JKO v Queensland Police Service
[2018] QMC 4
To print this judgment please return to the case and click on the PDF icon
next to the
case name. For court use, a full PDF copy is required or preferred.
Exit Distraction Free Reading Mode
Please Note: You are about to print a copy of the onscreen
version of
this judgment. For court use, a full PDF copy of the judgment is required or preferred. Please
return to
the case for PDF printing options.
- Unreported Judgment
- JKO v Queensland Police Service[2018] QMC 4
- Add to List
JKO v Queensland Police Service[2018] QMC 4
JKO v Queensland Police Service[2018] QMC 4
MAGISTRATES COURTS OF QUEENSLAND
CITATION: | JKO v Queensland Police Service [2018] QMC 4 |
PARTIES: | JKO (Defendant/Applicant) v Queensland Police Service (Respondent) |
FILE NO/S: | ROCK 6388/17 and 6410/17 |
DIVISION: | Magistrates Courts |
PROCEEDING: | Application for dismissal of complaints – Mental Health Act 2016 (Qld) |
ORIGINATING COURT: | Rockhampton |
DELIVERED ON: | 16 March 2018 |
DELIVERED AT: | Rockhampton |
HEARING DATE: | 23 February 2018 |
MAGISTRATE: | J R Clarke |
ORDER: | Complaints dismissed |
CATCHWORDS: | Application for dismissal of charges pursuant to s 172 Mental Health Act 2016 (Qld) opposed. Impact of intoxication on mental health state. |
SOLICITORS: | Mr D. Winning for the Defendant Ms J. King for Police Prosecutions Corps |
- [1]JKO is currently 33 years old. She has endured a long history of mental illness, and has an established diagnosis of Bipolar Affective Disorder, with a differential diagnosis of Schizoaffective Disorder. She has been receiving treatment from a Psychiatrist in private practice for the last 13 years, following seven admissions to the Rockhampton Mental Health Inpatient Unit between 2003 and 2005, when she underwent Electroconvulsive Therapy.
- [2]JKO attempted suicide in 2005 following the birth of her child (whom her parents care for); she has had sporadic contact with the Mental Health Unit Acute Care Team since that incident.
- [3]Immediately following the alleged commission of the offences the subject of this application, JKO was again hospitalized as an inpatient for a period of about three weeks at the Rockhampton Mental Health Inpatient Unit.
- [4]JKO has a history of illicit drug use of cannabis, MDMA (ecstacy) and amphetamines since the age of 16. At the time of mental health assessments on 15 November and 18 December 2017 she disclosed having smoked “one point of ice” (0.1 gram of amphetamine) at lunchtime on the day before the alleged offending.
- [5]It is common ground between the defence and the prosecution JKO “was, or appears to have been, of unsound mind when the offence(s) were allegedly committed”, in accordance with s 172 Mental Health Act 2016 (Qld) (the Act); the issue is whether her voluntary ingestion of drugs, and possible intoxication contributed to any extent to her capacity. If it did, the defendant is not able to rely on s 172 of the Act for an order dismissing the charge.
- [6]
- [7]In those assessments, JKO accepted the basic allegations grounding the six alleged offences. The offences on 12 October 2017 involved taking drinks out of a fridge at a Rockhampton service station, which she started to drink, saying someone would come and pay for them, sitting to wait for that person (she thought perhaps a family member), before walking out saying she didn't have any money. She left the store and pushed over some bins, re-entered and immediately again left the store, pushing more bins over. She approached some people in a car, spoke to them and pushed a bin over in front of their car. JKO then went back into the store, striking an EFTPOS machine and breaking it, knocking a monitor off the counter, and knocking over a confectionary stand. She used a sweeping motion to knock confectionary from the stand shelving. While she did this, she was yelling, “I’ll kill everyone. I’ll knock the place down. I’ll burn the whole place down. If you want to ring the cops, ring the cops.” After going outside and sitting down, police attended and found JKO had removed a knife from her handbag and placed it beside her.
- [8]JKO was arrested, and apparently released from the watch-house at 2:30am on 13 October, 2017. At 6:30am JKO went into an inner city café, became agitated with staff, swearing and yelling at them, whilst pacing about. She threatened to stab the staff, and said she was being followed by the “hanging man.” Upon police arrival, she claimed she had a knife asking, “Would you rather die or go home to your family?” before threatening she knew the police officer’s family and would kill them. A pair of scissors was found in her handbag. Upon being arrested she asked, “What, do you want me to kill you?” She challenged police to shoot her before spitting in the direction of police, yelling she would “Fuck shit up.”
- [9]At the time of the assessments (and after her symptoms had significantly abated), JKO said on the day of the alleged offences she had seen men hanging from trees and from the bridge; she thought they may have been from the KKK; she was worried the ‘hanging man’ was following her. She said the cashier at the service station had commented on the tattoos on her chest, and immediately proposed marriage to her, before touching himself on his genitals. She said she waited for police because the cashier was a deviant and she knew she would be arrested because her father had been a “bikie” and her family had been targeted by police her whole life.
- [10]Relevantly, at the time of the assessments, JKO disclosed she had smoked the drug on 11 October because she was feeling depressed, suicidal, and had “too much thoughts going on” and wanted an escape. She said she had not smoked the drug for the past 8-9 years. She said she was in the process of hitchhiking to get out of town, and had caught a bus to the inner city, taking her pet bird, an Indian Redneck, in a cage with her. She said she had been taken to the township of Gracemere (approximately 15 kilometres west of Rockhampton) to some log cabins she used to live in, by a friend who happened to come by her. She said she went to a motel in Gracemere to get a drink of water and to wash her bird, before winding up at the service station. She gave no account about how she was going to leave town with no money; it appears she had no belongings. She gave no account how she got back into Rockhampton.
- [11]According to the assessment reports, JKO was initially found to be in a dishevelled state, exhibiting poor self-care when she was initially hospitalized. She was easily agitated and abusive, was constantly pacing, gesticulating and talking to herself in a loud fast rate. She was seen to re-organize items in her handbag and in her room. She thought people communicated with her through “vibes”, felt she had special powers and could control the weather, and could communicate with animals by sign language. Her treating Psychiatrist provided collateral information she was usually organized and maintained appropriate self-care. Her symptoms gradually improved, with a change to her pre-admission medication. I note there is no mention of JKO exhibiting drug withdrawal symptoms.
- [12]The reports relate collateral information there had been a period of disorganised behaviour observed with a marked deterioration in her mental health state for about 13 months. She had been prone to mood swings and outbursts of anger, yelling, swearing and throwing things. She had isolated herself from family support, saying she thought everyone was against her. JKO claimed to have miscarried twins (a friend had put her hand on her stomach and felt two separate heartbeats) when she went to hospital on 15 July 2017 seeking treatment for vomiting. No pregnancy or miscarriage was confirmed. Her mother noted a marked deterioration in her daughter from that time on.
- [13]Upon admission, a urinary drug screen on 13 October returned a positive reading for amphetamine. The opinion expressed in the addendum report was that whilst it was possible the use of the drug may have contributed to the deterioration in her mental health state and therefore deprive her of capacity, it was “unlikely” she was intoxicated at the time of the offences. Ultimately, the questionnaire-form reports confirmed JKO was fit for trial, but was of unsound mind, due to the deprivation of her capacity to control her actions, in the context of suffering from a mental disease. It was stated JKO was experiencing active symptoms of mental disease at the time of offending. However, the report writer also checked the boxes to indicate she was intoxicated at the time of the offences, and it was “unknown” whether that intoxication contributed to the deprivation of her capacity.
- [14]The addendum report discussed the potential effects of amphetamine use and the possible duration of adverse effects. In this case, there was no clear evidence as to the actual amount of drugs consumed, and when, apart from the disclosures made by JKO. There was no evidence to contradict those disclosures. The drug screen test was indicative only of recent drug use. The parties appeared to accept there would be no utility in cross-examining the report writer, in those circumstances. However, in my view, that should generally occur in opposed applications. The clear opinion expressed was the behaviour on inpatient admission was indicative of a manic episode of her Bipolar Affective Disorder, and not consistent with the “comedown” phase exhibited by amphetamine users. JKO is currently on a Treatment Authority (receiving treatment involuntarily) in the community.
- [15]The prosecution oppose the application to dismiss the complaints. It is argued relevant that JKO has a memory of the incidents, and provided some rationale for her offending (for example: being angry with the comments the service station cashier made). JKO waited for police, removed a knife and placed it beside her, indicative of an acknowledgment of wrongdoing. It is submitted there is no evidence she was experiencing hallucinations or delusions, as she does when her mental health state deteriorates. The thrust of the argument is her behaviour may have been the product of her use of illicit drugs and the impact upon her mental health. It is submitted the uncertainty about the precise amount of drug use would lead the court to the conclusion JKO may have been intoxicated. It is submitted “likely” the secondary effects of amphetamine use deprived her of capacity.
- [16]The Mental Health Act 2016 (Qld) which commenced on 6 March 2017 substantially changed the process of dealing with persons who were of unsound mind at the time of committing an unlawful act, or unfit for trial. Prior to the amendment of the former Act, a reference to the Mental Health Court would be made, to determine the issues the subject of this application. That process can be lengthy, involving a number of assessments. I note that one of the main objects of the new Act included diverting such persons from the criminal justice system. The process in s 172 of the Act appears to be more expedient. Since the amendment, only a “serious offence” (an indictable offence, other than a relevant offence[3]), or an “associated offence” (an offence committed at or about the same time as an indictable offence), is subject to referral to the Mental Health Court.[4]
- [17]Section 172 of the Act now confers the Magistrates Court with power to determine issues of unsoundness and unfitness.The provision provides a discretion to dismiss a complaint if:
- (a)a complaint for a simple offence is to be heard and determined by a Magistrates Court; and
- (b)the court is reasonably satisfied, on the balance of probabilities, the person charged…
- (i)was, or appears to have been, of unsound mind…or
- (ii)is unfit for trial.
- [18]Historically, the civil standard of proof on the balance of probabilities applied to proceedings in the Mental Health Court. In R v Schafferius[5],the Court of Criminal Appeal confirmed the standard of proof was not beyond reasonable doubt: the proceedings called for the application of the Briginshaw[6] principle, the degree in a civil proceeding, varied according to the gravity of the fact to be proved. In Kamali[7]the Court confirmed that Schafferius should not be read as excluding a finding of unsoundness of mind in all but the clearest of cases.
- [19]There does not appear to be another legislative provision in Queensland requiring a court to be “reasonably satisfied” on the balance of probabilities, in making a determination. No guidance is derived from the Explanatory Notes or second reading speech to the Act. However, an analogous test is provided in the Health Practitioner Regulation National Law (NSW). In Health Care Complaints Commission v Sun[8]the New South Wales Civil and Administrative Tribunal appeared to accept submissions by the HCCC (referring to Gianoutsos v Glykis (2006) 65 NSWLR 539) the use of “reasonably satisfied” does not imply that a higher standard of proof is required. In HCCC v Sun and in HCCC v Ake[9] the Tribunal referred to the Briginshaw principle, confirming (by reference to a decision of the High Court in the latter case) the test is concerned with the quality or sufficiency of the evidence necessary to discharge the standard of proof.[10] I have had regard to those decisions in making a determination in this case.
- [20]In the course of argument, I was directed to s 109 of the Act. The provision draws from and repeats the operation of s 27 (Insanity) and s 28 (Intoxication) of the Criminal Code. However, by operation of s 105 of the Act, it is unclear whether
s 109 actually applies to the process of summary dismissal of complaints. It appears to apply exclusively to references to the Mental Health Court, under Chapter 5, or in respect of indictable offences under Chapter 6. Accordingly, the operation of s 109 seems excluded from applying to the provisions in Part 2 of Chapter 6, which contains s 172. In any event, I have had regard to the Criminal Code provisions in consideration of this application.
- [21]I accept the opinions provided in the assessment reports. I accept there is clear evidence JKO suffers a mental illness, having regard to the definition in s 10 of the Act. I am reasonably satisfied that upon inpatient admission, when she was found to lack capacity to consent to treatment, there was a direct nexus between her mental illness and her observed behaviours. I accept it took some time for her symptoms to abate, with treatment. I am reasonably satisfied those observed behaviours were not consistent with the continued effects of amphetamine intoxication.
- [22]Whilst it is rational to infer illicit drug use may exacerbate the symptoms of a person’s already damaged mental health, there is no clear evidence that is what happened here. JKO exhibited signs of being unwell for a considerable period of time; she disclosed that pressure was the catalyst that led to her decision to take drugs.
- [23]On behalf of the prosecution, Ms King also helpfully referred me to R v Clough[11], (which concerned a judge only trial for murder of the defendant’s wife), to highlight a finding in that case, supported by the expert opinion of four psychiatrists, as to the “significant” and “continued effect” Mr Clough’s voluntary intoxication by methylamphetamine had on his pre-existing psychotic illness. It seems the psychiatric opinion in that case was that ‘but for’ the intoxication, he would not have been deprived of his capacity, precluding the operation of s 27 Criminal Code. With respect, I do not consider the evidence in this case to be of that compelling calibre. In this case, the opinion expressed as to intoxication was, at best, equivocal.[12]
- [24]I am reasonably satisfied, on the balance of probabilities JKO was, or appeared to be, of unsound mind at the time of committing the offences. In my view, it is more probable her capacity was deprived due to the deterioration in her mental health state, evidenced by her increasingly disorganized behaviour, isolation, poor self-care and stated delusions. I accept the opinions in the reports that JKO was actually deprived of the capacity to control her actions, as a consequence of her mental disease.[13]
- [25]In my view, there is no clear evidence she was intoxicated by the ingestion of amphetamine at the time of the offences, or still effected at that time, at all or to the extent that precludes the operation of s 27 Criminal Code. I am reasonably satisfied it would be appropriate in the exercise of discretion to make an order dismissing each of the six complaints.
Footnotes
[1] Exhibits 1, 2 and 3 (as amended).
[2] Magistrates Court Practice Direction 1 of 2017.
[3] Section 552BA Criminal Code.
[4] A Commonwealth offence is not subject to referral – s 107. See also In the matters of Kenneth Charles Rankin; Sunil Kumar; Benjamin James Sciortino [2017] QMHC 8.
[5] (1987) 1 Qd R 381 at 383.
[6] Briginshaw v Briginshaw (1938) 60 CLR 336; Rejfek v McElroy (1965) 112 CLR 517.
[7] (1999) 106 A Crim R 269 at 273; see also Dar v DPP (Qld) & Anor [2008] QCA 309.
[8] [2016] NSWCATOD 123.
[9] [2018] NSWCATOD 7.
[10] Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449.
[11] [2010] QCA 120.
[12] See also In the Matter of SAB [2017] QMHC 2 at [56]: “While the meaning of the word intoxication is a question of law, whether in any case a person is intoxicated is a question of fact and psychiatric opinion will be very relevant to the determination of that fact.”
[13] See Attorney-General (Qld) v Bosanquet & Ors [2012] QCA 367; Re SAM [2003] QMHC 3.