I turn to these now.

Count 1 – GRIEVOUS BODILY HARM

  1. [43]
    Section 320(1) of the Criminal Code provides that any person who unlawfully does grievous bodily harm to another is guilty of a crime.
  1. [44]
    The defendant admits, and it is taken as proved on the evidence that the complainant was transported to the Cairns Base Hospital on the afternoon of 4 September 2016 with:
  1. A wound on the left upper back, at the level of the 8th thoracic vertebrae.  This was noted as “DEEP”;
  2. A wound to the upper right back, at the level of the 6th thoracic vertebrae.  This was noted as “SHALLOW”;
  3. A laceration to the left cheek;
  4. A wound to the left shoulder.  This was described as “DEEP”;
  5. An injury to the left posterior deltoid;
  6. Lacerations to the third and fourth fingers on the left hand.
  1. [45]
    It is also admitted, and taken to be proved, that the deep wound on the complainant’s left upper back, at eighth thoracic vertebrae, satisfies the definition of grievous bodily harm. This wound punctured the thoracic cavity, causing air pressure in the chest to rise as the complainant breathed and the left lung to collapse. This injury was treated by the insertion of a catheter which allowed trapped air to escape. Without this treatment, a tension pneumothorax would have developed, and the complainant would have died without further medical intervention.
  1. [46]
    I am satisfied that the defendant wounded the complainant of such that the bodily injury at the eighth level vertebrae that, if left untreated, would endanger or be likely to endanger life or cause or be likely to cause permanent injury to health whether or not medical treatment is or could have been available.
  1. [47]
    I am satisfied beyond reasonable doubt (and it is undisputed) that that the defendant committed grievous bodily harm, and I now turn to consider the effect of the evidence about his state of mind.  

Insanity but not voluntary intoxication

  1. [48]
    The defence contends that he had a disease of the mind or a natural mental infirmity (as distinct from a disordered mind by voluntary intoxication), which deprived him of one or more of the relevant capacities.[5]
  1. [49]
    The prosecution seeks to vitiate the defence of insanity by relying upon the defendant’s own account given to Dr Okereke that he’d used copious amounts of cannabis for four weeks leading up to the offence and a cone several hours before the offending. It argues that the defendant’s mind was disordered by his voluntary intoxication by cannabis alone or in combination with some other agent.
  1. [50]
    Sections 27(1) and 28(1) of the Criminal Code provide that:

27   Insanity

  1. (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.
  1. (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.

28   Intoxication

  1. (1)
    The provisions of section 27 apply to the case of a person whose mind is disordered by intoxication or stupefaction caused without intention on his or her part by drugs or intoxicating liquor or by any other means.
  1. (2)
    They do not apply to the case of a person who has, to any extent intentionally caused himself or herself to become intoxicated or stupefied, whether in order to afford excuse for the commission of an offence or not and whether his or her mind is disordered by the intoxication alone or in combination with some other agent.
  2. (3)
    When an intention to cause a specific result is an element of an offence, intoxication, whether complete or partial, and whether intentional or unintentional, may be regarded for the purpose of ascertaining whether such an intention in fact existed.”
  1. [51]
    Section 109 of the Mental Health Act 2016 (Qld) defines unsound mind as follows:

“(1)  Unsound mind means—

  1. (a)
    a state of mental disease or natural mental infirmity described in the Criminal Code, section 27(1); or
  1. (b)
    a state of mind described in the Criminal Code, section 28(1) for which the Criminal Code, section 27(1) applies to a person.
  1. (2)
    However, unsound mind 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. [52]
    Whether a mental state amounts to “a disease of the mind” or a “natural mental infirmity”, is a question of law.[6]   'Disease of the mind' is synonymous with 'mental illness' as being a condition that affects the functions of the mind, its ability to reason, remember and understand.  There is no dispute that the mental state of Paranoid Schizophrenia is clearly a “disease of the mind”.
  1. [53]
    Every person is presumed to be of sound mind, that is sane, and to have been of sound mind at any time which comes into question until the contrary is proved.[7]
  1. [54]
    The defendant contends that he was not of sound mind when he did the things which constitute the offence of grievous bodily harm. The defendant must satisfy me of this fact, but does not have to do so beyond reasonable doubt. It is enough to be satisfied that it is more probable than not that he was not of sound mind when he did the act constituting the offence.
  1. [55]
    The critical issues for my determination on the balance of probabilities were:
  1. Did the defendant have the mental disease Paranoid Schizophrenia at the time of the offending?
  1. If so, did it deprive him of one or more of the described capacities provided in s 27 of the Criminal Code?
  1. If so, did the defendant make himself voluntarily intoxicated by cannabis which contributed to his state of mind at the time of the offending to any extent?

Did the defendant have the mental disease at the time of the offending?

  1. [56]
    The complaint described the following behaviour by the defendant:
  • And then he looked over and he said, “You’ve got to dig over there”.  I said, “What have I got to dig over there for?”  And it stopped him and he had a bit of a thought then said, “Dig up the orange rope”.  I said, “What orange rope?”  He said, “The orange rope that you tied me up with when you pulled me teeth out”.
  • He dropped onto me, using his knees into my ribcage. …  Shoving my head into the mud and screaming out, “Call on Christ and you’ll be healed”.
  • Then he was shoving his hand in my mouth, which was all muddy and everything, and he – screaming out, “Bite my fingers off and Ruby will be healed”. 
  • I was sitting – I sat up, exhausted, and he went over and got his bag.  He’s walked back and run his thumb up the middle of my forehead and said, “See, you are healed”.  Walked off, got on his motorbike and I heard it go away. … I collapsed. 
  1. [57]
    The defendant’s functions of reason and understanding were deranged or disordered consistent with his mental disease. The defendant’s utterances and behaviour before, during and after attacking the complainant were weird and bizarre. He referred to some imagined past attack of the complainant and a rope which never existed, called on Christ as to perform some exorcism, encouraged bizarre violence in the name of someone the complainant had never met, and ended in some anointment and declaration of release of the demonised complainant.
  1. [58]
    The consistent and overwhelming expert medical evidence, which is accepted by the prosecution, is that the defendant was suffering the mental disease of Paranoid Schizophrenia at the time.
  1. [59]
    Accordingly, I am satisfied on the balance of probabilities that the defendant was suffering Paranoid Schizophrenia at the time of the offending.

Did his Paranoid Schizophrenia deprived the defendant of one or more of the described capacities provided in s 27 of the Criminal Code?[8]

  1. [60]
    The next point to consider is whether that disease or infirmity took away the defendant’s capacity to know the nature and quality of the act he was doing at the time of committing the offence; or the capacity if he did know it, to know that what he was doing was wrong when judged by the standards of ordinary reasonable people; or the capacity to control his actions.
  1. [61]
    The relevant time is “at the time of doing the act”, and the deprivation must operate with respect to the particular act which constitutes the criminal offence with which the defendant is charged.[9]
  1. [62]
    A loss of the capacity to know that what he did, or omitted to do, was wrong means that because of the paranoid schizophrenia, the defendant must have been deprived of taking into account the considerations which determine whether something is right or wrong. That is, that he was unable to reason about the rightness or wrongness of the act or omission. I think that is also plainly made out.
  1. [63]
    The capacity “to know that the person ought not to do the act” is the capacity for moral judgment.[10]  A defendant must lack that capacity if he is unable to reason about the moral character of the acts in question or to make a moral judgment about it.  This is also plainly made out.
  1. [64]
    I am satisfied on the balance of probabilities that the defendant’s Paranoid Schizophrenia took away his ability to understand what he was doing, or to control his actions, or to know that he ought not do the acts of grievous bodily harm. His perception of the incident was completely false and delusional with no grounding in reality - he explained that he felt the need to defend himself when the complainant’s “eyes change shape” and became “kind of square, like a snake or a reptile” when he tried to stab the defendant with a knife.  This was followed by the bizarre violence unleashed on the complainant.
  1. [65]
    Therefore, I am satisfied that because of the Paranoid Schizophrenia, the defendant was deprived of the requisite capacities.

Did the defendant make himself voluntarily intoxicated by cannabis which contributed to his state of mind at the time of the offending to any extent?

  1. [66]
    If intentional intoxication plays any role to any extent in bringing about the defendant’s deprivation at the time of offending, the defence of insanity is not available.
  1. [67]
    Throughout his evidence the defendant maintained that he didn’t smoke any cannabis on that day of the incident, 4 September 2016.
  1. [68]
    However, there is evidence of prior inconsistent statements when the defendant admitted that he consumed cannabis. The following statements are attributed to the defendant during his post offend hospital treatment:
  1. Dr Boyle, psychiatric registrar, reported - “He admitted that he had had a cone of marijuana a few hours before the stabbing occurred and maybe a few that morning.  He says he had been smoking 30-40 cones (4.5 – 5 ounces) of marijuana every day for the past 4 weeks.  He says that prior to this he had stopped using marijuana altogether for 3-4 months prior to that.  He can’t remember why he stopped it at that time, he thinks maybe because he just didn’t like it anymore.  He says he has been smoking marijuana since he was 18”. 
  1. In contrast, Ms Zerner noted that the defendant has “used THC for many years and he grows his own – just recently he had run out and that may have caused him to be more angry than usual.
  1. According to Dr Okereke, the defendant said he abstained from the drugs over a 3-4 months of abstinence from the drug.  Then he had a cone of marijuana a few hours before the stabbing occurred and maybe a few that morning. 
  1. [69]
    I did not have the benefit of the contemporaneous notes of these statements, but it is accepted that they are contained in the hospital record, evidence and apparent admissions. At trial, the defendant could not recall telling any medical staff that he had taken cannabis on the day of the incident. 
  1. [70]
    In consultation with Dr Bala, the defendant apparently made a different assertion, telling that practitioner that he’d last smoked one week before the incident, and said – “If I had said it was a week before the offence, yeah. … Well, I wouldn’t have said one week. 
  1. [71]
    I am cautious about the defendant’s truthfulness and reliability during his acute state and treatment at the hospital. I am not assisted by the blood test taken during his hospitalisation which did not include any recorded analysis of cannabis. Clearly enough, he was still in a compromised mental state with spooking an unrealistic and delusional perception of the events. It seems to me that the defendant’s reports of regular consumption of 30 to 40 cones a day, consistent with the observations of Drs Griffith and Bala, are wildly unrealistic both in terms of quantity and cost in circumstances where his own production was exhausted. His behaviour during the offending was the antithesis of the effects of the drug. His control while riding his motorbike to the crime scene, including with the complaint as pillion, is inconsistent with intoxication. The same can be said about his control while riding to get help. Although it is possible that the plaintiff used some small amount of cannabis on the day of the incident, I am not satisfied beyond reasonable doubt it caused intoxicated to any measurable degree.
  1. [72]
    I accept Dr Bala’s re-considered view that if the defendant took cannabis – it played no part in his state of mind.
  1. [73]
    Accordingly, I am satisfied beyond reasonable doubt that the defendant did not make himself voluntarily intoxicated by cannabis, and it did not contribute to his state of mind at the time of the offending to any extent.

Verdict

  1. [74]
    For these reasons, I find the defendant for Count 1 – the offence of grievous bodily harm not guilty on account of unsoundness of mind;
  1. [75]
    I will hear the parties about appropriate orders in accordance with this verdict.

Judge D P Morzone QC

Footnotes

[1] Wedd (2000) 115 A Crim R 205 at 214.

[2]  Cf. R v E (1995) 89 A Crim R 325 at 330 per Hunt CJ.

[3] R v Holmes [1953] 1 WLR 686; R v Barry [1984] 1 Qld R 74 at 89.

[4] Walton v The Queen [1978] AC 788 at 793; R v Jennion [1962] 1 WLR 317 at 321.

[5] R v Joyce [1970] SASR 184 at 194; R v Kemp [1957] 1 QB 399.

[6] R v Falconer (1990) 171 CLR 30 at 49 & 51.

[7] R v Meddings [1966] VR 30.

[8] R v Joyce [1970] SASR 184 at 194; R v Kemp [1957] 1 QB 399.

[9] Stapleton v The Queen (1952) 86 CLR 358 at 370.

[10] R v Porter (1933) 55 CLR 182 at 189, approved in Stapleton v The Queen (1952) 86 CLR 358 at 367. Willgoss (1960) 105 CLR 295 at 301.

Close

Editorial Notes

  • Published Case Name:

    The Queen v Michael John Osborne

  • Shortened Case Name:

    The Queen v Osborne

  • MNC:

    [2020] QDC 82

  • Court:

    QDC

  • Judge(s):

    Morzone DCJ

  • Date:

    08 May 2020

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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