Re Smith[2015] QMHC 8

MENTAL HEALTH COURT

1. [1]
   This is a reference of offences allegedly committed by Carolyn Elizabeth Smith (DOB 8 March 1955).  The offences are unlawful stalking with violence between 6 October 2012 and 31 December 2012 and a second charge of unlawful stalking with violence between 7 March 2013 and 24 March 2013.  As well there are three charges of breach bail conditions: between 20 December 2012 and 29 December 2012; on 8 March 2013, and on 23 March 2013.  All the charges concern Ms Smith’s behaviour towards one man about whom she has an erotomanic delusion.

Particulars of Offending

2. [2]
   From the QP9s, the particulars of the stalking between 6 October 2012 and 31 December 2012 are:

The above calls in December are relied upon for the December 2012 breach of bail charge.

3. [3]
   From the QP9s the particulars of the stalking between 7 March 2013 and 24 March 2013 are as follows:

These particulars are relied upon in relation to the March breach of bail charges. 

4. [4]
   In a way which occurs occasionally, some conduct which overlaps with that referred to this Court has been dealt with in the Criminal Courts. In particular, on 4 and 10 September 2012 Ms Smith was convicted of offences including stalking, stealing and trespass.  These convictions are based on Ms Smith’s conduct between March 2012 and July 2012.  The particulars were:

There has apparently been significant similar behaviour on the part of Ms Smith towards the complainant before March 2012, going back to 2010, and perhaps 2009.  That behaviour is not the subject of the reference before this Court, and there are no details of it before the Court.

5. [5]
   The messages left for the complainant were obscene, angry, threatening and intimidating. Ms Smith was angry because she felt the complainant was not acting consistently with the relationship she wrongly believed she had with him.  Dr Beech did not believe, and did not elicit from Ms Smith, that she held a belief that the complainant wished her to telephone or otherwise contact him – tt 1-18-19.  Nor did Dr Butler give any evidence of such a state of mind.

6. [6]
   At various points in time Ms Smith was arrested and granted bail. She was on remand for some time and came under the care of Dr Andrew Aboud, Clinical Director of Prison Mental Health Service between May 2013 and December 2013. He diagnosed a Delusional Disorder (Erotomanic Type), complicated by Alcohol Abuse. Dr Aboud said, “These disorders, to some extent, explain her offending behaviour which could be viewed as Intimacy Seeking Stalking behaviour. I suspect alcohol intoxication significantly contributed as a behavioural disinhibitor at the time.”

Soundness of Mind

Intoxication and Offending

7. [7]
   The relationship between Ms Smith’s state of mind at the time of the offending, and her intoxication with alcohol, is central to the decision this Court must make as to soundness of mind.

8. [8]
   The QP9 information is that the calls of 22 and 27 December 2012 all sounded as though Ms Smith were drunk. The complainant says in his statement that the calls made on 8 March 2013 sounded as though Ms Smith were drunk.  He says that the calls on 23 March 2013 sounded as though Ms Smith became “drunker and drunker”.

9. [9]
   Ms Smith told Dr Beech that the October calls occurred when she had been drinking. She told Dr Beech that the calls made on 19 October 2012 had been made after consuming a bottle of Scotch and at a time she felt very angry because she realised (falsely) that the complainant had asked a third person to abuse her when she visited the bakery. In relation to 7 October 2012, she thought that on that occasion “maybe” she had been drinking and she said that she had indeed been drinking throughout the October period perhaps daily, because at that stage her mother was very ill. Her mother was hospitalised on 22 October 2012 and passed away on 27 November 2012.  In relation to the December 2012 calls, Ms Smith said to Dr Beech, “I may have rung … of course I was drinking”.  She said at that stage she was stressed by the process of arranging the funeral.

10. [10]
    When speaking to Dr Beech Ms Smith denied she had been drinking at the time of the March 2013 calls. In fact, she denied making 145 calls in March 2013. She did not think she made calls on 23 March 2013.  She said that she would not have made more than 100 calls on 23 March 2013 “because I was not that drunk”.  She told Dr Butler that she had been drinking when she made the calls in March.  It was her birthday on 8 March and she had been drinking, and was likely to have been drinking on 23 March.

11. [11]
    Ms Smith told Dr Butler that on 7 October 2012 she had been drinking through the day and had consumed at least five glasses of wine. She told Dr Butler that she believed that she would not have left abusive phone messages had she not been drinking. She was shocked when she was informed of the messages she left and she had significant amnesia for the event which he thought corroborated the likely presence of intoxication. As to Friday, 19 October 2012, Ms Smith told him that she had consumed one-and-one-half bottles of Scotch that day before she made the calls.  Ms Smith told him that she would have been drinking in the December episodes of stalking. 

12. [12]
    Dr Beech and Dr Butler recorded that Ms Smith told them that she had telephoned the complainant at times when she was sober. Dr Beech was not able to identify any such occasion. Dr Butler nominated the occasion of 12 October 2012.

13. [13]
    What Dr Butler says about Ms Smith’s sobriety or otherwise on 12 October 2012 must be examined in a little more detail. At page 11 of his report he notes that the police brief shows derogatory, expletive and threatening messages were left on that day and that at least in one call Ms Smith referred to herself as Nadine, a lady whom she knew to be a friend of the complainant. At page 13 of his report Dr Butler says that Ms Smith told him that on 12 October 2012 she made one telephone call to the complainant from a public phone box and had not been consuming alcohol on that occasion.  He notes, however, the discrepancy between this information and the police brief, which shows that five calls were made on that day from the defendant’s mobile phone.  At page 14 of his report Dr Butler says, “Nevertheless, I believe that, although there is some inconsistency between Ms Smith’s account and the bench charge sheet, there is no confirmatory independent evidence such as alcohol breath analysis confirming that Ms Smith was intoxicated on 12 October, 2012”. 

14. [14]
    In summary, what Dr Butler is saying is that Ms Smith’s account to him was that she was not intoxicated on that day and that there is no independent evidence that she was. As noted above, Ms Smith’s own account is that she had been drinking heavily throughout the October 2012 period. She told Dr Beech she was drinking at the time she made the October calls, although she did not mention 12 October specifically. Ms Smith gave no evidence to this Court as to her state of sobriety or otherwise on 12 October 2012. Given the whole of the evidence, I think it is more probable than not that she was intoxicated on that occasion. The messages are said in the police material to have been crude and harassing, which is something which Ms Smith herself attributes to alcohol on other occasions.  Ms Smith’s account that she rang once from a public phone while sober is clearly incorrect in respect of the number of calls she made, and from where she made them.  I have no confidence that the assertion she made to Dr Butler as to her being sober on this day when calling the complainant is correct. 

15. [15]
    My finding therefore is that on every occasion which is particularised as part of the offences before this Court Ms Smith was drunk, on occasions quite significantly according to her own account.

Dr Beech’s Opinion

16. [16]
    I have two reports from Dr Beech, dated 2 November 2013 and 13 April 2015. Dr Beech outlines the factual history and notes that Ms Smith continued in her actions despite police warnings, arrests and convictions.

17. [17]
    Ms Smith gave Dr Beech a history that she met the complainant in 2006 when they both worked at a real estate agency. Ms Smith told Dr Beech that her marriage ended some time in 2007 and that she had left the real estate agency in 2008. She described to Dr Beech that during the time she and the complainant worked together they talked about work-related matters, sometimes had lunch together, and that he took a friendly interest in her.  She told Dr Beech that after she left the real estate agency the complainant kept in contact with her and sent her photographs of himself.  Ms Smith said that when she and the complainant worked together they got on so well that people could easily mistake them for a married couple, and that other people noticed this.  Ms Smith thought that she and the complainant had a relationship which had developed at the time they worked together and continued thereafter.  It distressed her to think that he denied this.  She gave examples of the complainant indicating his continuing interest in her by arranging for the police to check on her.  She interpreted the complainant’s complaints to police about her as an indication of his ongoing interest in her.

18. [18]
    Ms Smith told Dr Beech that in 2012 she had nursed her mother up to the time of her mother’s death and that through this time she drank very large amounts of alcohol. She said that some of the telephone calls she made to the complainant “such as those in October, 2012 occurred when she had been drinking. She said that during some of those calls she would rant and rave and say rude things.”

19. [19]
    She told Dr Beech she thought that the phone calls she made to the complainant were “shocking”. She said she could not recall why she rang him. She thought perhaps he had rung her first and she was just ringing back. She thought she was expressing a legitimate grievance towards the complainant because he ought never have started the relationship with her.

20. [20]
    Ms Smith saw a psychologist from 2009.  Dr Beech summarised the material from the psychologist, upon whom Ms Smith attended between March 2009 and the end of September 2012.  The psychologist thought that Ms Smith was depressed.  By July 2010 he had diagnosed Delusional Disorder (Erotomanic Type).  This was because the police had told him that Ms Smith made hundreds of telephone calls to the complainant.  When the psychologist asked Ms Smith about this, her response was, “I don’t know why he is doing this [ie., complaining to police] because we are going to get married anyway”.  Ms Smith told the psychologist various irrational ideas about how the complainant displayed his interest in her and how he controlled her life, for example, she interpreted her losing her job as due to his interference because he did not want her to work.  Dr Beech noted that material from the GP showed that Ms Smith reported drinking five drinks per night, five to six days a week from January 2009.

21. [21]
    Dr Beech’s qualified opinion in November 2013 was that Ms Smith suffered from a mental illness, namely Delusional Disorder (Erotomanic Type), whereby she believed she had a relationship with the complainant and continued to act on that belief. He says, “This mental illness may have arisen from a primary mental disorder but it is likely also to be affected by her personality vulnerabilities and aggravated by drug and alcohol use. I suspect that the stress and depression she experienced during her mother’s illness and passing have triggered an increased rumination about her perceived relationship with the complainant. Alcohol may have increased this and intoxication may have had a role in some of her contacts.” He offered the provisional opinion that, “Ms Smith is likely to have been deprived of the capacity to know she should not persist with her attempts to contact [the complainant]”.

22. [22]
    Dr Beech’s April 2015 report was given after being provided with more information, including the report from Dr Aboud (already mentioned) and the report of Dr Butler from September 2014 (below).  Dr Beech saw Ms Smith for the second time on 11 February 2015. 

23. [23]
    Ms Smith had reported that after release from prison in December 2013, on one day she telephoned the complainant, she thought on more than 60 occasions, but she had limited memory of it. She explained that she did so because “she was used to him looking after her”. She had been drinking on the day, which apparently accounts for her limited recollection of what occurred. She made various comments to Dr Beech which showed that she still held delusional beliefs about the complainant. She was very reluctant to say whether or not she thought he still held affection for her and she said, “He continues to make indirect contact, I think”. She said she still held affection for him but resists thinking about him and tries to hold herself back from contacting him. She said she still drinks at the rate of three to five drinks per day but had been attending sessions at ATODS. Dr Beech described this interview as a difficult interview, during which Ms Smith was guarded and defensive.

24. [24]
    Dr Beech’s opinion was that around 2012, in the context of her mother’s illness, Ms Smith suffered from a major depressive episode of moderate severity.  He thought that during 2012 and 2013 her abuse of alcohol reached the point of a Disorder of Alcohol Abuse and probably Dependence.  As well, “She had long harboured beliefs about the complainant, which in my opinion were delusional in nature”.  He diagnosed Delusional Disorder of an Erotomanic Type in relation to this.  He believed these delusional beliefs were held at the time of the offending.  He gave the view that Ms Smith understood, in a practical sense, that her attempts to communicate with the complainant would lead to trouble with the police.  He said:

“It is my opinion that it is likely that on many occasions Ms Smith contacted the complainant because she was intoxicated with alcohol.  That in itself is likely to have been triggered by stressors at the time.  However it is likely that there were some occasions at least where she contacted him while sober because she was angry, because she was lonely, or because she was stressed.  I am unable, despite my second interview with Ms Smith, to delineate which incidents occurred as a result of intoxication adding to her delusional beliefs, and which occurred because she was stressed or saddened, and delusional.

…  In my opinion the majority of the contacts … were made when Ms Smith was intoxicated.  If it is simply that it is required that the majority of the incidents are sufficient to lead to the charge of Stalking, then in my opinion at the time of the offence Ms Smith was driven by her delusional beliefs but her actual behaviour, the breaking of the law, occurred because she was disinhibited by intoxication.  However I think that there were a number of times when simple daily stressors were enough to disinhibit her.  On those occasions I think she would have known it was breaking the law but her mental illness, the Delusional Disorder, deprived her of the capacity to know that what she was doing was wrong in a moral sense.”

25. [25]
    In his evidence Dr Beech said that his opinion was that, for all the stalking before the Court, Ms Smith knew that if she telephoned the complainant, the police would be called and she would be sanctioned. That is, she knew other people regarded her telephoning the complainant as wrong – t 1-6. She knew the police regarded it as wrong. Dr Beech said:

“She knew other people regarded it as wrong?--- Yes, your Honour.

Namely the police and the courts?--- The police.  Yes.  And the complainant, for whatever reason, was going to report the matter to the police, and that she would be further charged.  I believe she knew that.  But I think then what happens is that she gets intoxicated, and that inhibition against calling the complainant is dissolved by the intoxication. … I believe that she knew she’d be in trouble for contacting [the complainant], but the reason that she did it was ultimately she also felt that he loved her and was reaching out at times.

…

… I think she believed that she ought not to do it because she had been sanctioned, it was going to be against the law, it was going to be reported to the police, she would face further charges and things like that.  I don’t think – but I think that she also believed that [the complainant] still held a romantic interest in her, and … she saw that as him directing attention towards her.

Well, in a sense, is it possible that she thought that she was in the right even though she knew that she could get into trouble for it?—In the right to the extent that ultimately she believed [the complainant] held a romantic intention towards her, perhaps.  Perhaps in that, you know, to the extent that he really loved her, then, you know, she has a right to make contact with him because I guess when you’re intoxicat[ed] or when you’re lonely, when you’re sad, you also think that, you know – you might think that love transcends even the laws of the state.

… I think she appreciated that it was illegal, and wrong in that sense. … But wrong in that, you know, if someone truly loves you but just won’t admit it, that you have the right to call him, perhaps in that sense, in a romantic sense, she might have thought she was in the right.” – tt 1-6-7.

26. [26]
    Dr Beech thought that at the time of the telephone calls constituting the stalking, Ms Smith was deprived of the capacity to know she ought not make the calls.  He said this as to the effect of alcohol as a contributor to that state of mind:

“And you have spoken about the disinhibiting feature of alcohol misuse, and do I understand your report correctly that the relevant deprivation to your mind is the capacity to know that what she was doing was wrong?---  Yes.

Given the disinhibiting effect of intoxication, are you able to exclude that intentional intoxication played a role to any extent in the deprivation of that capacity?--- No, because I think she had the beliefs regardless of whether she was intoxicated or not, but I think the – she kept herself back from making the calls because she knew there would be trouble and that it was wrong, at least in a legal sense, and I believe that once she was intoxicated, that inhibition was taken away and that’s when she called.” – t 1-12.

27. [27]
    He said at another passage in his evidence:

“When she was contacting [the complainant], given her delusion, she couldn't think rationally of those reasons which, to an ordinary person, would have made contacting him wrong?--- I think it’s difficult, because I think that the ordinary person, regardless of whether they thought the other – the complainant loved them or not, would have known that if they called they would be reported to the police, and I think she had that capacity, but I think where she lacked understanding was in her interpretation of her relationship with [the complainant].

And that interpretation was formed by illness?--- Yes.

And that interpretation was premising her contact with him?--- Yes.

So that interpretation informed by illness was taking away her capacity to think rationally, like ordinary people do, about why contacting him was wrong; correct?--- No, I think it took away – I think that she had the capacity – in fact, most – a lot of the time.  Because she didn't call him every single day, every single hour of the day.  I think there were times when she held back, and I think, you know, that – and the reason that she held back was because she knew that it was wrong.

…

It was wrong?--- Yeah, she – and I think she knew it was wrong in the terms of you don’t do it, he said not to do it; police will come around.  But once I think she was intoxicated, that inhibition went away.

But the intoxication wasn’t informing the delusion, was it?--- No, it was – but it was taking away the other – the rational – the rational part of her thinking, which is if I do this I’m going to get in trouble again.

But clearly the delusion itself was not in the rational part of her mind.  It was in the ill part of her mind?--- Yes.  I think perhaps it’s like this, that there’s an irrational part of her mind that says he loves me, he’s trying to contact me, I can contact him.  But there’s a rational part of her mind as well, and that rational part of her mind says, well, every time I call him he goes to the police, the police come round, I get charged.  So – and I think that alcohol took away that rational part of her thinking and left her simply with the irrational part, which is I want to call him because there’s a relationship going.” – t 1-14.

“So could we put it this way: the delusion and the delusion alone, putting aside the effects of intoxication, was taking away her ability to appreciate – taking away her ability to rationally appraise her conduct towards him, but the delusion with the addition of alcohol took away – sorry – deprived her of the capacity to control acting on that belief.  Is that the way of looking at it?‑‑‑ I don’t think it took away her capacity to control her behaviour, but it took away the – there are a lot of reasons why she would or would not call someone.  One of those reasons for not calling him is that it would get her into trouble, she believes.  She drinks alcohol.  When she’s intoxicated, that judgment part of her thinking is taken away, and so it’s left her with simply the belief that [the complainant] has a romantic attachment to her and that she wants to contact him.” – t 1-15 (my underlining).

Dr Butler’s Opinion

28. [28]
    Dr Jeremy Butler gave a report dated 12 September 2014 pursuant to s 422 of the Mental Health Act 2000.  He saw Ms Smith on 27 August 2014, ie, at a time between her two interviews with Dr Beech.  Dr Butler outlines a similar history: depression beginning during 2008, treatment from a psychologist from 2009, and the psychologist’s belief that a delusional disorder developed through the period 2009 to 2010.  When Dr Butler spoke to Ms Smith about the complainant she said she no longer had romantic feelings towards him and believed he had no desire to have a relationship with her.  She said she felt distressed and somewhat ashamed by some of her behaviour in late 2012 and early 2013.  She thought she had misinterpreted some signs, which made her believe there was a significant attachment on the part of the complainant.  However, she did believe that there had been a relationship between the two of them, which the complainant had subsequently denied.  She expressed anger with the complainant for making her feel that he had an ongoing interest in her.  She no longer thought that the complainant contacted her, directly or indirectly.

29. [29]
    As to alcohol, Ms Smith told Dr Butler her drinking problem began in 2008; that she began to drink more regularly in 2009, and that by 2010 she was consuming a four litre cask of wine over two or three days.  She said that leading up to her mother’s death she began to drink quite frequently and would often be intoxicated.  She said after her mother’s death she dramatically reduced her alcohol intake, but did occasionally still drink to excess.  At that time she said that at a maximum she would drink eight litres of wine per week.

30. [30]
    Dr Butler thought that Ms Smith had suffered from a Major Depressive Disorder which was now in full remission. He thought that the depression began in 2007‑2008 associated with her marital difficulties, occupational stress, and her mother’s declining health.  He thought that perhaps from 2008 she had developed a Delusional Disorder (Erotomanic Type) which he thought was in partial to full remission at the time he saw her.  He thought that the phone calls constituting the stalking were the result of Ms Smith thinking that the complainant had rejected their romantic relationship, which caused her to be angry and abusive towards him.  He thought that through 2012 and 2013 Ms Smith had developed an increasingly severe Alcohol Use Disorder of moderate severity which “exacerbated her subsequent depressive symptoms and affected both her judgment and behaviour thereby contributing to stalking behaviour”.

31. [31]
    As to soundness of mind, Dr Butler believes that the Delusional Disorder was a mental disease from which Ms Smith was suffering at all material times and he also believes that periodically through the time under consideration she was suffering in varying degrees from a Major Depressive Disorder.

32. [32]
    As to unsoundness, Dr Butler says:

“In my opinion, Ms Smith was suffering from an abnormality of mind when she made these phone calls.  As aforementioned, I believe that she was suffering from a Delusional Disorder of Erotomanic Type.  In this context, she had become preoccupied with the dynamics of the relationship with [the complainant] and this had contributed to her significant distress.  Also, I believe, that her associated depressive condition had been exacerbated during this time because of her mother’s illness.  Therefore, I believe that her judgment was significantly impaired.

With reference to the three capacities, it is difficult to separate the effects of her likely alcohol intoxication from the effects of her underlying illness.  Nevertheless, I believe that it is possible that she would have not made some of the calls if she had not been in an intoxicated state.  It would appear that, on some of the past occasions of stalking behaviour, she had not been consuming alcohol and that the underlying pattern of behaviour causing distress to the victim was driven by her abnormal mental state.

Certainly, I believe that the emotional distress and the intensity of belief associated with her erotomanic illness resulted in an abnormality of mind causing dramatically obsessive and affect laden behaviour as evidenced by the quantity of calls made.  Therefore, I believe her delusional thinking was accompanied by a driven quality in her behaviour that deprived her of the ability to monitor, reflect upon and control her behaviour.  In my opinion, she would have been so consumed by rage and angst, that, at least for temporary periods, she would have only been vaguely aware of reality.  I believe that her state of mind would have been such that she would have been deprived of the capacities to control her behaviour, to understand her behaviour and to know that she ought not to have committed the acts.

However, her level of alcohol intoxication seems to have been significant contributing factor on the majority of occasions when she made the harassing phone calls.  These calls may well not have occurred if she had not been intoxicated.” (my underlining).

33. [33]
    In giving evidence as to the effect intoxication played in bringing about Ms Smith’s state of mind at the time of the stalking, Dr Butler said the following:

“Accepting that, do you – could I just ask you specifically about the three capacities.  If we accept what you say, that she may not have made the calls if she was not intoxicated, what was it, though, that actually deprived her of the capacity, for example, to know that she ought not to do the act, or, for example, the capacity to control her actions?--- I think it was a combination of both factors in some instances, and perhaps not other occasions.  I think that she was clearly angry at the time – there was a driven quality to her behaviour – that she perhaps didn't fully comprehend what she was doing, and certainly didn't know it was against the law.  But I think that on at least numerous occasions her degree of intoxication contributed to those deprivations.  On other occasions, based upon what she told me, and probably the past instances of stalking for which she’d been charged, that – that alcohol perhaps wasn’t a factor.

So on those other occasions when alcohol wasn’t a factor, her mental disease was sufficient to deprive her of relevant capacities?--- I think so.

…

So, now, you’ve expressed the opinion on the 12^th of October, intoxication played no part, but her mental disease was sufficient to deprive her of relevant capacities.  Why could it not be said, then, that when she was intoxicated, her mental condition still, by itself – mental disease was still – sufficient still by itself to deprive her of relevant capacities?--- I think it’s hard when you’ve got intoxication present concurrently to separate it for that particular instance.  You know that alcohol has a disinhibiting effect, so [indistinct] can make someone angry, distressed, more wilful in terms of what they wish to do.  And I’m – certainly there’s a template of her delusional belief that was already providing the impetus for that.  But I think on those occasions where she clearly was intoxicated that it was the intoxication that contributed to her behaviour, and I would have to say that it contributed at least to some extent.” – tt 1-21-22.

“So just to be clear, your Honour, the – sorry, just to be clear, Dr Butler, you’ve expressed the opinion that on one occasion, 12^th of October [2012], she was not intoxicated but her mental disease deprived her of relevant capacities.  And I’m sorry to repeat myself, but really what I’m asking you is is the conclusion not open from that fact that even when she was intoxicated, the mental disease was sufficient to deprive her of a relevant capacity or capacities?--- I just find it hard to do that because---

All right.  Thank you. …” – t 1-23.

“Dr Butler, just to be clear that the difficulty with separating the effects of intoxication, is that because for the majority of the contact making up the offences, that your opinion is that intoxication did play a role in bringing about the deprivation of her capacities?--- That’s correct.” – t 1-24 (my underlining).

34. [34]
    Counsel for Ms Smith asked Dr Butler the following question and received the following answer:

“Given her delusion, at the time she was contacting [the complainant], she couldn't think rationally of the reasons which an ordinary person would have considered when that ordinary person was considering whether contacting [the complainant] was wrong?--- That’s correct.  I believe that.” – t 1-24.

I do not take that answer as meaning anything different from the views expressed above for it was already abundantly clear from Dr Butler’s evidence that, on the occasions (apart from 12 October 2012) when Ms Smith contacted the complainant, he believed she was intoxicated and that that played a part in bringing about her state of mind, viz., deprived of the capacity to know she ought not do the act.

35. [35]
    In answer to a question from Dr Lawrence, Dr Butler said:

“And with regards to the effect of the drinking, was it the intoxication that motivated her to ring this man?--- I – I think it – I think it – I think it contributed to some extent.

To some extent?--- Yes.” – t 1-27.

Advice from Assisting Psychiatrists

36. [36]
    Dr Lawrence was of the view that at the time of the telephone calls Ms Smith was deprived of the capacity to know she ought not do the acts – t 1-38. Her view was that it was the delusional beliefs which motivated and drove the harassing behaviour.

37. [37]
    Dr Varghese’s view was that the delusion from which Ms Smith suffered was strong enough to impact on her capacity to know the wrongness of the acts involved in stalking, even though she knew the consequences or potential consequences.  He said that:

“Looming large in the behaviour is intoxication.  And both psychiatrists have said that the intoxication played at least some part in the behaviour.  And it seems to me, on that advice, it would be difficult for me to advise your Honour that intoxication was not involved to some extent in the behaviour.  The – I accept that the delusion was not caused by the alcohol intoxication but that it resulted in certain behaviours that led to charges.  What she’s been charged with is not having a delusion.  She’s been charged with certain behaviours.  And that it’s difficult to escape the influence of alcohol.  And while alcohol – it has a disinhibiting factor – effect on behaviour, it also – it could also intensify delusional longing, erotic longing.

So my advice is that, on the grounds of intoxication, the defence of unsoundness is not available to defend it except with respect to the specific case of the 12^th of October, which Dr Butler says – and he seems to say confidently – was – intoxication was not involved.” – t 1-41.

Law as to Unsoundness and Intoxication

38. [38]
    Unsoundness of mind is defined in the dictionary schedule to the Mental Health Act 2000 (the Act).  Relevantly it provides:

“Unsound mind means the state of mental disease … described in the Criminal Code, section 27, but does not include a state of mind resulting, to any extent, from intentional intoxication … at or about the time of the alleged offence.”

39. [39]
    Section 27 of the Criminal Code 1899 (Qld) provides:

40. [40]
    In Attorney-General (Qld) v Bosanquet & Ors^[1] Philippides J set out a passage from Re W in which Dowsett J addressed the enquiry this Court must undertake when it is said that there has been a deprivation of one of the relevant capacities.  It is worth setting that passage out in full.

“As mentioned, the appellant conceded that the MHC correctly set out the test as to deprivation at [56] and [57] in line with the approach in Re W.  In Re W Dowsett J at p 14 analysed the meaning of the word ‘deprive’ in s 27 of the Code as follows:

‘… I would like to say something about the phrase “as to deprive”.  There are three possible meanings attributable to it.  A very broad approach would be to infer that the section requires the accused to demonstrate that the commission of the offence was “caused” by his or her mental condition.  That approach cannot be justified by reference to the wording of the section. …

A second approach is to assume that the phrase is intended to describe the gravity of the incapacity or infirmity which will be sufficient to ground a defence.  The defect must be so severe as to (probably) have been sufficient to deprive the accused of a relevant capacity at the time of the offence.  This may be contrasted with the third approach which is that the incapacity or infirmity must have (probably) actually deprived the accused of a relevant capacity at that time.  As a matter of language, the distinction is subtle, but the consequences for present purposes may be substantial.  The former approach consigns a greater role to the expert medical witnesses.  The latter confers a greater degree of responsibility on the tribunal of fact.  This may be of importance in determining the extent to which this Tribunal or a jury considering a s 27 defence may allow its own assessment of the circumstances of the offence to weigh against expert opinion as to whether the offender was deprived of a relevant capacity at the time of the offence.  See R v Michaux [1984] 2 Qd R 159 at p 164 and R v Cannon (unreported – CA 171 of 1997 – judgment delivered 26 September, 1997).  The cases support the latter approach.  M’Naghten, in the passage cited above, makes this clear.  More recently, all members of the High Court in Falconer took that view (per Mason CJ, Brennan and McHugh JJ at pp 46‑47, Deane and Dawson JJ at p 60, Toohey J at p 77 and Gaudron J at p 81).’” (my underlining).

41. [41]
    The distinction which Dowsett J makes between what he calls the second approach and the third approach is relevant to this case. The question for this Court when dealing with mental illness said to cause deprivation of one of the relevant capacities, is to ask whether or not the illness actually deprived the accused person of the capacity at the time of doing the act constituting the offence. The question is not whether or not the illness was so severe that it was sufficient to deprive, or capable of depriving, the accused of the relevant capacity.

42. [42]
    The Court of Appeal in Bosanquet went on to discuss this distinction with particular reference to intoxication:

“The question for the MHC was whether the respondent’s mental illness was such that it deprived the respondent of a relevant capacity.  Caution should be exercised with respect to terms such as ‘driven’ or ‘accountable’ when they are used to describe the role played by a mental illness in respect of proscribed conduct.  Such descriptions may refer to a general causative explanation of the conduct, without identifying whether, at the relevant time, the extent of the mental illness was such that there was a consequent absence of capacity.  Such descriptions may therefore mask the distinction between an absence of capacity (deprivation) and something less (for example, substantial impairment).  Without further clarification, such descriptions may not assist the MHC in identifying, with the rigour required, whether at the material time the mental illness actually resulted in a deprivation of a capacity.  Likewise, care must be taken in considering evidence that a person’s mental illness was ‘sufficient’ to have resulted in a deprivation of a capacity.  Clinical evidence that a person’s mental illness was sufficient to ground a defence may fall within the second category referred to in Re W (as relevant clinical evidence of the severity of the mental illness) and thus be of some assistance.  But where the question of intoxication is raised, evidence that an accused person would have been experiencing a state of mental illness resulting in a deprivation of capacity, even if not consuming intoxicating substances may be problematic because it blurs a proper consideration of whether the relevant deprivation was contributed to, to any extent, by intoxication and thus provide an inadequate basis for the MHC to reach a finding of unsoundness of mind: see Reid v DPP (Qld) & Anor.” – [58] (my underlining).

43. [43]
    Some of the evidence and advice in this case was given in terms of whether or not Ms Smith’s delusion drove or motivated her conduct.  Still other evidence was given in terms of whether or not intoxication contributed to her behaviour.  As is explained in the passages above, those questions are oblique to what this Court must determine.  I have no doubt that without Ms Smith’s delusional beliefs about the complainant, she would not have offended.  She did not ring people at random from the telephone book to harass and abuse on the telephone.  She rang the complainant because she had a delusional belief or beliefs about him.  Without that belief the stalking would not have occurred.  But this Court is not concerned to apply a “but for” causation test.  This would be to use the incorrect “first approach” identified by Dowsett J in Re W.

44. [44]
    Evidence was given along the lines that Ms Smith’s delusions were sufficient to deprive her of the capacity to know she ought not telephone the complainant. Both Drs Beech and Butler were told by Ms Smith that she sometimes made harassing telephone calls to the complainant when she was sober. They both accepted that, if that were so, the delusion itself would have deprived Ms Smith of the capacity to know that she ought not make the calls. That evidence is relevant to the question which this Court must decide, but it is not the question which the Court must decide. That evidence is an example of Dowsett J’s “second approach” in Re W.  It is to some extent hypothetical.  In this case, my finding is that on every occasion particularised as an incident of stalking Ms Smith was intoxicated.  It is not relevant for me to determine whether on other occasions, which are not particularised as incidents of stalking, she engaged in conduct which would have amounted to stalking had the police chosen to charge her with that conduct.  While Dr Beech and Dr Butler were told of such incidents, there is no evidence about the detail of any such incident.  That is, there is no such incident which can be examined, and the Court cannot make a finding as to the facts of that hypothetical incident.

45. [45]
    In a case where intoxication is in issue, thinking about the problem before the Court in accordance with what Dowsett J called the second approach can prevent a proper consideration of the matter before the Court – see the second part of the passage at [58] in Bosanquet.  The proper approach is to focus on the time of the acts which constitute the offences and ask whether, at those times, Ms Smith was actually deprived of a relevant capacity, and, if so, whether that deprivation was contributed to, to any extent, by intoxication, to use the words from the conclusion of paragraph [58] in Bosanquet.

46. [46]
    The Director of Mental Health drew my attention to the decision of Claybourn.^[2]  As to the interaction between mental illness and intoxication, Dowsett J said this in Claybourn:

“… If, as in Bromage, the medical witnesses are unable to say in a particular case that mental disease without intentional intoxication was such as to deprive the patient of a capacity, then such state of mind will be excluded [from the definition of unsoundness].  If, however, those witnesses are able to identify a state of mind (caused solely by mental illness) such as to deprive the patient of a capacity, that state of mind will not, to any extent, be caused by intoxication and so the amendment will not apply.  The process of diagnosis may be more difficult in cases where the complication of intoxication is present, but the question is, in the end, one of fact to be resolved on the evidence.”

47. [47]
    I do not disagree with what Dowsett J says about the interaction of mental illness and intoxication in that extract. However, the submissions on behalf of the Director of Mental Health and Legal Aid were that I should, in effect, adopt Dowsett J’s “second approach” and make the error referred to in the second part of paragraph [58] in Bosanquet.  The task confronting this Court is not to identify, hypothetically, whether or not the defendant’s illness was capable of depriving her of a capacity even disregarding any intoxication.  I cannot think this is what Dowsett J meant in Claybourn, having regard to his clear exposition from Re W, which I extract above.  The task of this Court is to identify whether the defendant’s state of mind at the time of the offending was actually such that she was deprived of one of the relevant capacities and ask whether that state of deprivation resulted to any extent from intoxication. 

48. [48]
    In my view, the answer here is that Ms Smith’s state of mind was brought about, in part, by intoxication on each and every occasion the Crown particularises acts of stalking. On each occasion both Dr Butler and Dr Beech are of the view that Ms Smith was deprived of the capacity to know she ought not do the act. And it is clear, from the extracts of their evidence above, that they thought that deprivation resulted in part from her delusional thinking and in part from the effect of alcohol. Without alcohol, it seems that Ms Smith was able to reason and recognise she ought not do the acts complained of. With alcohol, that ability to reason as to the wrongness of the acts^[3] was taken away.  In these circumstances, Ms Smith is not entitled to rely upon unsoundness of mind as a defence to the charges which are referred to this Court.  I determine that Ms Smith was not of unsound mind at the time of the alleged offending.

49. [49]
    There is no doubt that Ms Smith has a serious psychiatric illness. It is disturbing that she chooses not to treat it. It is disturbing that she chooses to drink to excess, when history has shown that that leads to very serious offending behaviour. There was some evidence that Ms Smith’s drinking is increasing. There was also evidence from Dr Butler and Dr Beech that, while Dr Butler saw Ms Smith at a time when her Delusional Disorder might have been in partial remission, her condition seemed to be worsening by the second time Dr Beech saw her.  There was some discussion as to whether or not this was because the antipsychotic drug which Ms Smith took in jail had still been operating to improve her state of mind at the time Dr Butler saw her, but had worn off by the time Dr Beech saw her.  A submission was made on behalf of Ms Smith that it was desirable that Ms Smith be treated for her mental illness.  I think this is undeniable.  The submission however continued that unless a finding of unsoundness was made, and consequently involuntary treatment was administered pursuant to a forensic order, this result would not come about.  There are two things to be said about that submission.  The first is that this Court will not manipulate its findings of unsoundness in order to bring about the result which it thinks is therapeutic for the person who is referred to the Court.  The second thing is that if it is perceived by the DPP, who is a party to this proceeding, that Ms Smith poses a danger to the community because of her untreated psychotic illness and her increasing drinking in the community, the DPP can bring an application to have Ms Smith’s bail revoked or varied, so that she does receive proper psychiatric care.  Some may not regard this outcome as a satisfactory long-term solution.  The legislative test centred on the words “to any extent” can produce such results.  That is a matter for the legislature.

Capacity to Know that One Ought Not Do an Act

50. [50]
    I will add some remarks about this topic, although I think that strictly they are obiter to the decision I have made. Counsel appearing for the Director of Mental Health ran an argument that Ms Smith’s knowledge and understanding that telephoning the complainant would be regarded as wrong by the police and would lead to her being charged and taken to Court did not constitute a state of mind synonymous with deprivation of a capacity to know that she ought not do those acts. It was said that it was necessary that Ms Smith herself, subjectively believed that the acts were morally wrong in order to have capacity to know that she ought not do them, ie., understanding that the acts were against the law of the land was not enough. Counsel for the Director relied upon the case of Stapleton (above) to support this argument.

51. [51]
    The relevant law is set out by Dowsett J in Re W (above).  His starting point was M’Naghten’s case.^[4]  The House of Lords said this as to the test for this capacity:

“If the question were to be put as to the knowledge of the accused solely and exclusively with reference to the law of the land, it might tend to confound the jury, by inducing them to believe that an actual knowledge of the law of the land was essential in order to lead to a conviction; whereas the law is administered upon the principle that everyone must be taken conclusively to know it, without proof that he does know it.  If the accused was conscious that the act was one which he ought not to do, and if that act was at the same time contrary to the law of the land, he is punishable; and the usual course therefore has been to leave the question to the jury, whether the party accused had a sufficient degree of reason to know that he was doing an act that was wrong …” (my underlining). 

52. [52]
    It can be seen that the objection to testing the question whether a defendant knew they ought not do the act by reference to whether they knew it was against the law was discouraged, not because it was an incorrect test, but because it might induce a false belief in the jury that to appreciate an act was wrong, a defendant would need to have actual knowledge of the law. The case does not say that if a defendant knows actions are against the law, that will not be sufficient to prove that the defendant knew they ought not do the act. The case does not say that a defendant must have a subjective belief that the act was morally wrong before they understand they ought not do the act. Dowsett J in Re W went on to consider the following passage from R v Codere:^[5]

“It is conceded now that the standard to be applied is whether according to the ordinary standard adopted by reasonable men the act was right or wrong. …

That is the accepted test, and applying it in this case, there can be no room for doubt; once it is clear that the appellant knew that the act was wrong in law, then he was doing an act which he was conscious he ought not to do, and as it was against the law, it was punishable by law; assuming therefore, that he knew the nature and quality of the act, he was guilty of murder, and was properly convicted.

The difficulty no doubt arises over the words ‘conscious that the act was one which he ought not to do’ but, looking at all the answers in M’Naghten’s case, it seems that if it is punishable by law it is an act which he ought not to do, and that is the meaning in which the phrase is used in that case.  There may be minor cases before a court of summary jurisdiction where that view may be open to doubt, but in cases such as these the true view is what we have just said.” (my underlining).

53. [53]
    The High Court referred to Codere with approval in Stapleton and said, at p 375, with reference to the part of Codere just extracted:

“This perhaps means that in cases of serious crime, the fact that it is punishable by law is enough to show the prisoner that it is something which he ought not to do, although the final test is that it is wrong according to the standard adopted by reasonable men.  The truth perhaps is that, from a practical point of view, it cannot often matter a great deal whether the capacity of the accused person is measured by his ability to understand the difference between right or wrong according to reasonable standards, or to understand what is punishable by law, because in serious things the two ideas are not easily separable.  But in certain cases, where the insane motives of the accused arise from complete incapacity to reason as to what is right or wrong (his insane judgment even treating the act as one of inexorable obligation or inescapable necessity) he may yet have at the back of his mind an awareness that the act he proposes to do is punishable by law.”

54. [54]
    As Dowsett J remarked in Re W, having set that passage out, “This means that in the case of a serious offence, knowledge that the act is contrary to law may often be indistinguishable from knowledge that it is wrong according to reasonable standards.  However, that may not always be the case.” – p 13.

55. [55]
    A summing-up given by Dixon J in The King v Porter^[6] laid the foundation for the decision in Stapleton. The extract from Porter is:

“We are not dealing with right or wrong in the abstract.  The question is whether he was able to appreciate the wrongness of the particular act he was doing at the particular time.  Could this man be said to know in this sense whether his act was wrong if through a disease or defect or disorder of the mind he could not think rationally of the reasons which to ordinary people make that act right or wrong?  If through the disordered condition of the mind he could not reason about the matter with a moderate degree of sense and composure it may be said that he could not know that what he was doing was wrong.” – pp 189-190.^[7]

56. [56]
    In Stapleton the High Court said, “we would have indeed hesitated to order a new trial for the reason alone that the learned judge directed the jury that the test of insanity was whether the accused knew that firing a shot at another person was against the law.” – p 375.  The danger which the High Court identified was the same danger identified in M’Naghten, “… if a jury were to lay hold of this point that the accused must be incapable of understanding that he was acting contrary to law as distinguished from appreciating that his act was wrong according to the ordinary standards adopted by reasonable men, the distinction would tell against the appellant.” – p 375.  That is, the difficulty is not that a defendant who understands an act is against the law is not deprived of the capacity to know he ought not do the act, but that if the test is left to a jury solely in those terms, they may mistake their role and enquire as to whether or not the defendant was ignorant of the positive law of the land – cf Stapleton p 374.

57. [57]
    In the Mental Health Court there is no concern about how a jury may misinterpret a test. The evidence available to test the understanding of a defendant that they ought not do an act will vary from case to case. As the Courts in Codere, Stapleton, Re W (all extracted above) and Bosanquet (above, [81]) have acknowledged, there are cases in which consciousness that an act is contrary to law and punishable by law will be sufficient to establish consciousness that the defendant ought not do the act.  In my view, this is such a case.  I think it is well described by Dr Beech in the extracts at paragraphs [26] and [27] above that, at all times material to the stalking charges before this Court, Ms Smith knew that telephoning the complainant was against the law and would result in her arrest and punishment.  Most of the time she was capable of reasoning with a moderate degree of calmness as to the wrongfulness of contacting the complainant and comprehending the nature and significance of doing so by reference to ordinary standards – one of which ordinary standards is the provisions of the criminal law.  When Ms Smith became intoxicated she lost that ability.  Through a combination of her mental illness and intoxication she lost the capacity to consider with a degree of composure and reason what she was doing in contacting the complainant and its wrongness.^[8]  I think this is very clear from the passages set out in Dr Beech’s evidence at [27] above.  It was also Dr Butler’s view that the state of mind amounting to deprivation of the capacity to know she ought not do the act was brought about by a combination of her Delusional Disorder and intoxication with alcohol – see [33] above.

58. [58]
    There is absolutely no warrant in a case like this for searching to see whether or not the accused lady herself thought that calling was subjectively wrong, when the clear evidence is that she knew it was against the law. What the law provides is a standard, indeed one of the main standards, against which an ordinary person understands what is right and wrong. In the absence of intoxication, Ms Smith understood this standard, and understood that it applied to her contacting the complainant: she had been arrested and pled guilty to similar conduct in the past. In terms of the legislative test, and in terms of the common law reviewed above, she knew that she ought not do the acts which constitute the stalking with which she was charged.

Fitness for Trial

59. [59]
    Both Dr Butler and Dr Beech gave their view that Ms Smith was fit for trial. Counsel for Ms Smith raised with each doctor the question of whether or not Ms Smith could make a proper plea at trial if she continued to suffer from the delusion that she and the complainant had been in a relationship, and perhaps still were in some type of relationship. The evidence was that Ms Smith could act rationally in response to the advice given to her about the effect of her actions at law and the available options to her in terms of pleading and running a trial – see Dr Beech at tt 1-12-13 and Dr Butler at t 1‑25.

60. [60]
    Dr Varghese, as assisting psychiatrist, explored with both Dr Beech and Dr Butler whether or not there would be undue distress or worsening of Ms Smith’s psychiatric condition if she had to be present during a trial – see t 1-19 and tt 1-27-28.  Neither doctor was of the view that either because of agitation or aggravation during the trial, or because of an intensifying of her delusion, Ms Smith was not fit for trial.

61. [61]
    It may be that Ms Smith never reaches a state where she understands that she suffered from a delusional disorder and never had a relationship with the complainant. The partial remission, which Dr Butler reports, shows that medication might assist her in coming somewhere towards this state. Nevertheless, I accept the views of Drs Beech and Butler and the advice of Dr Varghese, that Ms Smith is currently fit for trial. Notwithstanding the persistence of her delusional disorder, at least in part, she is able to be rational about giving instructions for the trial. It is simply not the case, as was submitted by her counsel, that she could not be rational about instructing counsel to run a defence of insanity at trial, for she instructed him to ask for a finding of unsoundness in this Court. It is one of the more bewildering features of delusional disorders that they do not generally affect the whole of a person’s thinking, but are confined to one particular subject matter.

62. [62]
    There was some disquiet expressed during the hearing that the difference between Ms Smith’s presentation to Dr Butler, and to Dr Beech the second time, indicated that her condition was worsening.  Nonetheless, Ms Smith did not put any up-to-date material before the Court as to her condition, and the only evidence before the Court is that she is fit for trial.  If, at some stage, there is proper evidence to suggest she is not, another reference can be made to this Court on that topic.  It will result in her being placed on a forensic order and treated with medication.  If what has happened in the past is any guide, she will then be returned to a state where she is fit for trial.

63. [63]
    My finding is that at present Ms Smith is fit for trial and the charges against her ought proceed according to law.