Re Fisher[2015] QMHC 4

MENTAL HEALTH COURT

1. [1]
   BODDICE J: By reference filed 19 June 2013, the Director of Mental Health referred to this Court the mental condition of David Fisher at the time of alleged offences of murder, possession of dangerous drugs and possession of utensils or pipes, all alleged to have been committed on 23 June 2012.
2. [2]
   There is no dispute the defendant is currently fit for trial.  There is also no dispute that the defendant was not deprived of any of the relevant capacities such as to support a defence of unsoundness of mind in respect of the alleged offences of possessing a dangerous drug and possessing utensils or pipes. 
3. [3]
   At issue is whether the defendant was suffering unsoundness of mind, or diminished responsibility, at the time of the alleged offence of murder, having regard to the use of various intoxicating substances on the day in question.  A subsidiary issue is the question of future management, if a finding of unsoundness of mind is made.

Background

4. [4]
   The defendant was born on 1 August 1973.  At the time of the alleged offences he was living with his wife and five children.  The victim was his six–month-old son.  There are four other children, all daughters, aged 10, 8, 6 and 5 years.
5. [5]
   The defendant left home after completing Grade 10.  In his late teens he experienced incidents of depression.  During this time he was estranged from his parents.  However, these incidents of depression appeared to have resolved as he entered adulthood.  The defendant later enjoyed relatively stable employment running a floor-covering business.  He also enjoyed a stable family home life, with a strong connection to his church. 
6. [6]
   In the two years prior to the alleged offences, the defendant reported being asked to leave his church because of his views of God and religion.  He also sold his business.  These changes coincided with him and his wife making a joint decision to adopt a more alternative lifestyle.  Thereafter, friends and acquaintances reported changes in the defendant.  He began to express more radical views of religion and his relationship with God.  Other observations included a lack of respect for authority, becoming self-absorbed, being consumed by illegal drugs and struggling with everyday tasks.
7. [7]
   The illicit drugs used by the defendant during this period included mescaline, a synthetic cannabinoid known as K2, and magic mushrooms.  His use of these substances increased significantly in the three months prior to the alleged offences. On the day of the alleged offences, he consumed a container of mescaline in the morning.  He also consumed K2 on multiple occasions throughout the course of that day.
8. [8]
   Mescaline is a hallucinogenic alkaloid similar to MDMA or ecstasy.  Onset of its effect is rapid, occurring within one to two hours of ingestion and lasting up to 14 hours.  Effects include central nervous system and sympathetic stimulation, intense visual and auditory hallucinations, anxiety, emotional instability, paranoia and flashbacks, as well as increased pulse rate, hyperthermia, flushing, sweating, piloerection, and abnormal gait.  The half-life of the drug is estimated to be about six hours. 
9. [9]
   Since 2008, synthetic cannabinoids have been detected in herbal mixtures, including K2.  Synthetic cannabinoids are functionally similar to tetrahydrocannabinol (“THC”), the principal psychoactive component of cannabis.  The effects are also similar to THC.  The effects of THC include distortion of space and time, defects in short-term memory, difficulty in concentrating, slowing of reaction time, motor incoordination, impairment of highly automated functions such as tracking performance, and impairment in complex tasks that require divided attention.  The adverse effects of synthetic cannabinoids may exceed those of THC in severity.  Those adverse effects can also include hallucinations.

Past psychiatric history

10. [10]
    The defendant experienced depressive symptoms at the age of 17, including suicidal ideation.  At the age of 18, he attempted suicide.  His first psychiatric consultation was at the age of 19, following complaints of depressive symptoms.  The defendant reported receiving outpatient psychiatric management for four to five months.  He said he was diagnosed with bipolar affective disorder.  He was prescribed antidepressant medication but did not adhere to that treatment regime.  He ceased attending for mental health follow up.  The defendant reported no further psychiatric assessment or management prior to being remanded in custody following the alleged offences.
11. [11]
    The defendant reported developing psychiatric symptoms in the lead up to the alleged offences.  He gave differing accounts as to how long before the alleged offences the defendant experienced those symptoms.  The defendant’s reports to Dr van de Hoef and Dr Voita were suggestive of symptoms in the months leading up to the alleged offences, in the context of increasing use of hallucinogenic substances.  The defendant gave Dr Phillips a history suggestive of experiencing psychotic symptoms for approximately two and a half years prior to the alleged offences.  The range of psychotic symptoms described to Dr Phillips included grandiose delusions that he was the son of God, referential delusions from the television, and beliefs others were reading his thoughts and mind.  The delusional beliefs in the lead up to the alleged offences included delusional beliefs in relation to his wife.

Alleged murder

12. [12]
    At approximately 5.45pm on 23 June 2012, the defendant advised 000 his son had drowned in the Logan River.  Ambulance officers dispatched in response to that call found the defendant and his wife at the front of their residence and conveyed them to the riverbank.  Police also attended the scene.  A search failed to locate the child’s body that evening.  The body was eventually located in the river at approximately 8.30am on 24 June 2012, at a location approximately one nautical mile downstream.
13. [13]
    According to information provided by the defendant and his wife, the defendant had taken his son for a walk at the request of his wife as their son was having difficulty settling.  Walks had been successful at settling him in the past.  The defendant left around dark and was gone for some time.  He returned to the house alone.  He was wet, muddy and shivering.  The defendant told his wife the baby was in the river.  He reported he had fallen off the bridge into the river and lost him. 
14. [14]
    The bridge in question was a pedestrian bridge over the Logan River.  It was an area well known to the defendant.  Adjacent to the bridge was a large pipe.  Access to it required the defendant to scale some high fencing on the bridge.  The defendant had done so in the past.  He found the pipe a peaceful place to sit.  Such behaviour was not out of the ordinary for the defendant who was described by others as having different perceptions about what is safe.  He was, in effect, a risk-taker.
15. [15]
    Witnesses subsequently interviewed by police described the defendant’s demeanour when he returned from the bridge as “really sad”.^[1]  He was crying and in a very distressed state.  The ambulance officers called to the scene also described the defendant as being in a distressed state.  One described his demeanour as “inconsolable”.^[2]  The defendant told that officer he had been sitting on the big brown pipe with his son in his arms.  He next remembered falling into the river and the baby floating away.
16. [16]
    Later that evening, police undertook a search of a truck parked within the yard of the defendant’s residence.  The search revealed a concealed area in which was located a clipseal bag and a small tin of green leafy material which was subsequently identified as cannabis.  The police also found other items of interest, including electronic scales.  The defendant later admitted to possession of these items. 

Initial accounts

17. [17]
    Police spoke to the defendant’s wife at the scene.  She had had their son in her care all day.  He had been unsettled as he was teething and had a runny nose.  Just on dark, she asked the defendant to take him for a walk.  The defendant took the children for strolls all the time.  Some time later, the defendant returned alone.  The defendant told her he had fallen off the bridge and lost the child in the water.  She described the defendant as distraught.
18. [18]
    Prior to that conversation, police had recorded a conversation with the defendant.  The conversation commenced at 7.30pm.  The defendant told police he had climbed out onto a round pipe adjacent to the bridge.  He next remembered “slapping”^[3] his back in the water.  He described his thoughts as really vacant, peaceful and just so empty.  The defendant said when he hit the water he became separated from his son.  He tried to get to him but it was a quick, swift current.  He did not see his son again.  He got out of the water and went home and rang police straight away.  He told his wife their son had drowned.  He said they fell off the bridge.  He told police that he had earlier smoked K2, which he had bought in a shop in New Zealand.  He started using it that morning.  He said K2 took away his awareness of what was happening around him. 
19. [19]
    In a subsequent conversation, which commenced at 8.22pm that evening at the scene of the drowning, the defendant told police K2 was “really different”^[4] to marijuana.  It makes you feel somewhere where there is no more pain any more.  He agreed it “takes the pain away”.^[5]  The defendant also told police he ate some cactus powder that morning.  He said it “alters reality”, through “profound visions”.^[6]  He had been seeing visions since eating the cactus powder that morning.  When asked to speak about those visions, the defendant said it was “too much to explain”^[7] and they could not be translated.
20. [20]
    The defendant said he had hopped over the railing of the bridge and sat on the metal pipe before he fell into the water holding his son.  When he came up, he was coughing and spluttering and started swimming to shore.  He said he was sorry for his son because he should be alive.  He said his son wasn’t alive because the defendant had been “foolish”.^[8]  When asked what he meant, he replied “to be doing what I did”.^[9]  The defendant said he had been out on the pipe before, and that it is a peaceful place.  It was a spur of the moment decision to climb out onto the pipe.  He was just looking for somewhere to sit.  When he was sitting on the pipe he was still affected by visions.  He described the visions as “real crazy”.^[10] 
21. [21]
    At that point, police observed the defendant was getting agitated and became concerned for his safety.  Whilst they were securing his hands, the defendant said he was still seeing visions, which he described as “not a literal experience”.^[11]  They do not take place in the same way that we perceive it as external reality.  The defendant described the vision as being manifested, and that the vision controlled him.  He felt like it’s not really here, that the real thing is not actually happening. 
22. [22]
    The defendant told police the family was falling apart and it was “greedy”^[12] to bring someone else into the world.  When asked why the family was falling apart, the defendant said he was not functioning any more.  They were all suffering from his inability to fill them up with life.  The defendant said a lot of stuff happened on the family’s recent holiday in New Zealand.  When asked whether it was a good or bad time, for the family, the defendant replied it was a “shocker”.^[13]  Subsequent information from the defendant’s wife confirmed their relationship had been strained in New Zealand.  The defendant had apparently contemplated having an affair at that time.

Formal interview

23. [23]
    The defendant participated in an electronically recorded interview which commenced at 11.47pm on 23 June 2012.  The defendant said when his wife returned home late in the afternoon she requested he take their son for a walk.  He left the house as it was becoming dark.  He pushed the pram a short distance toward the local boat ramp on the Logan River.  At a point approximately midway on the pedestrian bridge he scaled a protective barrier and sat on a large pipe adjacent to the bridge.  The defendant had previously undertaken such a manoeuvre.
24. [24]
    The defendant said at the time he formed the intention to take his child onto the pipe, he was thinking about his current circumstances and his perceived failure with regards to his family.  He reported having experienced some pressure for some time being a father of five.  He stated the only way for him to separate from his family was to take drastic action, such as an act that would result in imprisonment. 
25. [25]
    The defendant reported he lay down on his back on the pipe clutching the child to his chest.  He then intentionally rolled himself off the pipe into the river.  The defendant rose initially to the surface clutching his son.  He then made the intentional decision to push his son away.  He knew this would result in the drowning of his son.  The defendant reported watching his son float in the current of the river.  The defendant then swam to the bank and walked back to his house.  The defendant accepted he did not tell his wife the full extent of his actions at that time.
26. [26]
    The defendant told police he had consumed mescaline in the last 24 hours.  He described it as a “San Pedro cactus”^[14] which brings in “awareness of an alternative state of reality, like perceptional change”.^[15]  He last consumed it that morning when it was still dark.  He consumed a container of it.  The amount he had had that day was about the same as he had had on the previous occasions.  He had had mescaline a few times in the last few months.  The defendant said mescaline affected him for 12 to 16 hours.  He was still feeling the effects at that time.  He described those effects as an “awareness of an unreality of the situation.”^[16]  It made you feel “absolutely horrible”.^[17]
27. [27]
    The defendant said he also consumed a drug called K2 that day.  He had smoked a lot of it.  It makes him aware of divine energies.  He described the effect that day as “it reveals to me in a state of absolute vacuum, there’s nothing of any worth, or light or love, it shows me that and it’s inside me and shows me terrible, terrible things”.^[18]  The defendant went on to speak about his family as being caught in some evil spell.  He is supposed to be providing people with life and love but it has all been locked.  That is what he believed all the time.  He did not believe he was providing his family with light and love.  His energies were trapped and it was causing grief and hurting everybody. 
28. [28]
    The defendant told police it was his fault.  When asked what he meant, he said “because everything is being manifested through me and I am the cause of all the woe in the world”.^[19]  The defendant said he had to try and do something about that today and he sent his son back to God.  He did that by pushing him away from him when he was in the water.  When the son was no longer in sight the defendant walked home and told his wife their son had drowned. 
29. [29]
    The defendant was asked by police what he was thinking about when he left the house to go for a walk with his son.  He replied he was thinking about what he had done to his family “the waste of it all, the sheer waste”.^[20]  He said his family could be so much but they were not because of him.  He felt it had to be done, that it would bring release.  When asked what he had to do, he replied “kill Elijah”.^[21]  The release referred to was “because the whole cosmos is invested in this debacle, a light that I have here and it’s asking me to just set it free”.^[22] 
30. [30]
    The defendant denied anybody had told him that was something he had to do.  It came from these visions that filled his head with horrible things.  He had been having these visions for about a week.  They started with the mescaline.  He described mescaline as previously enjoyable but after “this one I had”^[23] something got inside him giving him demented thoughts.  He had had the bad batch of mescaline the previous week. 
31. [31]
    The defendant described his thoughts when he was on the bridge.  It felt like there was compulsion, like a program running its course.  He agreed if he had decided to change the course he could have done so.  He first realised he had to kill his son whilst on the way to the bridge.  He just had to continue before he could change his mind.  He described not wanting to change his mind as he had to release the energy.  When he surfaced after falling in the water, he made the choice to push his son away.  The defendant said he had to stop his pain.  He made the decision to kill his son the moment he pushed him away.  The defendant wanted to be separated from his family to set them free as he had nothing good inside him.
32. [32]
    The defendant later described to police that there was now release, his wife and girls were free from him.  He described the suffering as the headache in the family.  It had caused them all to fall into grief.  He described “so many”^[24] difficulties with his wife.  Those difficulties caused heartache because they were not happy.  He was unable to reconcile the differences.  He found being a father burdensome.  He described being overrun serving five of them constantly out of the back of a tiny truck.  They had suffered so much misfortune.  He had “lost”^[25] his mind. 
33. [33]
    The defendant said he felt overwhelmed at the thought of having another child.  He saw no other way out of the situation.  He expected to go to prison.  If he had returned from the walk with his son they would have to have continued “in this unholy matrimony”.^[26]  He was required to have energy and life to bring out to fill people but he just did not have the capacity.  He could not have told his wife and children to go and to be free from him because it “doesn’t work like that”.^[27]  When asked to explain he said “because the cosmos itself is embondaged too, to me and the family that I made”.^[28]

Psychiatric assessments

34. [34]
    The defendant was assessed by Dr Kovacevic at the watchhouse on 25 June 2012.  During that interview the defendant was recorded as nominating:

• the world was not real;
• people changed identities, they told him “little stories” to persuade him they had not changed identity but he was not convinced;
• his thoughts were taken and spoken by others, he did not have the ability to do this to them;
• concerns that the clinicians also may not be who we said we were;
• graffiti on surfaces had special meaning to him;
• “cosmos” and “divine” interventions; and
• he was an “abomination”.^[29]

35. [35]
    In a subsequent report, Dr Kovacevic also referred to other beliefs.  Dr Kovacevic opined:

“I found this man to be acutely psychotic, experiencing hallucinations, a loss of touch with reality, a disturbance of ego boundaries and a number of specific delusions including delusions of reference, thought broadcasting, mind reading, delusions of misidentification and passivity phenomena.  It would seem that he has been experiencing psychotic symptoms over the last three to four months in the context of using mind altering substances, mostly K2 and hallucinogens.  I believe there is a direct link between his psychotic state and his alleged offending.”^[30]

Dr Kovacevic recommended he undergo formal psychiatric assessment in High Secure.

36. [36]
    In a review by a registered nurse on 28 June 2012, the defendant recounted about two years prior he had wanted to live a better life by abandoning materialism.  In the last week he had advised his tenants they were not to pay rent as it was wrong to take money from them.  The defendant explained he gave up the literal world and described that the “one who is ‘divine being’ and could be called God has invaded everyone and ‘no-one is real except for me’”.^[31]  The defendant denied having current auditory hallucinations but reported he had heard “the one’s voice”^[32] in bits and pieces since he arrived at the watchhouse.
37. [37]
    The defendant was transferred to the Arthur Gorrie Correctional Centre on 28 June 2012.  An initial assessment recorded there did not appear to be any evidence of any acute psychiatric phenomena in an overt sense.  However, a full assessment was unable to be completed due to poor clinical presentation and poor engagement.  A subsequent review on 29 June 2012 recorded the defendant had developed poor sleep patterns, was consuming limited food and water and had suffered significant weight loss over the preceding two months, and particularly the last two weeks.  The nurse recorded the defendant presented with reported symptoms and signs of a psychotic event.  Recent use of illicit substances over the last three months appeared to have exacerbated his delusional beliefs. 
38. [38]
    Dr Voita reviewed the defendant later that day.  The defendant reported unusual experiences in the last three months.  He described perceptual inversions and a loss of belief in the exterior world.  His thinking of reality changed.  He reported hearing God speak to him.  He also reported messages from TV and radio.  Dr Voita recorded the defendant gave a very thought-disordered account of events which was difficult to follow.  She noted his cannabis use had increased significantly in the last year.  He had been smoking K2 and had had mescaline for the last few months.  The defendant also used magic mushrooms for the last few years until four months ago.  They produced serene states of mind.
39. [39]
    Dr Voita’s opinion was that the defendant had marked formal thought disorder and marked delusional beliefs as well as auditory and visual hallucinations and delusions of reference.  Dr Voita concluded the defendant was floridly psychotic with formal thought disorder.  A subsequent assessment by Dr Voita on 2 July 2012 revealed a similar presentation.  He was recommended for admission to High Secure.  The defendant has remained there since that admission.
40. [40]
    Since the time of the defendant’s admission to High Secure on 3 July 2012, his psychotic symptoms have improved with anti-psychotic treatment.  The more florid psychotic symptoms resolved within three months of his admission.  However, he exhibited signs of a major depressive episode.  He was commenced on anti-depressant medication on 27 July 2012.  Despite this medication, the defendant remained severely depressed and expressed prominent guilt themes related to the death of his son.  The depressive symptoms deteriorated in February 2012.  A deterioration of the defendant’s mental health was also noted in February 2013.  He underwent a course of ECT over 90 days from March 2013.  There was noted improvement to his mental state at the completion of that course.  However, the defendant remained guarded in relation to his thought content and had very poor insight into his illness and treatment needs.

Dr Reddan

41. [41]
    Dr Reddan, who has been Mr Fisher’s treating psychiatrist since 5 July 2014, also opined that at the date of his admission to the High Security Inpatient Service on 3 July 2012, Mr Fisher was “acutely psychotic”^[33] and had likely been so for at least the three preceding months (a period which would encompass the day of the alleged offences).  Dr Reddan did not express an opinion as to the relationship between Mr Fisher’s mental illness and intoxication on the day of the alleged offences.  Dr Reddan assessed Mr Fisher as fit for trial. 

Toxicology

42. [42]
    Forensic samples were obtained from the defendant at about 3.30am on the morning of 24 June 2012.  The defendant’s blood level of mescaline was consistent with ingestion within the previous 24 to 36 hours.  The presence of mescaline in his urine indicated ingestion at some time previously.  The defendant’s blood sample was not tested for synthetic cannabinoids.  His blood was tested for tetrahydrocannabinol.  Whilst it was reported as “not detected”,^[34] THC-C00H, the major metabolite of tetrahydrocannabinol, was identified in his urine sample.  It was not possible to comment on the likely timing of that ingestion.
43. [43]
    The forensic medical officer concluded the results of the defendant’s toxicology sample analysis showed he had ingested cannabis, synthetic cannabinoids and mescaline at some time previously.

Reporting psychiatrists

Dr Voita

44. [44]
    Dr Voita was Mr Fisher’s treating psychiatrist from 3 July 2012 until 5 July 2015.  As such, Dr Voita conducted many interviews with him.  However, relevantly for present purposes, she conducted two interviews with Mr Fisher specifically about his alleged offences on 20 November 2012 and 5 December 2012.  Dr Voita also interviewed the defendant’s wife and other relatives.
45. [45]
    In those interviews, the defendant recalled consuming mescaline on the morning of the alleged offence.  He ingested about 16 capsules, the usual amount he would consume in one session.  He had last used mescaline some several days before.  Mescaline gave him lots of energy and he went down different pathways.  He described it as an “out of body experience … it is like reality does not exist in linear dimension”.^[35]
46. [46]
    The defendant recounted that a couple of days prior to first using mescaline (about six months earlier) he started hearing a voice he identified as “Brian”.  “Brian” impelled him to smoke K2 and mescaline.  The defendant said he knew it would kill him but he had to act on what Brian said to him.  At around this time the defendant started to believe reality was not real.
47. [47]
    The defendant said that since about November/December 2011, and even before first using mescaline, he had started having what he regarded as “magical experiences”.^[36]  He started to believe over time that things were not as they seemed and eventually he could no longer relate to people.  He started to believe people were not real.  At around the same time, “Brian” told him he stole energy from the divine and that he would be charged with stealing energy and causing the dire situation on earth.  The defendant described “Brian” as the Grim Reaper.  He was extracting a toll from a past life and had stolen energy to produce visions.  “Brian” told the defendant he would get rid of him and he would take him to eternal torment.
48. [48]
    The defendant had slept poorly for about three days prior to the day of the alleged offence.  He had also not eaten or drunk water during this time.  When he drank water it kicked him out of his trip.  The defendant said people had changed and he began having profound visions after he returned to Australia from New Zealand.  These visions convinced him all of life was a vision.  “Brian” also convinced the defendant to heed his instructions.
49. [49]
    The defendant said on the day of the alleged offence “Brian” told him to take mescaline.  By that time, the defendant found using K2 was no longer enjoyable and he did not want to use mescaline.  “Brian” told him he would destroy him.  The defendant believed he was going to hell.  “Brian” told him he could not escape.  The defendant smoked his pipe with K2 all day. From dawn until dusk, he smoked at least 20 pipes.  He felt “mentally vacant”.^[37]  “Brian” was telling him to smoke more K2.  The defendant described being shown graphic images of eternal torment and of being told he had to sacrifice his life for the good of the cosmos.  The defendant kept smoking and also used some cannabis.  The defendant did not tell his wife about the visions as at that time “he did not believe that she existed”.^[38]  He thought she was part of his vision.
50. [50]
    The defendant said when he was on the bridge that evening, he felt a compulsion to lie on the drainpipe.  He thought this was a way of giving back energy he had stolen from another life.  The defendant described pushing his son away as he believed he had to give energy back to whoever and whatever was talking to him.  When his son floated away “Brian” left him for while and he no longer had this compulsion.  After the defendant had been taken to the watchhouse, “Brian” came back to him and showed him images of what he looked like on the other side.  The defendant described a snake creature who was breathing smoke.  The defendant described a number of similar experiences on and off whilst he was at the watchhouse.
51. [51]
    The defendant reported still hearing “Brian” occasionally but was no more specific.  He recorded recently hearing a sighing sound at night and thought someone may be in his bathroom but when he checked no-one was there.  He last heard the sighing the night before.  The defendant no longer believed people were not who they said they were.  The defendant explained he had wanted to sign his house over to his tenants prior to the offence because he felt it was dirty to collect money.  He did not believe his wife or his house existed at the time.  The voice told him the world was a fabrication of the mind according to education.
52. [52]
    In the second interview with Dr Voita, the defendant reiterated he had heard the voice of “Brian” telling him to kill his son and that “Brian” had told him to give back his son’s energy to the source.  The defendant referred to an altered reality and said at the time of the offence he was not in the right state of mind.  He felt compelled to do it.  He further stated he believed he was under the influence of the drugs at the time he spoke to police.
53. [53]
    Dr Voita recorded the defendant’s mental state at the time of those interviews as co-operative, with normal speech.  He did not exhibit evidence of formal thought disorder, although he appeared preoccupied with morbid, depressive and guilt themes related to the death of his son.  He did not report delusional ideas and specifically denied the presence of delusions of reference, passivity phenomena and auditory, visual or tactile hallucinations.  His mood was depressed and his insight into treatment needs was limited.
54. [54]
    In preparing her initial report, dated 17 June 2013, Dr Voita had access to the Queensland Police Service (“QPS”) court brief, statements from witnesses, transcripts of police interviews with his family, and his clinical records (including a letter from Dr Velimir Kovacevic).  However, Dr Voita identified that in preparing her initial report, she had not had access to a transcript of the 000 call, transcripts of police interviews with Mr Fisher, his toxicology report, or Elijah Fisher’s autopsy and pathology reports. 
55. [55]
    In her initial report, Dr Voita opined that on the day of the alleged offences, Mr Fisher had paranoid type schizophrenia and was “floridly psychotic”.^[39]  This condition deprived him of the capacity to know he ought not kill his son.  Although it was likely Mr Fisher was intoxicated by cannabis, synthetic cannabis and mescaline on the day of the alleged offences, Dr Voita opined his “actions were driven by psychotic symptoms and not secondary to intoxication with illicit substances.”^[40]
56. [56]
    In preparing her addendum report, dated 8 February 2015, Dr Voita had access to additional material, including a transcript of the 000 call, Mr Fisher’s criminal history, transcripts of police interviews with Mr and Mrs Fisher, Mr Fisher’s clinical records (including reports by Dr Phillips, Dr van de Hoef and Dr Reddan, his medical records from Rivendell Child, Adolescent and Family Services), his toxicology report, and Elijah Fisher’s autopsy and pathology reports. 
57. [57]
    In her addendum report, Dr Voita affirmed her previous opinion that at the time of the alleged offences, Mr Fisher was suffering from paranoid type schizophrenia.  However, Dr Voita opined that “at the time of the killing of his son Elijah, Mr Fisher was impaired but not fully deprived of the capacity to know that he ought not do [that] act … by the presence of a mental illness.”^[41]  Dr Voita opined intoxication with mescaline, in addition to the use of a synthetic cannabinoid, “did play a part in [his] actions leading to the death of his son” and in the absence of intoxication, “Mr Fisher would not have been deprived of the capacity to know that he ought not do the act [of killing Elijah]”.^[42]  Dr Voita again assessed Mr Fisher as fit for trial. 
58. [58]
    In evidence, Dr Voita maintained the opinions she had expressed in her addendum report.  Dr Voita described the interaction between Mr Fisher’s mental illness and substance abuse, in the months leading up to June 2012, saying:

“I think he was psychotic.  I think he was using illicit substances that sort of precipitated and sort of perpetuated his [mental] illness.  But I think that intoxication was part of the picture.  I think that there was some variability in the intensity of his symptoms, and certainly things got a lot worse in the week before the offence happened…  I’ve come to the view, now, that I think it’s impossible to say that intoxication hasn’t played a part in terms of the severity of the symptoms on that particular day.”^[43] 

Dr Voita affirmed her conclusion in her addendum report that Mr Fisher’s mental state at the time of the alleged offences was substantially impaired, irrespective of his intoxication. 

Dr Jane Phillips

59. [59]
    In preparing her report, dated 8 August 2014, Dr Phillips had access to much of the same material as Dr Voita.  This included, but was not limited to, a transcript of the 000 call, various police material (including the QPS court brief and bench charge sheets), statements from witnesses to Mr Fisher’s alleged offences, his toxicology report, and some of Mr Fisher’s clinical records (including Dr Voita’s initial report and another report by Dr Kovacevic).  Dr Phillips did not have access to Mr Fisher’s criminal history, the second police electronic record of interview, or all of his clinical and psychiatric records.  Dr Phillips also interviewed the defendant on 8 January 2014.
60. [60]
    The defendant gave Dr Phillips a more detailed past psychiatric history, and a significantly more detailed account of his psychiatric symptoms prior to the alleged offence.  He described having experienced psychotic symptoms for approximately 2½ years prior to the alleged offence.  The symptoms built up slowly.  The world started to seem fictitious.  It was warm and lovely initially but then turned nasty.  He went on to see everything as existing only in his mind and being communicated through him.  The defendant described a range of psychotic symptoms.  He came to believe that a person’s five senses were coming directly from God.  He began to believe everyone he came into contact with was divine.  He thought people were reading his thoughts.  He came to believe he had a special relationship with God and that he was the son of God.  He recounted incidents whilst in New Zealand in which he began to see his wife and children in a different way.  He saw his wife as a divine being who he was not able to please. 
61. [61]
    The defendant recounted that more than two years prior to the alleged offence he had heard the voice of God.  He later heard the voice under a different name, “Brian”.  Approximately one week prior to the alleged offence he heard the voice of God and threw out his synthetic K2 thinking that was the reason for the voice.  However, “Brian” pushed him to smoke more and more of it.  His smoking of K2 significantly increased in the days before the alleged offence.  He experienced more frequent auditory hallucinations of “Brian”, who would give him various commands.  He responded to those commands.  On the day of the alleged offence, the defendant had smoked K2 approximately 20 times at the command auditory hallucinations of “Brian”.  “Brian” then told him to kill his son.
62. [62]
    The defendant described continuing to experience auditory hallucinations of “Brian” for the first six months following the alleged offence.  He initially experienced a delusional belief in relation to Dr Voita.  It had taken two to three months for his delusions of reference from the television and movies and other beliefs to resolve.
63. [63]
    Dr Phillips opined that on the day of the alleged offence, the defendant had schizophrenia, which completely deprived him of the capacities to control his actions and know he ought not kill Elijah.  His capacity to know what he was doing was impaired, but not completely deprived, by that mental illness.  Dr Phillips further opined:

“While Mr Fisher would have been suffering from the effects of acute intoxication with these substances [the cannabis, synthetic cannabinoid and mescaline] at the time of the … offence and that this may have contributed to [his] disinhibition and poor judgment at the time, it is my opinion that his use of those substances should not preclude him from a defence of unsoundness of mind.”^[44] 

Dr Phillips assessed Mr Fisher as fit for trial.

64. [64]
    In evidence, Dr Phillips reiterated her opinion that on the day of the alleged offences, “Mr Fisher was in such a state of mental disease or mental natural infirmity as to deprive him of the capacity to control his actions and to know that he ought not do the act.”^[45]  Dr Phillips maintained “it [was] the psychotic symptoms rather than intoxication … which led to the [alleged] offending.”  There “was lots of objective evidence to suggest that [Mr Fisher] was both intoxicated and psychotic at the time of the offence, but … there [is] also good evidence … that the psychosis was persistent.”^[46]  However, at the conclusion of her evidence, Dr Phillips accepted “it’s hard to think that that amount of drugs couldn’t have played some role [in Mr Fisher’s mental state] but I think by far and away the largest effect is that of an overwhelming severe psychotic state at that time.”^[47]  Dr Phillips affirmed her assessment of Mr Fisher as fit for trial. 

Dr Pamela Van de Hoef

65. [65]
    In preparing her report, dated 31 October 2014, Dr Pamela van de Hoef had access to, inter alia, a transcript of the 000 call, various police material (including the QPS court brief, Mr Fisher’s criminal history and transcripts of his interviews with police), statements from witnesses to Mr Fisher’s alleged offences, his toxicology report, and some of Mr Fisher’s clinical records (including Dr Voita’s initial report and Dr Phillips’ report).  Dr Van de Hoef also conducted an interview with Mr Fisher on 8 October 2014. 
66. [66]
    When Dr Van de Hoef interviewed the defendant, he gave a history of a few strange experiences when the family had been in New Zealand.  He saw his wife as “glorified”,^[48] larger than life and appearing brighter than usual.  He referred to a voice and said he had been sworn to secrecy.  In the days prior to the alleged offence he reported seeing visions which he found “a bit frightening”.^[49]
67. [67]
    The defendant described a number of other experiences whilst in New Zealand.  He referred to beginning to feel “God-like”^[50] and that he was the son of God.  He believed he could control what other people were doing with his mind.  On one occasion, after he had consumed mescaline, the television “spoke straight to him”.^[51]  He started to receive messages from books.
68. [68]
    The defendant gave a history of having first heard a voice in his late twenties.  He had experienced it intermittently many times since then and believed it was God.  The voice always wanted him to make sacrifices.  He obeyed these demands, including giving away $14,000 in New Zealand and giving away other possessions.
69. [69]
    The defendant recounted the voice had never been frightening until the day of the alleged offence.  On that occasion it named itself as “Brian” and wanted him to sacrifice his son.  The defendant never disclosed these experiences to anyone, including his wife, as the voice commanded him not to do so.
70. [70]
    The defendant related that when he approached the bridge on the day of the alleged offence the voice told him to climb the barrier and lie down on the pipe.  He then had a gap in his memory of events.  A similar incident had happened in New Zealand.  The defendant reported the voice told him to push his son away in the water.  He obeyed and they both floated downstream.  The defendant denied any intention or plan to kill his son.  He denied being unhappy or disenchanted with his life or family.
71. [71]
    The defendant described taking mescaline in Australia and in New Zealand in the three months before the alleged offence.  He also smoked K2 from the time of the middle of the New Zealand trip.  He described K2 as “very powerful”,^[52] much more so than cannabis.  It caused him to be wide awake.  He recounted that the voice kept telling him all through the day of the alleged offence to keep smoking K2.  He also smoked a small amount of marijuana in the middle of that day.
72. [72]
    The defendant said he took a big dose of mescaline that morning.  He had also taken some in New Zealand.  The defendant said its effects were positive and it changed everything in a way that could not be described.  The defendant recounted the voice had told him not to eat or drink.  He had taken mescaline on the evening of 22 June 2012 at the direction of the voice.
73. [73]
    Dr Van de Hoef opined that at the time of his arrest, the defendant was suffering from a schizophreniform psychotic disorder, which had an insidious onset within the preceding three months (the precise onset was difficult to pinpoint).  The defendant “was floridly psychotic (thought disordered, deluded, perplexed and hallucinated) at the time of his arrest, in the watch house, and for some three months after his transfer to High Secure.”^[53] 
74. [74]
    Dr Van de Hoef concluded the defendant’s “psychotic illness impaired, but did not (in the absence of severe intoxication) deprive him of any of the relevant capacities with respect to the charge of murder”,^[54] or of any of the relevant capacities with respect to the other charges.  Dr Van de Hoef assessed Mr Fisher as fit for trial. 
75. [75]
    In evidence, Dr Van de Hoef maintained those opinions.  She had no doubt the defendant had schizophrenia before he allegedly committed the offence, and was “floridly psychotic”^[55] on the day of the alleged offences, but “had to consider why it was that those particular symptoms that had everything to do with the [alleged] commission of the offence, in [her] view, were worse that day”.^[56]  The answer was significant and severe intoxication with a number of agents. 
76. [76]
    Dr Van de Hoef added the defendant “was suffering or developing a psychotic illness at the time, but [she] just could not see how consuming large amounts of multiple hallucinogenic drugs do not make that worse, and [she] thought they did … they produced new symptoms or worse symptoms on the day that were critical in the commission of the offence.”^[57]  Dr Van de Hoef based this conclusion on her interview with the defendant and the toxicology report. 

Assisting psychiatrists

Dr McVie

77. [77]
    Dr McVie advised that in the three months preceding the alleged offence, the defendant had psychotic symptoms.  He was also using cannabis, K2 and mescaline.  In the week preceding the alleged offences, the defendant’s psychotic symptoms had intensified and his substance abuse had increased.  However, on the basis of the toxicology report, Dr McVie questioned the amount of mescaline the defendant had ingested prior to the alleged offences.  She doubted the capacity of that mescaline to affect the defendant’s mental state at the time of the alleged offences. 
78. [78]
    Dr McVie observed the defendant’s psychotic symptoms were continuous, not episodic, which was consistent with a conclusion his symptoms were caused by his ongoing mental illness, not by his intermittent substance abuse.  On that basis, Dr McVie advised the evidence of Dr Phillips be preferred to that of Dr Voita and Dr Van de Hoef.  At the time of the alleged offences, the defendant’s mental illness itself was so severe as to deprive him of the capacity to know he ought not commit the alleged offence. 

Dr Lawrence

79. [79]
    Dr Lawrence advised that in her clinical experience, and according to her research, all of the substances the defendant was abusing in the period preceding the alleged offence had the capacity to both induce and aggravate psychotic symptoms.  Dr Lawrence noted that although the defendant had a period of depressive illness in his early- to mid-adolescence, and may have been vulnerable to mental illness, he had managed to successfully maintain his marriage and employment for a long period without any psychiatric treatment.  Dr Lawrence advised there was no basis to conclude the defendant had psychotic symptoms for the two and a half year period preceding the alleged offences, although his mental state had changed in the three months preceding the alleged offences.
80. [80]
    In contrast to Dr McVie’s advice, Dr Lawrence characterised the amount of mescaline the defendant had ingested on the day of the alleged offences as “a very significant dose of hallucinogenic drugs capable of inducing psychotic symptoms or aggravating [existing] psychotic symptoms”.^[58]  The defendant’s statements in the police interview, to the effect his experiences with the substances had changed in the week preceding the alleged offences, revealed his trips had become “frightening”,^[59] showed him “that the world was a terrible place”^[60] and that he was “responsible for all of the doom and gloom in cosmos”,^[61] which is why he had to “send [Elijah] back away from the world.”^[62] 
81. [81]
    In respect of the issue of intoxication, Dr Lawrence advised:

“I would think it very understandable that on the basis of all of that, Dr Phillips and Dr Voita, I think, and to a lesser extent Dr van de Hoef – all three psychiatrists speak about the psychotic basis for the action, but another aspect that appears to me to be revealed in the record of interview is that his extreme distress during that interview and the change in him and some of his statements as the interview progresses seemed to reveal that he is now returning to the reality of the world.  He is becoming much more aware in a realistic way of the fact that he has killed his son and the implications that he – that will follow from that for him, and in a sense, empathic understanding of what he’s done from the child’s point of view and the effect that that’s going to have on his family, and that – those particular – that particular sort of awareness I would see as the – due to the waning of the intoxicant effect, if you like, of the drugs that he was taking.”^[63] 

For these reasons, Dr Lawrence advised the evidence of Dr Van de Hoef be preferred to that of Dr Phillips.  The defendant’s mental state at the time of the alleged offences was influenced by both his mental illness and his substance abuse.  This influence affected both unsoundness of mind and diminished responsibility

Applicable principles

Unsoundness of mind

82. [82]
    The Mental Health Act 2000 (“the Act”) defines “unsoundness of mind” as meaning “the state of mental disease or natural mental infirmity described in the Criminal Code, s 27, but does not include a state of mind resulting, to any extent, from intentional intoxication or stupefaction alone or in combination with some other agent at or about the time of the alleged offence”.
83. [83]
    Section 27 of the Criminal Code 1899 provides:

“(1) a person is not criminally responsible for an action 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 the 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;

3. (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.”

84. [84]
    A patient who has a mental disease which deprives him of one of the capacities in section 27 is not denied a defence of unsoundness of mind merely because the patient was intoxicated.  The issue is whether the relevant state of mind resulted, to any extent, from intentional intoxication.  Where possible, the effects of psychosis are to be separated from intoxication.  If it is clear the psychosis alone is of sufficient severity to make s 27 applicable, the accompanying intoxication is irrelevant.^[64]
85. [85]
    The state of mind referred to in the definition of “unsound mind” is a reference to the absence of capacity caused by mental disease.  In Re LIH^[65] Wilson J observed:

“The ‘state of mind’ referred to in the second part of the definition of ‘unsound mind’ (beginning ‘but does not include …’) is a description of absence of capacity caused by mental disease.  This part of the definition recognises that there may be more than one cause of a deprivation of capacity.  The other cause (or causes) may be intentional intoxication or something else.  If intentional intoxication plays any role in bringing about the deprivation, the state of mind does not amount to ‘unsoundness of mind’:  that is what is meant by the words ‘resulting, to any extent, from …’.

Mental illness may deprive someone of one of the capacities.  Another capacity may be adversely affected by mental illness or by intoxication or by a combination of mental illness and intoxication (whether or not the intoxication is combined with some third factor).  The extent (whether deprivation or mere impairment) and the cause or causes of the adverse effect of the second capacity cannot derogate from a finding of unsoundness of mind based on the deprivation of the first capacity.”

86. [86]
    The test for the capacity to know wrongness was enunciated in R v Stapleton:^[66]

“A case of this description must turn very largely upon the jury’s appreciation of what amounts to knowledge of the nature and quality of the act and of its wrongness.  For it is evident that a jury although satisfied that no capacity existed at all in the particular accused to reason at all may think that at the back of it all was an awareness of the nature of the act and of the fact that other people might regard it as wrong more especially if that means regarded by the law as wrong.  That would not lead to a conviction if the jury understands that, given a disease disorder or defect of reason, then it is enough if it so governed the faculties at the time of the commission of the act that the accused was incapable of reasoning with some moderate degree of calmness as to the wrongness of the act or of comprehending the nature or significance of the act of killing.  In R v Porter this was expressed by Dixon J as follows:

‘The question is whether he was able to appreciate the wrongness of the particular act he was doing at that particular time.  Could this man be said to know in this sense whether his act was wrong if through a disease or defect or disorder of the mind he could not think rationally of the reasons which to ordinary people make that act right or wrong?  If through the disordered condition of the mind he could not reason about the matter with a moderate degree of sense and composure it may be said that he could not know that what he was doing was wrong.’” (Citations omitted)

The ability to think rationally includes all of the different reasons relevant to the rightness or wrongness of the action.^[67]

Diminished responsibility

87. [87]
    The Act defines diminished responsibility as the state of abnormality of the mind described in s 304A of the Criminal Code.  Section 304A provides:

“When a person who unlawfully kills another under circumstances which, but for the provisions of this section, would constitute murder, is at the time of doing the act or making the omission which causes death in such a state of abnormality of mind (whether arising from a condition of arrested or retarded development of mind or inherent causes or induced by disease or injury) as substantially to impair the person’s capacity to understand what the person is doing, or the person’s capacity to control the person’s actions, or the person’s capacity to know that the person ought not to do the act or make the omission, the person is guilty of manslaughter only.”

Submissions

88. [88]
    The defendant submits the Court would find the defendant was, by reason of his mental illness alone, deprived of the capacity to know the wrongness of his act in releasing his son whilst in the river.  This conclusion follows from a consideration of what is meant by “mental state”, a consideration of the applicable test and the evidence.  The defendant’s conduct on the night in question was formed by his delusional beliefs as a consequence of his paranoid schizophrenia.  That delusional belief was that the world was not real.  The defence submitted a belief the world is real is the fundamental rational belief. 
89. [89]
    The defendant further submits the delusional belief the world was not real was not as a consequence of intoxication, or even affected to any extent by intoxication.  It was an extreme belief solely as a consequence of the defendant’s delusional state.  Some nine months later, the defendant retained that essential delusional belief.  This retained belief, at a time when the defendant was unequivocally not affected by the intoxicating substances of mescaline or K2, supports a conclusion the defendant’s deprivation of capacity at the relevant time was as a consequence of his psychosis alone.
90. [90]
    The defendant submits Dr Phillips’ opinion ought to be preferred as the opinions expressed by Dr Voita and Dr Van de Hoef were premised on an incomplete appreciation that whilst the defendant apprehended his mental state, he at all times retained this delusional belief.  In any event, whilst there was evidence the defendant had consumed intoxicating substances, there was not sufficient evidence to establish he had consumed those substances to the extent he indicated to police.  The defendant also was never asked what effect those drugs had on his attitude towards his son.  That was the relevant factor as it was a question whether the intoxication formed his state of mind at the relevant time.  The defendant was also sightless and guarded which, when considered with the limited evidence of intoxication from onlookers, called into question the defendant’s account as to the effects of the intoxicating substances on him on the day in question.
91. [91]
    The defendant further submits that care must be taken in considering the possible addictive effects of the consumption of both mescaline and K2.  Not only was there no expert evidence in relation to that consequence, there was no evidence of anxiety or other negative features which might be expected from the consumption of those drugs.  This is particularly so having regard to the idiosyncratic effects drugs can have on people.  If the intoxicating substances had informed the defendant’s mental state at the time of the alleged act, there would be a change in the defendant’s delusional belief once that intoxication declined.  In the present case the delusional case had remained and, if anything, the defendant had become more psychotic throughout the course of the police interview.
92. [92]
    The Director of Public Prosecutions submits the central issue for determination is the extent, if any, intentional intoxication played with respect to the defendant’s mental state.  There is no dispute the defendant’s psychosis existed prior to the offence, and for some time after the offence.  There is also no dispute there was an increase in the intensity of the psychosis on the day of the alleged offence.  However, that increase occurred in circumstances where it was accepted the defendant had consumed two hallucinogenic drugs, namely mescaline and K2.  Those drugs alone or in combination had the capacity to exacerbate the defendant’s psychosis.  A conclusion they did so was consistent with the defendant’s self-reporting about the delusions he suffered in the lead up to the alleged offence, and as to the effects of those drugs when he had consumed them in the past.
93. [93]
    The Director submits the opinions expressed by Dr Voita and Dr Van de Hoef ought to be preferred as there was clear evidence the intense delusional belief of the defendant at the time of the alleged offence waned in the hours following that offence.  Further, any delusions about the world not being real were not the relevant delusion.  The focus needs to be on what delusional beliefs were expressed with respect to the time of the alleged offence.  At that time, the delusional belief was one of responding to an auditory hallucination in the form of “Brian”.  The defendant acted under an intense, dark auditory command.  Those dark auditory commands had commenced only recently, and correlated with the use of mescaline and K2 upon his return to Australia.  That drug usage exacerbated the defendant’s pre-existing psychosis. 
94. [94]
    The Director submitted a defence of unsoundness of mind was precluded by intoxication.  It was the effects of the intoxicating substances on the defendant’s mental state which resulted in a substantial impairment of the relevant capacity, by reason of the psychosis, becoming a total deprivation of that capacity.  The Director submits the Court would, however, be satisfied the defendant has a defence of diminished responsibility.  The psychosis alone was sufficient to have impaired the requisite capacity.

Discussion

95. [95]
    There is no doubt that the defendant was suffering from a psychosis on the day of alleged offence.  It is probable that psychosis had existed for at least three months.  I do not accept the psychosis existed for much longer.  Such a scenario is inconsistent with the defendant’s contemporaneous accounts of his mental state, and his observed behaviour in the two years before the onset of his psychosis.  The changes referred to by the defendant as supportive of a longstanding psychosis were entirely consistent with rational decisions made by the defendant and his wife to adopt an alternative lifestyle.  They do not in themselves support a conclusion of a longstanding psychosis.  The defendant’s past psychiatric history also does not support that conclusion.
96. [96]
    There is also no doubt the defendant, in the three months or so leading up to the alleged offence, had commenced using on a regular basis the hallucinogenic drugs mescaline and K2.  Both those drugs, in themselves, can produce psychotic-like side effects.  The defendant’s clear account was that they had a hallucinogenic effect on him.  The consumption of mescaline produced visual hallucinations.  An increased consumption of K2 and mescaline coincided with the development of auditory hallucinations.  Those auditory hallucinations included the introduction of command hallucinations from “Brian”.  I do not accept “Brian” has existed for many years.  There was no such account given by the defendant initially to Dr Voita.  No account by his family or close associates was supportive of such a longstanding significant symptom of psychosis.  I am satisfied “Brian” appeared around the time the defendant commenced using mescaline and K2.
97. [97]
    Dr Phillips’ opinion as to the significance of the defendant’s psychotic episode alone was greatly informed by her conclusion that the defendant had suffered from a longstanding psychotic illness.  Such a longstanding illness would predate the defendant’s use of mescaline and K2.  However, there is no evidentiary basis to support the conclusion the defendant did suffer from such a longstanding psychotic illness.  I do not accept Dr Phillips’ opinion in relation to the presence of a longstanding psychotic illness.
98. [98]
    Once that conclusion is reached, the overwhelming evidence supports a conclusion the defendant had suffered from a significant psychotic illness for at least three months in the context of ever increasing reliance upon hallucinogenic drugs.  His reliance upon those hallucinogenic drugs had significantly increased in the weeks before the alleged offence.  The use of these substances had resulted in dark and disturbing responses to the increasing use of those substances.  Those responses included dark command hallucinations.  Those commands were particularly present on the day in question, and were directly related to the defendant’s actions in releasing his son into the current of the Logan River.  Their presence coincided with the consumption of both mescaline and K2 (the latter on multiple occasions).
99. [99]
    Both Dr Voita and Dr Van de Hoef carefully considered the history of increasing psychotic symptoms, in the context of the increasing use of these hallucinogenic drugs.  Their conclusion that the use of these drugs exacerbated the defendant’s psychosis at the time of the alleged offence was consistent with the defendant’s own account on the evening of the alleged offence.  I found their explanations as to the effects of the intoxicating substances on the defendant’s mental state, namely the deprivation of the defendant’s capacity to know he ought not to do the act in question, both compelling and persuasive.  I accept their opinions as to the effects of the intoxicating substances on the defendant’s capacities at the time of the alleged offence.
100. [100]
     By contrast, Dr Phillips’ opinion that the psychotic illness alone was sufficient to deprive the defendant of that capacity failed to give due weight to the significance of the effects of those intoxicating substances.  I do not accept Dr Phillips’ opinion, as expressed in her report, that the defendant’s psychosis alone was sufficient to deprive him of the requisite capacity. Dr Phillips, in evidence, accepted the presence of those intoxicating substances must have been a contributing factor to the deprivation of that capacity. 
101. [101]
     I am satisfied, on the balance of probabilities, that whilst the defendant was in the midst of a significant psychotic episode at the time he released his son into the waters of the Logan River on the evening of 23 June 2012, both mescaline and K2 contributed to the deprivation of his capacity to know he ought not to do that act.  Their contribution was real, and had an effect on the defendant’s mental state.  But for its presence, the defendant’s capacity to know he ought not to do the act would only have been impaired, not deprived, by his psychosis.
102. [102]
     In reaching this conclusion I have given careful consideration to Dr McVie’s advice that the toxicology results cast doubts on the defendant’s claim to have ingested significant amounts of mescaline and K2 on the day in question.  The relevant blood samples were taken almost 20 hours after the last ingestion of mescaline, on the defendant’s account.  No toxicology testing was undertaken at all for the presence of synthetic cannabinoids, the derivatives of K2. 
103. [103]
     That latter factor is significant.  It is K2 the defendant said he consumed repeatedly throughout that day.  K2 is the substance the defendant expressly referred to as showing him “terrible, terrible things”.^[68]  The defendant told Dr Phillips he had significantly increased the intake of K2 in the days leading up to the alleged offence, and consumed it approximately 20 times on the day itself, and that he was experiencing more frequent command hallucinations from “Brian” during this period.  The defendant also told Dr Van de Hoef the K2 was “very powerful”.^[69] 
104. [104]
     The failure to test at all for synthetic cannabinoids renders the toxicology results of limited assistance.  I am satisfied the toxicology results do not cast doubt on the accuracy of the defendant’s account of having consumed mescaline early on the morning of the alleged offence, and of having smoked K2 repeatedly throughout the course of that day.
105. [105]
     In reaching my conclusions, I found the advice of Dr Lawrence, particularly her consideration of the change in the defendant’s presentation during the course of the interview, of particular assistance.  Her explanation was entirely consistent with a consideration of the evidence as a whole, and as to the likely effects of the intoxicating substances over the course of that evening.
106. [106]
     I accept the opinion of all three reporting psychiatrists, and the opinion expressed more recently by Dr Reddan, that the defendant is fit for trial.

Findings

107. [107]
     The defendant was not suffering from unsoundness of mind but was suffering from diminished responsibility at the time of the alleged offence of murder.  The defendant was not suffering from unsoundness of mind in respect of the remaining alleged offences the subject of the reference.  The defendant is fit for trial in respect of all remaining offences.

Orders

1. At the time of the alleged offence of murder, the subject of the reference, the defendant was not suffering from unsoundness of mind as defined in the Schedule to the Mental Health Act 2000 (Qld).
2. At the time of the alleged offence of murder, the defendant was suffering from diminished responsibility as defined in the Schedule to the Mental Health Act 2000 (Qld).
3. In respect of the remaining alleged offences the subject of the reference, the defendant was not suffering from unsoundness of mind as defined in the Schedule to the Mental Health Act 2000 (Qld).
4. In respect of each of the alleged offences the subject of the reference, the defendant is fit for trial.
5. The proceeding against the defendant for manslaughter by reason of diminished responsibility continue according to law.
6. The proceeding in respect of the remaining alleged offences continue according to law.
7. Copies of the reports, and of the transcript, are to be released to the parties in the criminal proceedings.