Re KAB[2015] QMHC 2

MENTAL HEALTH COURT

1. [1]
   This is a reference in relation to KAB who was born in 1966.  He is referred to this Court on one charge of attempted rape said to have happened on 27 October 2013.  KAB has no relevant criminal history.
2. [2]
   KAB has a long history of psychotic illness, currently diagnosed as schizoaffective disorder, which is apparently episodic in nature and complicated by his use of illegal drugs and poor compliance with prescribed medication.
3. [3]
   At the time of the offending he was running a small corner shop.  He lived in a flat at the back of the shop with a woman named M.  Their relationship broke down, and on the day in question KAB was assisting M to pack her belongings to move out.  M’s daughter, aged 16 years, and granddaughter, aged seven years, were helping pack.  M had care of her granddaughter, and had done since she was born.  M’s daughter was her granddaughter’s aunt.

Police Brief

4. [4]
   The police material is to the effect that M noticed that her granddaughter had been inside with KAB for around 40 minutes.  She sent her daughter inside to get her granddaughter and her daughter came running out of the house saying that KAB had his penis in the granddaughter’s mouth.  At the time KAB denied this, although the next day he told M twice that it was not his fault. 
5. [5]
   The 16 year old daughter told police that when she went in to find the granddaughter, the granddaughter and KAB were laughing in KAB’s bedroom.  The TV was on and the pair were by the bed.  KAB had one foot on the floor and one foot on the bed.  He had shorts around his ankles and was otherwise naked.  The granddaughter was kneeling on the floor in front of him, “really close”.  The granddaughter’s mouth was about 20 centimetres from KAB’s penis.  She looked upset, as though she were trying to push KAB away.  When KAB saw the daughter, he grabbed a blanket and covered his private parts.  The daughter took the granddaughter outside and the granddaughter said she did not know what was happening and was not allowed to say because she would get in trouble from KAB.  She began to cry and demonstrated clawing at the daughter’s vaginal area in response to questioning.  The daughter asked is that what KAB had done to her, and the granddaughter replied yes.

Record-of-Interview

6. [6]
   Two days later the police interviewed KAB.  The interview lasted nearly one hour.  I have watched a video recording of it and I also have a transcript (exhibit 13 on this reference).  KAB is appropriately dressed in the interview.  He remains calm throughout the interview, his attitude is responsive and reactive throughout the interview.  He turns to the person questioning when he is asked questions.  He answers appropriately to the sense of the questions, including his use of gestures.  He is patient through the rather lengthy introductory parts of the interview, which occur a second time after a break is taken by the interviewing police.  When he is asked non-leading questions during these introductory parts, to see that he understands what he is being told, it is clear from his answers that he does understand.  He explains matters logically, and indeed well, to the police, for example, the relationship between M, her daughter and her granddaughter, and the lay-out of the flat where the events allegedly took place.
7. [7]
   He tells police it is two weeks since he took his antipsychotic medication.  He describes it as an “as required” medication (which it is not).
8. [8]
   He gives a detailed version of events in which he responds to flirtatious signals given by the seven year old girl and is led into his bedroom where the seven year old girl pulls his pants down and her pants down.  Throughout the interview he consistently gives the police information which shows he knows that he was in a compromising situation which was wrong.  He says things such as: “I didn’t know what to do”; “I haven’t had much experience with kids”; “she had other ideas”; “I wasn’t going to be part of this”; “I didn’t know what to say”; “I find it a bit uncomfortable”; “I haven’t developed any ability with kids”; “I didn’t know what she had in mind”; “I was just trying to be kid gloves with her”.  When he describes the daughter’s reaction upon entering his bedroom (freaking out) he says that that was “understandable from what she saw”.  He says at the time he was thinking “how am I going to fucking explain this”.  As well, he expressly describes the child’s flirting with him as “inappropriate sexual behaviour” more than once during the interview.  Further, when police ask whether or not the child has engaged in inappropriate sexual behaviour before the date of the alleged attempted rape he says that she has, and gives several examples.  In giving the examples, he makes it quite clear he understands why what he describes is sexually inappropriate between an adult and a child (and it is).
9. [9]
   When he is asked to draw a diagram of the flat he does so and indicates, spontaneously, how the doors and windows were all open when the daughter and M were in the yard.  The implication seems to be that he was not secreting himself away, but that the whole house was open.  He then makes this express saying, “The whole place was open – if I was that way inclined I’d be mad to do it”.  When police ask him what he was wearing at the time of the alleged offence, he explains that he was only wearing stubbies – no shirt and no underpants.  He is obviously aware of the poor impression that this might make, and explains his lack of clothing by saying it had been so hot lately, and then further, that he had just moved up from [redacted] and had not acclimatised to the [redacted] climate.
10. [10]
    To my mind he raises three topics that may (or may not) be regarded as out of the ordinary:

1. (a)
    That he lost his daughter to suicide as a result of sexual abuse she received in foster care.

2. (b)
    That people are spreading rumours that he is a pedophile or a pervert in order to damage his business because they did not want his corner store to be established where it was.  There is some suggestion that at least M’s ex-boyfriend is involved in this, but he is not dogmatic about this, saying, when pushed, that he did not want to accuse anybody of anything.

3. (c)
    That the child initiated sexual behaviour prior to the day, and on the day, of the alleged rape.  As he is asked to repeat his version of events, the sexualised behaviour he describes becomes more elaborate.

Initial advice from Assisting Psychiatrists

11. [11]
    This matter first came before this Court on 16 March 2015.  On the advice of my assisting psychiatrists, I adjourned the matter so that the reporting doctors could be cross‑examined.  On that date Dr Reddan advised me that, while KAB was admitted to hospital very unwell some 11 days after the offending, she was concerned as to whether there was any evidence that he was deprived of any relevant capacity at the time of the offending.  She noted that KAB had a history of sexual disinhibition when unwell, but noted that this alleged offending was not undertaken in front of anybody else.  Her view was that KAB’s relapse into illness was almost certainly evolving as at the date of the alleged offending but, on that particular day, there was no evidence that he was deprived of any relevant capacity, although those capacities may have been impaired.  She was concerned that the record-of-interview did not suggest KAB was in anywhere near the same state of mind as he was on admission.  She was concerned that the two reporting psychiatrists had not taken into account the evidence in the record‑of-interview in forming their opinions.
12. [12]
    Dr Harden advised that the record-of-interview did not show any evidence of mania; formal thought disorder, or agitation.  He said there was a possibility that what was demonstrated in the record-of-interview was what he described as “mild persecutory ideas”.  He also thought that the account KAB gave in the record‑of‑interview did not involve any psychotic elements.  He thought that the Court was lacking any firm evidence that KAB was of unsound mind at the time of the alleged offending.
13. [13]
    The matter came back before me on 28 May 2015.  Both Dr Mills, who gave a report under s 238 of the Mental Health Act 2000 (the Act), and Dr Andrzejewski were cross‑examined.

Dr Mills’ Evidence

14. [14]
    Dr Mills made a report pursuant to s 238(3) of the Act.  This is a report made as soon as practicable after a forensic patient is admitted, and it is a report made to the administrator of the health service.  Reports under s 238 can be very valuable in this Court.  But it must be acknowledged that they are not the type of expert report which the Court commissions under s 422 of the Act. 
15. [15]
    Dr Mills had an extended interview with KAB on 26 November 2013.  KAB gave Dr Mills a version of events broadly similar to that which he gave police in the record‑of‑interview, except that he describes more thoughts which might amount to paranoid thinking about the role of the 16 year old daughter in first talking to the seven year old granddaughter (before the alleged offending) and then sneaking into the bedroom during the alleged offending, and not being at all alarmed by what she then saw.  KAB told Dr Mills that he saw the whole incident as a set-up by the 16 year old daughter because she did not like him being in a relationship with her mother.
16. [16]
    Dr Mills details KAB’s long history of mental health problems dating back to his first episode of psychosis at age 19.  There is no doubt that KAB suffers from some form of psychotic illness, whether it is schizoaffective disorder or schizophreniform psychosis, or paranoid schizophrenia.  She notes that on an occasion in 2004 KAB was sexually disinhibited with female hospital staff whilst an in‑patient. 
17. [17]
    Dr Mills records that KAB was admitted as an in-patient on 8 November 2013, at which time he was extremely thought disorganised and was sexually disinhibited towards his mother on initial interview.  KAB spent the first few days of his admission in his high dependence unit.  She describes:

“He was noted at this point in time to be extremely unwell, was incoherent in speech, expressing paranoid ideation about his partner [M] and delusional ideas about time lords hunting his grandmother and there were periods of echolalia and making guttural noises.  His mental state improved markedly over the next few days …”

This picture is clearly very different from the evidence contained in the record‑of‑interview.

18. [18]
    KAB’s partner M described to Dr Mills a deterioration in his mental state of at least two weeks duration prior to the alleged offence, with increasingly odd paranoid and erratic behaviour, which she said caused her to move out.  She described that during that time KAB stopped taking his antipsychotic medication and began smoking cannabis.
19. [19]
    Dr Mills concludes that KAB was in a period of relapse of his mental illness at the time of his alleged offending.  She says, “Whilst this is likely to have been initiated by misuse of substances and non-compliance with medication, I do not believe that intentional intoxication is the only factor at play in this situation …”
20. [20]
    As to deprivation of capacity, she says:

“There is clear evidence of a deteriorating mental state at the time of the offence and it is therefore reasonable to consider that [KAB] may have been impaired in his ability to reason logically and rationally at the time of the alleged acts and lacked the capacity to understand what he was doing in relation to the offence or control his actions.” (my underlining)

She notes that his thinking involved conspiracies against him by his partner and the children at the house, that he did not have a history of offending against children, and that such offending was against what he stated were his beliefs.  She says that the symptoms he displayed on admission to hospital support “this theory”.

21. [21]
    She says that it is possible that the dispute of facts KAB makes may arise from illness but concludes, “Given the dispute of facts in this case, it is difficult to come to a definite conclusion regarding unsoundness of mind and I feel the Mental Health Court should be able to examine this issue further.  It is my opinion however that [KAB] was acutely psychotic at the time of the offences and that there is probably a direct relationship between the illness and the alleged offence.”
22. [22]
    I would make two comments:

1. (a)
    Dr Mills’ description of the effect of intoxication in this report is sufficient to deprive him of the defence of unsoundness of mind – see the definition in the dictionary schedule of the Act.  It is clear that her view is that intentional intoxication with cannabis played some part in bringing about the state of mind she attributes to KAB at the time of the alleged offending.

2. (b)
    Dr Mills’ report is ambiguous about whether or not he was deprived of any capacity at the time of the alleged offence.  The question for this Court is whether or not there was a deprivation of any of the three relevant capacities, not whether the capacities were impaired, and not whether there was a relationship between the illness and the offending.

23. [23]
    At the time of her s 238 report Dr Mills did not have a copy of the police record‑of‑interview (t 1-38).  This is not a criticism.  I would not normally expect a doctor giving a report under s 238 to have such material.  She had it by the time she gave evidence.  Her evidence was that she saw signs in the police interview that KAB was relapsing into illness at the time of the interview.
24. [24]
    In her evidence to the Mental Health Court Dr Mills still could not say whether or not the disputes of fact raised by KAB as to his offending resulted from his illness – tt 1‑40, 1‑43‑45 and 1-48.
25. [25]
    Dr Mills’ view was that her uncertainty as to this dispute meant that she was not able to offer a definitive view as to deprivation of capacity – t 1-41 ll 5-15.  She did not think he was deprived of the capacity to control his actions – t 1-42.  She did give a tentative opinion that if the Court found that the act was committed as alleged (which is not a function of this Court) she thought KAB would not have understood the wrongfulness of his action at the time of the offending – t 1-41 ll 5-20, see also t 1‑42.  But when questioned as to this, she again came back to her uncertainty as to the dispute of fact – t 1‑43.  Her understanding of the relevant capacities seemed blurred – t 1‑43 – and when I attempted to explore that with her further, she again came back to dispute of fact – t 1‑44 ll 10-20 – and said that she could not further explain – tt 1‑44-45, and see also at t 1-48.
26. [26]
    On questioning from the assisting psychiatrist Dr Reddan, Dr Mills accepted that the statement, “how am I going to fucking explain this” did not “go along with” her idea that KAB was deprived of the capacity to understand what he was doing – t 1‑50.  She could not explain how the statement, “[Name] freaked out, which is understandable from what she saw” was consistent with being deprived of the capacity to understand what he was doing.
27. [27]
    In those circumstances I cannot see that Dr Mills’ evidence, even taken alone, supported the idea that KAB was deprived of one of the relevant capacities at the time of offending.  Further, it did not support the idea that the dispute of fact which KAB raises as to the offending arises from his illness.  As to this Dr Mills’ evidence was that she simply could not say.  Lastly, her report is to the effect that KAB did not have a defence of unsoundness because of intoxication.
28. [28]
    As I am taking the unusual step of publishing a written decision in this matter, I will make the statement that it is important for doctors working in the forensic mental health system to properly acquaint themselves with the legal concepts which are relevant to unsoundness of mind if they are to assist this Court in presenting their clinical findings.

Dr Andrzejewski’s Evidence

29. [29]
    The Court commissioned a report from Dr Maria Andrzejewski under s 422 of the Act.
30. [30]
    Dr Andrzejewski’s report does not come to terms with the issues made relevant by the Act in relation to intoxication. 
31. [31]
    Her report is similarly unclear in relation to unsoundness of mind.  She says that KAB was psychotic at the time of the alleged offending, but does not explain why she says that.  She then says that “… the only aspect of the illness that may directly relate to the alleged offence is the belief that the young child was actively gesturing towards him in a sexual manner”.  This seems based on a wrong understanding as to the test for unsoundness of mind.  She then says that the thoughts he reports as to the young child gesturing towards him in a sexual manner may be the thoughts of someone who commits an offence in the absence of psychotic symptoms, and she finds it problematic to know whether or not KAB would have such thoughts in the absence of psychosis.  Again, these statements are not relevant to the legal framework which I must consider.  She concludes that the misinterpretation of the victim’s behaviour is part of a broader delusional system but does not explain why she so concludes. 
32. [32]
    Dr Andrzejewski states her opinion that KAB was “in a state of unsoundness of mind” at the time of the offending but does not explain why, except to say that he was reportedly erratic, disorganised and paranoid subsequently (presumably on admission).  She goes on to say that he was deprived of the capacity to understand what he was doing as his delusional system appears to have incorporated the alleged victim, and then concludes that KAB was also deprived of the capacity to control his actions and know that he ought not do the act but gives no reason at all for those opinions.
33. [33]
    It became clear on direct questioning that Dr Andrzejewski did not understand the legal test for unsoundness of mind, and did not appreciate that there was a difference between deprivation and impairment of a relevant capacity – t 1-12.
34. [34]
    Dr Andrzejewski had not seen the video recording of the record-of-interview before giving her report.  I would expect that a psychiatrist giving a s 422 report would have asked for and looked at that highly significant evidence.  She said that once she did see it, her concerns as to whether KAB was manic at the time were put to rest – ie., he was not manic in the video.  Otherwise she said it did not change her view – t 1-6.  She referred to the parts of the interview in which KAB spoke about his suspicions that people were trying to harm his business, which she described as disorganised and disordered in thought and indicative of psychosis – t 1-7.  She said that when he was asked questions by the police he gave “completely different information which was an example of somebody being disorganised in their thoughts and not following the conversation” – tt 1‑7-8. 
35. [35]
    My own view is that while KAB’s answers to the police may well have portrayed some paranoid thinking, his answers were not non-responsive to police questions in general, or on this topic.  He was responding as to how he thought the events police were interested in had come about.  That is, while the thinking may have been “mildly persecutory”, to use Dr Harden’s words, KAB was not giving “completely different” information to that which police were seeking.  He was following the conversation.  The picture KAB presents in the record-of-interview is so different from that described by the hospital notes after admission that I cannot understand how seeing the behaviour in the interview two days after the offending would not change the view of anyone who was bringing an independent mind to bear on the issues relevant to KAB’s state of mind at the time of the offending.  That Dr Andrzejewski swore it did not change her views may indicate that she was focusing only on whether or not KAB was ill at the time of the offending, rather than whether or not he was deprived of relevant capacities at the time of the offending.
36. [36]
    In her evidence to the Court Dr Andrzejewski explained that she thought KAB’s interpreting the victim’s behaviour as, for example, wanting him to lick her ear – t 1-10 – were signs that he was delusional.  She thought KAB’s recitation of sexualised behaviour towards him by the victim was delusional.  She thought KAB’s version about communications between M, her ex-partner, and people who did not want him to run the shop, and the sexual offending, was delusional but not well-organised – t 1-11.  When pushed, she said his delusion was that the victim was flirting with him – t 1-35.  Even accepting that that was correct, Dr Andrzejewski could not explain how that deprived KAB of any relevant capacity – t 1-12.
37. [37]
    Assisting psychiatrist Dr Reddan asked questions of Dr Andrzejewski to elicit that relapses of psychosis generally occur in a progressive way over, say, a period of weeks. 
38. [38]
    Dr Reddan’s questioning showed that Dr Andrzejewski had no basis for saying that KAB was deprived of the capacity to control his own actions – tt 1-29-30.  And I think that is clearly right both on KAB’s version of events and the version of events of the daughter and granddaughter.  As soon as the daughter entered the room KAB desisted from his behaviour and attempted to cover his nakedness and, on his version, began to think of how he could explain himself. 
39. [39]
    Dr Reddan put to Dr Andrzejewski that statements of the type outlined at [8] showed that KAB did in fact understand right from wrong at the time of the offending.  She would not accept that, but did concede that she was speculating and her attempts to explain herself were unconvincing – see for example t 1-31.
40. [40]
    Dr Andrzejewski did not appear to me to be able to justify the conclusions which she presented to the Court.  I do not understand the basis of her opinions.  Nor did the assisting psychiatrists – Dr Reddan at t 1-54 and Dr Harden at t 1-57.

Final Advice from Assisting Psychiatrists

41. [41]
    Dr Reddan’s view was that as at 27 October 2013 KAB was beginning to relapse into another episode of his psychosis, but she could find no compelling evidence that any dispute of fact arose from a mental illness – t 1-53.  As to unsoundness, Dr Reddan’s advice was that Drs Mills and Andrzejewski had not adequately considered the difference between KAB’s mental state at the time of the offence and his mental state at the time of admission 12 days later, in circumstances where there was a major deterioration in KAB’s mental state between the time of the record‑of‑interview and his admission – t 1-54.
42. [42]
    I raised with Dr Reddan my view that, even if Dr Andrzejewski’s idea that KAB had a delusion that the seven year old victim of the offending was flirting with him, that did not explain how he was deprived of the capacity to know that attempting to rape her would be wrong. Dr Reddan agreed substantially with that – t 1‑55 – and gave her view that there was no evidence of any delusion involving a set‑up by the victim of the offending, her family or others.  Her view was that, while KAB may have had paranoid ideas, or even overvalued ideas, he was not delusional at the time of the offending.
43. [43]
    Dr Reddan’s view was that the dispute of fact by KAB did not arise from illness – t 1-56. 
44. [44]
    Dr Harden’s view was that the reporting psychiatrists had not provided any logical clinical reasoning to back up the opinions they offered to the Court, saying, accurately I think, that they had “responded to questions about capacity with answers about illness” and “conflated the idea of becoming unwell with the idea of necessarily lacking capacity” – t 1-57.  Dr Harden found the evidence of the reporting psychiatrists unhelpful.  His view was that the strongest view available on the evidence was that there may have been impairment of some relevant capacities but he was not sure that there was even that – t 1‑57.
45. [45]
    Dr Harden’s view was that there was no evidence that the dispute of fact arose from illness.

Expert Evidence

46. [46]
    The role of an expert giving evidence in Court was extensively examined in Makita (Australia) Pty Ltd v Sprowles.^[1]  Heydon JA cited Davie v The Lord Provost, Magistrates and Councillors of the City of Edinburgh^[2] as follows:

“Expert witnesses, however skilled or eminent, can give no more than evidence. They cannot usurp the functions of the jury or Judge sitting as a jury … Their duty is to furnish the Judge or jury with the necessary scientific criteria for testing the accuracy of their conclusions, so as to enable the Judge or jury to form their own independent judgment by the application of these criteria to the facts proved in evidence. The scientific opinion evidence, if intelligible, convincing and tested, becomes a factor (and often an important factor) for consideration along with the whole other evidence in the case, but the decision is for the Judge or jury. In particular the bare ipse dixit of a scientist, however eminent, upon the issue in controversy, will normally carry little weight, for it cannot be tested by cross-examination nor independently appraised, and the parties have invoked the decision of a judicial tribunal and not an oracular pronouncement by an expert.”

47. [47]
    In Davie it was also said:

“The value of [expert] evidence depends upon the authority, experience and qualifications of the expert and above all upon the extent to which his evidence carries conviction …”

48. [48]
    In Davie it had been argued that, in the absence of contradictory expert opinion, the Court was bound to take the opinion of the one expert who was called as conclusive.  That argument was rejected, “as constituting an unwarrantable encroachment on the judicial function of the Court”.
49. [49]
    Similarly in Ramsey v Watson^[3] by the whole of the High Court:

“A qualified medical practitioner may, as an expert, express his opinion as to the nature and cause, or probable cause, of an ailment.  But it is for the jury to weigh and determine the probabilities.  In doing so they may be assisted by the medical evidence.  But they are not simply to transfer their task to the witnesses.  They must ask themselves ‘Are we on the whole of the evidence satisfied on a balance of probabilities of the fact?’.”

50. [50]
    I mention these matters because I reject the evidence of Dr Andrzejewski in this matter.  I am very conscious that in doing so I am rejecting the evidence of the only independent reporting psychiatrist to the Court.  This is not something which I do lightly, particularly where the evidence of Dr Mills (the treating doctor pursuant to s 238 of the Act) was equivocal, but did not necessarily contradict Dr Andrzejewski’s opinions.
51. [51]
    One of the matters emphasised in Makita is the duty of the expert to “furnish the trier of fact with criteria enabling evaluation of the validity of the expert’s conclusions” – p 729.  Heydon J cites Sir Owen Dixon in an extra-judicial address as saying, “Courts cannot be expected to act upon opinions the basis of which is unexplained” – p 730.^[4]  In this matter, I do not think that either Dr Mills or Dr Andrzejewski properly explained the basis for their opinions in a way which enabled me to judge their validity or value.
52. [52]
    It is worth emphasising the fact that the role of an expert in the Mental Health Court is not just to give an opinion, but to explain why the expert holds that opinion, so that the Court can judge whether or not it accepts the opinion; prefers another opinion; does not think that the opinion should be accepted because it does not accord with the whole of the evidence, or is otherwise not credible.  This is the forensic process.  The function of the Mental Health Court is to determine whether people, sometimes charged with very serious offending, as KAB is, ought to face the criminal courts in relation to that alleged offending, or ought to be placed on forensic orders as a consequence of unsoundness of mind at the time of the offending.  Either way, the consequences for the person the subject of a reference are very serious.  Doctors giving evidence in the Court must understand that one of the main purposes of the Court proceeding is to scrutinise psychiatric opinion with a rigour appropriate to the seriousness of the Court’s function.  The Court is necessarily very dependant on reporting psychiatrists.
53. [53]
    There is a particular set of legal principles about expert evidence led before a jury in criminal cases.  I think these are relevant to the considerations I undertake, particularly because the task of this Court on a reference is conceptually very much related to the criminal process.  However, it must be recognised that this Court is an inquisitorial court with power to commission reports itself, and to take advice from assisting psychiatrists.  Furthermore, this Court acts on the balance of probabilities, and no party bears the onus of proof.  In those respects the task which this Court undertakes is different from a jury acting where there is a clearly defined onus and a standard of proof beyond reasonable doubt.  Bearing those matters in mind, I turn to examine the cases concerning uncontradicted medical evidence before a jury.
54. [54]
    In R v Sanders^[5] Watkins LJ, of the English Court of Appeal summarised two principles apparent from a series of cases^[6] which he had just analysed.

“… if there are no other circumstances to consider, unequivocal, uncontradicted medical evidence favourable to a defendant should be accepted by a jury and they should be so directed.  The second is that where there are other circumstances to be considered the medical evidence, though it be unequivocal and uncontradicted, must be assessed in the light of the other circumstances.”

That was a case dealing with psychiatric evidence as to abnormality of mind said to be sufficient to found a finding of diminished responsibility. 

55. [55]
    There is an Australian case, R v Hall,^[7] to the same effect.  That was a case where medical evidence was led in support of the criminal defence of automatism, and whether or not the defendant could form the requisite intent.  In that case the defence called a doctor who was cross-examined “at great length”, but the Crown called no expert evidence.  The New South Wales Court of Criminal Appeal held, “Juries are not bound to accept and act upon expert evidence.  Nevertheless they are not entitled to disregard it capriciously.”  The Court noted that these two propositions derived from the line of English cases dealing with insanity and diminished responsibility.  They cited Lord Goddard CJ in R v Rivett,^[8] “… it is for the jury and not for medical men of whatever eminence to determine the issue”.  They cited the same judge in Matheson (above), “If there are facts which would entitle a jury to reject or differ from the opinions of the medical men, this Court would not, and indeed could not, disturb their verdict, but if the doctors’ evidence is unchallenged and there is no other on this issue, a verdict contrary to their opinion would not be a ‘true verdict in accordance with the evidence’”.  The Court cited Walton (above):

“These cases make it clear that upon an issue of diminished responsibility the jury are entitled and indeed bound to consider not only the medical evidence but the evidence upon the whole facts and circumstances of the case.  These include the nature of the killing, the conduct of the defendant before, at the time of and after it and any history of mental abnormality.  It being recognised that a jury on occasion may properly refuse to accept medical evidence, it follows they must be entitled to consider the quality and weight of that evidence.”^[9]

56. [56]
    In this case I am entitled to reject Dr Andrzejewski’s expert opinions.  They were not explained in a way which allowed me to assess their validity.  Dr Mills’ opinion was different to Dr Andrzejewski’s opinion.  Examination by barristers appearing in the case, and also by the assisting psychiatrists, revealed no logical basis for Dr Andrzejewski’s views, and further that the views were not expressed having regard to the relevant legal tests.  In my view Dr Andrzejewski’s opinions were based too much on KAB’s mental state at the time of admission rather than his mental state at the time of interview.  Furthermore, I do not think that in truth she directed her mind to deprivation of any relevant capacity, rather she looked to identify a relapse in illness without a rigorous enquiry as to deprivation, see particularly t 1-13.  The functions of the assisting psychiatrists under the Act include advising me on the meaning and significance of clinical evidence – s 389(1)(c)(i).  The advice of my assisting psychiatrists in this case was that I should not be confident in Dr Andrzejewski’s opinions.

Disposition

Dispute of Fact – s 268

57. [57]
    In my view, s 268 of the Act prevents me making a finding of unsoundness because KAB disputes the facts of the offending in a way which must raise, to use the infelicitous words of s 268, a reasonable doubt as to whether or not he committed the offence charged. 
58. [58]
    My view is that the doubt that KAB committed the offence does not exist only because of his mental condition.  In relation to that, Dr Mills simply could not say.  Neither of my assisting psychiatrists thought there was any evidence that the dispute existed only as a consequence of KAB’s mental state.  Dr Andrzejewski did express the opinion that the disputed account given by KAB “indicates probable ongoing psychosis interfering with his ability to adequately and clearly consider the evidence before him” – see her report.  I reject her opinion.  For all the reasons discussed above, I do not have any comfort or persuasion that Dr Andrzejewski’s opinion is properly based on the evidence available to her, or to this Court.  Dr Andrzejewski said that it was very common in psychosis for someone to completely misinterpret what had happened and that she thought KAB’s perception of events surrounding the offending was different to the child’s version of events because of his illness – t 1‑14.  This is very general evidence and based on Dr Andrzejewski’s speculation about KAB’s mental state on the day of the alleged offending – tt 1‑31‑33.  I find that unconvincing because it is so based on observations from his admission rather than at the time of the record‑of‑interview.  Also, it is different to the view she gives in her report: she there attributed the dispute of fact to contemporary or ongoing psychosis interfering with KAB’s ability to consider evidence, rather than psychosis at the time of the offending.  This shift is not inspiring of confidence.  The opinion in the report could not be sustainable now when KAB is fit for trial. 
59. [59]
    KAB told Dr Andrzejewski that his father was sexually abusive towards him and his siblings.  KAB told Dr Mills that his wife was sexually abusive towards his own children.  He told Dr Andrzejewski that his wife was physically abusive to his children.  KAB told police in the record-of-interview that foster carers were sexually abusive towards his children and Dr Andrzejewski records that hospital notes suggest KAB’s son was involved in the sexual abuse of KAB’s daughter whilst they were in foster care.  Dr Andrzejewski gives the opinion that KAB’s positive description of his physically violent and sexually abusive father indicates “at best confusion around issues of violence and sexual abuse and at its most concerning, a positive endorsement of cognitions supporting sexual abuse”.  I am concerned that KAB has made various statements over time about sexual abuse, within his own nuclear family, and of his children, so that there is evidence which may mean, as the extract from Dr Andrzejewski’s report indicates, and as Dr Reddan proposed in a question to Dr Andrzejewski – t 1-26 – that KAB may have difficulty properly interpreting appropriate behaviour between children and adults, quite apart from any psychotic illness he suffers. 
60. [60]
    I have regard to the statements which KAB allegedly made to M the day after the offending – that it was not his fault.  I have regard to the record-of-interview and KAB’s appearance and demeanour in that, compared to the description of his psychotic state after admission. 
61. [61]
    I note that the dispute, which was raised as early as the police interview,^[10] was only as to matters which incriminated him; that is, the area of disputed fact was small but, on KAB’s version, he was the innocent victim of a flirtatious seven year old.  He never gave any version of events which was not exculpatory.  Further, there was nothing in the dispute which one could identify as odd, bizarre or clearly psychotic – t 1‑57.  I note that the assisting psychiatrists’ view was that neither of these matters assisted them.  Nonetheless, having regard to all the evidence, they are matters which influence me as to my decision that the dispute of fact by KAB was not one which arose from his illness.

Standard of Proof – s 268

62. [62]
    I will record that I have made my decision about the applicability of s 268 on the balance of probabilities, but requiring a high degree of proof bearing in mind the seriousness of the subject matter with which I am concerned.  In my view s 405(2) of the Act does not require any different approach.  That subsection provides that I am to decide matters on the balance of probabilities, subject to s 268.  It does not prescribe a different standard of proof for matters falling within s 268.  It is necessary to look to s 268 and, if it prescribes a different standard of proof, to apply it.
63. [63]
    In my view s 268 does not require that I apply any different standard of proof.  The language of s 268(1) is very unfortunate because it uses words – reasonable doubt – which bring to mind the standard of proof in a criminal trial – beyond reasonable doubt.  It is absurd to think that the legislature meant that this Court ought deprive a person of an unsoundness defence – and send them for trial in the criminal process – if the Court was satisfied in the same way a jury must be satisfied that there was a reasonable doubt that the person committed the alleged offence.  Sending such a person for trial would be otiose, a proper verdict would always be one of acquittal.  Instead, s 268(1) prevents this Court making a finding of unsoundness where the evidence before it is such that there is an uncertainty as to whether or not the person has acted as alleged by the Crown.  The scheme of the legislation is that in such a case a jury should determine whether or not the person has committed the offence (unless this Court determines the person is not fit for trial).  Generally that uncertainty is raised in this Court when the person the subject of the reference denies the alleged offending, as KAB does in this case.
64. [64]
    In my view s 268 does not prescribe that the question as to whether or not there is uncertainty that the subject of a reference has committed the alleged offence is to be determined according to any particular standard of proof.  The words “subject to section 268” in s 405(2) appear to have been included by the legislature in a mistaken view of the effect of s 268.

Unsoundness

65. [65]
    Were I to address the question of whether or not KAB was of unsound mind at the time of the offending, I would find that he was not. 
66. [66]
    To begin with, both Dr Mills, see [19] above, and Dr Andrzejewski – t 1-14 – accept that KAB’s intentional intoxication with cannabis had some effect in contributing to the state of mind he had at the time of the alleged offending.
67. [67]
    Intoxication aside, my view is that there is no persuasive evidence before me that KAB was deprived of any relevant capacity at the time of the alleged offending.  I accept that he was relapsing into psychotic illness at the time and I accept that his capacities may have been impaired.  In my view, the statements made in the record‑of‑interview show clearly enough that he understood that he ought not do an act of the type alleged against him.  The statements he made to the complainant’s mother the day after the offending are also to that effect, as is the evidence that when M’s daughter entered the bedroom he desisted from his attempts and covered his nakedness.  I think the evidence of his state of mind in the record‑of‑interview is much more pertinent to the determination of this question than his state on admission on 8 November 2013.  I have regard to the fact that illnesses like his generally relapse progressively over a period of weeks.  There was no suggestion by anyone that he may have been more ill at the time of the offending than at the time of the record‑of‑interview.
68. [68]
    Further, it seems to me that the presentation of KAB during the record‑of‑interview is not consistent with someone who could not control his actions.  The facts that the alleged offending took place in a bedroom, rather than in front of other people, and that when interrupted by M’s daughter arriving in the bedroom, KAB did in fact control his actions by desisting and covering himself, are inconsistent with his not having the capacity to control his actions at the time of the alleged offending.  They are also inconsistent in my view with his being deprived of the capacity to understand what he was doing, as is the evidence of his statements to M the day after and his statements to police in the record‑of‑interview.  On the balance of probabilities, adjusted to match the serious nature of the finding, it seems to me that KAB was not of unsound mind when the alleged offence was committed.

Fitness

69. [69]
    There is no dispute that KAB is fit for trial.  The proceedings against KAB for the charge of attempted rape ought to be continued according to law.