Re Gonot[2016] QMHC 1

MENTAL HEALTH COURT

1. [1]
   This is a reference in relation to one charge of arson and one charge of attempted murder. Both offences are said to have been committed on 1 February 2012. Mr Gonot was born on 10 June 1984, so he was 27 at the time of the alleged offending.  Mr Gonot seeks a defence of unsoundness of mind on the basis that he was suffering from mania severe enough to deprive him of a relevant capacity at the time of the offending.

The Facts of the Alleged Offending

2. [2]
   Prior to the offending which is the subject of charges, there had been other seemingly related incidents involving Mr Gonot and the complainants, but these are not the subject of charges.  Mr Gonot was living in a rented flat and all the incidents, both the subject of charges, and not, concern another house in the same residential street and its occupants.

3. [3]
   I first describe the behaviour which is not the subject of the charges. The complainants say that on 27 January 2012 someone entered the area under their house, opened the valve on the hot water system, and sliced the hoses between the mains water supply and the washing machine, creating a flood of water.  The water which escaped flowed onto the electric power-board and created electrical problems.  In another incident tyres on a bike belonging to one of the complainants were slashed; this was on 29 January 2012.  Further, on 31 January 2012 Mr Gonot knocked on the front door of the complainants’ house.  This was the day before the behaviour which is the subject of the two charges before this Court.  One of the complainants opened the door in response to his knocking.  She said that a man who she described but did not know (accepted to be Mr Gonot) was standing outside the front door playing music on an electronic device.  To her saying “Hello”, he asked, “Do two Asian guys live here?”  The complainant replied “No” and Mr Gonot continued to stand at the door saying nothing.  Eventually the complainant asked whether there was anything else she could help him with and he said, “No that’s all”.  He again remained standing silently at the door.  She closed the door.  The conversation unsettled her.  She said that Mr Gonot had a “cheeky, smug smile on his face” throughout this incident.

4. [4]
   The Crown case is that at about 10.30 pm on 1 February 2012, when all the occupants of the complainants’ house had either gone to bed, or were in their bedrooms, Mr Gonot entered the house, perhaps through the front door. The noise of this disturbed one of the complainants but she was not aware that a stranger was in the house. At around 10.45 pm she left her bedroom to go to the toilet.  When she opened the bedroom door she could smell a strange smell and hear a hissing noise.  In the kitchen she found that the gas stove was on, and that all four burners had been activated, allegedly by Mr Gonot.  The complainant turned them off.  She noticed that the windows in the kitchen had been closed, again, allegedly by Mr Gonot.  The complainant then noticed that there was smoke coming from the external stairs at the back of the house.  She was halfway down these stairs when she saw that there was an orange glow under the house and called emergency services.

5. [5]
   Under the house it is alleged that Mr Gonot placed a home-made plastic fuel brick and two wooden blocks on a post situated under the kitchen. He set fire to that fuel. Under the house were discovered skewers wrapped in cling-film.

6. [6]
   When police located Mr Gonot he had leather gloves and a knife in his pocket. They found wooden skewers wrapped in cling-film in his laundry, one with a burn mark on the end of it. They found his car, full of possessions, including his wallet, in the street, unlocked, outside the house next door to the complainants’ house, some little distance from his own home.

Psychiatric Reports and Evidence

7. [7]
   In this reference I originally had reports from Dr Jonathan Mann (2 April 2013 and 17 August 2014) and from Dr Eve Timmins (26 April 2014 and 3 August 2014).  In addition, Dr Timmins gave evidence on 29 September 2014. 

8. [8]
   The matter came on for hearing on 29 September 2014. It was plain from the questions asked by the assisting psychiatrists on that day that they did not regard the reports which had been obtained at that stage as adequate. I ordered a further report to the Court pursuant to s 422 of the Mental Health Act 2000 (Qld) (“the Act”) from Dr Donald Grant.  That report was provided on 6 December 2014 and Dr Grant gave evidence on 28 May 2015.  Unfortunately a Dr Claire Wolfenden was not able to give evidence on 28 May 2015.  As will be seen (below) her evidence is really quite central to the main issue in the case: she examined Mr Gonot in prison after the alleged offending and could not diagnose any illness; she was particularly looking for mania or hypomania.  Neither I, nor the assisting psychiatrists, were prepared to decide the case without hearing from her.  She gave evidence on 30 November 2015.

9. [9]
   The reports of Dr Mann and Dr Timmins supported the defence of unsoundness. I will detail what those reports contain.

Dr Mann

10. [10]
    Dr Mann gave the first report, on behalf of Mr Gonot.  Mr Gonot told him a long complicated story about the situation of his car near the scene of the arson.  He denied that he had offended.  He said that the Crown case rested on unsubstantiated circumstantial evidence.  He said that he thought the police had been overzealous.  He said the police did not have his fingerprints, DNA or anything else to tie him to the scene, and that all gladwrap looks the same.  He did admit that he had knocked at the door of the house the day before the arson.  He said that he was looking for an Asian friend who lived in the street.

11. [11]
    Mr Gonot told Dr Mann that he thought he had schizophrenia. He gave him a history of a breakdown in 2003 which had led to admission in Wagga Wagga and then later in Maryborough. He thought that maybe there had been a diagnosis of bipolar disorder. He said he had been admitted to a psychiatric hospital in France in 2007 for two days. He was unaware of any diagnosis which resulted from that admission but described himself as paranoid, anxious and scared of his surroundings during it.

12. [12]
    He told Dr Mann (as was the case) that in July 2012 he had been found running naked down the street and had been taken by police to the Princess Alexandra Hospital where he was placed on an ITO. He could recall the circumstances of the behaviour which led to this admission – see p 9 of Dr Mann’s report.

13. [13]
    Mr Gonot told Dr Mann he thought he had been unwell at the time of the offending which is before this Court because he was extroverted, spending money and shopping at the time. He told Dr Mann he had had two dexamphetamine tablets two or three days before the alleged offending and denied any other significant drug or alcohol use.

14. [14]
    Dr Mann found Mr Gonot to be superficial and guarded during this interview. His mother attended and he notes twice in his report that she seemed very anxious. Mr Gonot’s mother, brother and sister all wrote letters to Dr Mann to provide collateral information, and so did a psychologist.  The family letters all assert that during 2011 Mr Gonot was quiet, but by the end of that year he had become irritable; was not coming home at night; not communicating; leaving doors to the house and car unlocked, and not caring about his surroundings.  They described him as being arrogant, erratic, over‑spending and “manic”.

15. [15]
    Dr Mann offered a provisional diagnosis of schizophrenia with differential diagnoses of schizo-affective disorder; bipolar disorder, or substance-induced psychosis. Dr Mann was not able to form any view as to deprivation – see page 11.

16. [16]
    Dr Mann was provided with the video record-of-interview of Mr Gonot on 2 December 2012.  He deals with this at pages 4 and 5 of his report.  He notes that the interview went for two hours and that Mr Gonot –

“… remained settled throughout and appeared polite and cooperative.  His affect appeared restricted and he maintained reasonable eye contact with the interviewing officers.  He did not appear to be acting in a disinhibited or elevated way.  He spoke with normal prosody, he was not pressured and his answers were precise and goal directed.  He reported that he had consumed two alcoholic drinks approximately two hours before, but denied feeling intoxicated.  He appeared to recall his movements on the day prior to being apprehended in reasonable detail.”

17. [17]
    In giving his opinion Dr Mann said:

“Unfortunately, I have not seen any contemporary assessment of his mental state performed by a psychiatrist at the time of the alleged offences.  Assessment of the video of the police interview on the day following the alleged offences was not suggestive of him suffering from symptoms of mania and there were no overt symptoms of psychosis.  It remains a distinct possibility that he remained guarded throughout the police interview and did not divulge any delusional beliefs that he held at that time.” (my underlining)

18. [18]
    Thus Dr Mann thought that it may have been possible Mr Gonot was guarding, or disguising, psychosis (involving delusional beliefs) at the time of the interview, but he does not canvas it as a possibility that he was guarding or disguising mania at the time of the interview. Indeed his provisional diagnosis is of schizophrenia, not bipolar disorder, that is a differential diagnosis.

19. [19]
    Dr Mann’s second report dated 17 August 2014 was written after he had two reports from Dr Timmins. He concludes his second report as follows:

“After reviewing the additional material I maintain my opinion that Mr Gonot was suffering from a mental disease at the time of the alleged offence.  I previously considered a number of different diagnoses but I now believe that the most likely diagnosis is bipolar disorder.

I have not seen any further evidence to suggest that Mr Gonot was intoxicated at the material time. …

On the balance of probabilities I believe that Mr Gonot was completely deprived of the capacity to know that he ought not do what he is accused of doing from a moral perspective.

…”

20. [20]
    There are several points to note here. Dr Mann is still without contemporary assessment by a psychiatrist at the time of this second report. The additional information he has are the two reports from Dr Timmins. He does not explain how his diagnosis of bipolar disorder, sufficient to deprive capacity, sits with his description of the police interview in his first report. He does not describe whether or not he thinks it would be possible to disguise mania which was of an intensity sufficient to deprive someone of a relevant capacity. Further, Dr Mann does not explain at all what facts he relies upon to say that at the time of the offending Mr Gonot was deprived of a capacity. That is, even if it is accepted that Mr Gonot suffered from bipolar disorder at the time of the offending, there is no reasoning in Dr Mann’s report which would enable me to understand how he came to the conclusion that that mania deprived Mr Gonot of a capacity at the time of the offending. In relation to the importance of an expert revealing their reasoning process in this context, see my decision in Kalksma.^[1]  Lastly, it is also apparent that Dr Mann has not used the correct legal test as to the capacity he says is deprived – in this regard see my decision in Smith.^[2] 

21. [21]
    I have, on previous occasions, remarked upon how important it is that experts’ reports prepared for this Court are reliable. This is not just the responsibility of the expert. If, like this report, a report is provided to a lawyer and it is not, either in its form or its substance, going to be helpful to the Court, it is the responsibility of that lawyer to address that matter with the expert so that the Court can be assisted.

Dr Timmins

22. [22]
    I move now to Dr Timmins’ reports. Dr Timmins had the files from 2003 for both the Maryborough Hospital and Wagga Wagga. She was told by Mr Gonot that he had a week-long admission in France in 2007.

23. [23]
    The 2003 files show that Mr Gonot was admitted to the Fraser Coast Hospital between 6 August 2003 and 19 August 2003.  He was thought to be manic and psychotic and was admitted as an involuntary patient.  He had been non-compliant with Olanzapine, which had been prescribed during his admission to the Wagga Wagga Hospital four months earlier.  He settled on medication.

24. [24]
    Dr Timmins had the material from Prison Mental Health Services after Mr Gonot’s arrest. That included information about an assault on 16 February 2012. The prison records show that Mr Gonot was assaulted because he was talking to officers, apparently reporting that he was being bullied. Other prisoners did not like him doing this and assaulted him. There was, in addition, a Prison Mental Health intake clinician who interviewed Mr Gonot on 15 February 2012 and a long assessment from Dr Wolfenden on 17 February 2012.  Mr Gonot was seen again on 24 February 2012.  He was to be seen again, but successfully applied for bail and was released on 8 March 2012. 

25. [25]
    Mr Gonot was admitted on 12 July 2012 to 21 August 2012 at the Princess Alexandra Hospital where he was clearly very unwell. During that admission a drug screen performed on 15 July 2012 was negative, but Mr Gonot did make comments, such as that he might have “passively” smoked marijuana prior to his admission and that he admitted to having used ADHD medications (ie., amphetamine) to assist his concentration when studying.  He made statements such as, “I will never take drugs again”.

26. [26]
    When talking to Dr Timmins about the offending, Mr Gonot admitted that he knocked on the door of the complainant’s house the day before the arson. This was, he told her, to enquire if his Asian friends lived there. He said he had met two Asian friends at the beginning of 2011 in a Christian group. He knew they lived in his street but not where. He went there to ask.

27. [27]
    Mr Gonot told Dr Timmins that at the time of the offending he had started going out to pubs and clubs. It was the end of the university year. He thought he was going three or four times a week. He said that at the time he was spending a lot of money and was very impulsive.

28. [28]
    Mr Gonot told Dr Timmins that after he was released on bail on 8 March 2012, he went back to Hervey Bay to live with his mother for a few weeks. He described himself as listless and not feeling safe at that time. He said he had a feeling of suffocation where he had to walk out in the fresh air. He said he was anxious. He said all this passed and he moved back to Coorparoo. Despite having missed the first few weeks of university, he resumed his studies. He said he was stressed during that time but was “doing quite well … keeping it altogether”. He said that in July 2012 he had a Court appearance and in the week before that he did not eat; felt he was going through a spiritual crisis, and felt “the early symptoms of a psychosis coming on”. He said that on 12 July 2012 he was psychotic and that he ran down the street naked, yelling religious slogans.

29. [29]
    As to the circumstances of the offending, he said he had taken one or two ADHD tablets the week before the alleged offences and that he had handed-in one tablet to the police. That latter information appears to be incorrect. The police found one tablet in his car which he denied belonged to him. Mr Gonot said that he had knives in his possession because he was moving out. He said that he wrapped skewers in cling-film in order to transport them in the context where he was moving out of his rented flat. He said that in the days prior to the offending he had burnt some papers under his own house and that he lit the skewers under the house but did not have a good explanation for why he did that. He said the papers he burnt were banking papers which he did not want to put in the rubbish bin. He said he parked his car up the road rather than outside his own house because he thought if he could convince the landlord he was no longer living in his rented accommodation he might get some discount on the rent. He told Dr Timmins that he had “no recollection” of any facts relevant to the arson charge.

30. [30]
    Dr Timmins had collateral information from Mr Gonot’s brother. He thought that in 2011 Mr Gonot was “depressed, stressed out and unsure of himself”. He said that towards the end of the year, leading up to Christmas, he began to relax and enjoy life more. He said there was a change in his behaviour at that point. He said he would go out until early morning; would not sleep or eat regularly and, despite his family expressing concerns to him, he was dismissive, saying he wanted to enjoy life. He said that he had brought real estate brochures home, saying that he wanted to buy a house, which was quite unrealistic. He said that he tried to borrow money from his sister and that he bought indulgent things, such as face cream and clothes. He said he was argumentative on Christmas Day.

31. [31]
    Dr Timmins formed the view that Mr Gonot was suffering from bipolar affective disorder at the time of the offending. She says, as to the capacity to know what he was doing:

“Mr Gonot has an almost complete inability to explain any of his behaviours or thoughts even when directly questioned at the material time.  He seemed unaware of other people’s perceptions of his behaviour either such as his brother’s comments around Christmas time.  Thus on the balance of probabilities Mr Gonot was probably completely deprived of the capacity to know what he was doing for all of the alleged offences.” (my underlining)

32. [32]
    The first thing to note about this conclusion is that, as will be seen below, Mr Gonot was lying to Dr Timmins when he said he could not remember his behaviour at the material time.  The second thing is that there is no convincing logic or reasoning to support the conclusion as to deprivation.  Thirdly, that the conclusion is not tied to the known facts.  While it may be that Mr Gonot was suffering from some illness at the time of the offending, he was certainly able to do things, such as organise to move out of a flat, drive a car and, on the Crown case, undertake some pretty sophisticated and surreptitious offending. 

33. [33]
    As to the capacity to know that he ought not do the act, Dr Timmins says:

“Mr Gonot is unable to explain his actions or what occurred across much of the time from early December 2011 to when he was admitted in July 2012.  In addition when his behaviour is questioned he does not believe that what he was doing was wrong seemingly to be able to come up with a plausible explanation until he is questioned more in depth about his behaviour. [sic]  He seems to have persecutory beliefs in relation to the neighbours and their motives and his safety.  I don’t believe Mr Gonot was unable to reason with a moderate degree of sense and composure at the time of the offences. [sic]  Thus on the balance of probabilities Mr Gonot was completely deprived of the capacity to know he ought not do the act for all the offences.” (my underlining)

34. [34]
    Again, Dr Timmins is proceeding on the basis that she believes the falsehoods Mr Gonot has told her, and again, so far as one can tell, she seems to put store on his (false as it turns out) amnesia in reaching her conclusion.  Secondly, this reasoning is almost incoherent.  It is certainly not sound, logical reasoning based on the known facts at or around the time of the offending, or indeed after the offending.  The persecutory beliefs are not recorded in her report. 

35. [35]
    It will be seen that, although Dr Timmins had Dr Wolfenden’s notes (below), she does not in any way attempt to reconcile the most contemporary psychiatric assessment of Mr Gonot with her conclusions. Nor does she in any way attempt to reconcile Mr Gonot’s performance at the police interview the day after the alleged offending with her conclusions.

36. [36]
    I reject the opinions Dr Timmins gives in her first report and her second report adds nothing more to the matter.

37. [37]
    Questions asked of Dr Timmins by the assisting psychiatrists at the proceeding on 29 September 2014 revealed more difficulties with Dr Timmins’ views.  It was clear that Dr Timmins’ belief that Mr Gonot was being truthful with her very much influenced her opinion.  For example:

“Was he so elevated as to have psychotic symptoms as well?‑‑‑This – that is quite difficult to sort of clearly 100 per cent say yes or no.  I definitely think he was manic and I do believe that he was very fearful of his life at the time.  Unfortunately, he doesn’t have a very clear recollection of what was going on so you can only glean little pieces of information from other sources of information and from what I could gather, it’s – he was very fearful of his safety around that time and probably related that back to his – the neighbours.  He was also very sort of elevated at that particular time of his life and I do wonder if the two acted together such that he couldn’t remember what he was doing and couldn’t understand the reasoning behind what he was doing either.

And now I take it, Doctor, that, clinically, it’s not unusual for people who are suffering from an acute psychotic episode not to lay down memories during the time of that acute psychosis?‑‑‑That’s correct.” – t 1-3 on questioning by counsel for the Director of Mental Health (my underlining).

“Yes.  Dr Timmins, how did you deal with the issue of what appears to be a significant dispute of the facts here?‑‑‑I think the dispute of the facts is related to his mental illness.

Can you please explain that to her Honour more?‑‑‑I think because he has very poor recollection around what he did during that period, that it relates to his mental illness rather than any other reason.

…

No.  So, wouldn’t you expect to have some more evidence actually linking an abnormal mental state to that particular house?‑‑‑I have no further evidence and I’m – and that – and that’s one of the things that I’ve struggled with with this case is – is that there’s this – when he talks about the case I really don’t think that he’s trying to tell – tell me a story that I – I, you know, and be dishonest to, you know, in his – in his answers.  I think he honestly can’t really remember around that time.” – t 1-13 on questioning by Dr Reddan (my underlining).

38. [38]
    It might also be observed from the last of these passages that Dr Timmins had no evidence of persecutory beliefs towards the neighbours – this further invalidates her conclusion extracted at [33] above, which relies on the existence of unspecified persecutory beliefs.

39. [39]
    Dr Timmins’ view that Mr Gonot was so manic at 1 February 2012 that he was deprived of a relevant capacity does not fit with the natural history of mania in that he was seemingly not manic at various times between February and July 2012. The relevant parts of her evidence are as follows:

“Can I just ask you to explain the difference between the state of Mr Gonot’s mental health at the time here in January as compared to when he had a later psychotic episode in July.  What was the difference – because he was acting very differently at those times?‑‑‑I think you need to see it as a sort of a timeframe of unwellness where he started to become very unwell before Christmas in 2011 and gradually become more and more and more unwell and then by the time July 2012 came along, he was floridly psychotic and extremely unwell and just unable to control his behaviour in any way and, subsequently, you know, found in a state of nakedness and praying to, you know, Allah and other religious deities.” – t 1-7 on questioning by Counsel for the Director of Public Prosecutions.

“How do you explain by the assessments by court liaison and the detailed assessment over 90 minutes by Dr Wolfenden in Arthur Gorrie?‑‑‑I think both of those clinicians suspected that there was something quite suspicious about Mr Gonot and I think those assessments are – are reflective of his ability to be able to control himself, you know, and appear ‑ ‑ ‑ 

How does someone control their mood?‑‑‑Well, he – on the – on the first – I mean, you can’t actually control your mood but he has – and he had evidence that was quite suspicious [indistinct] incongruent [indistinct] he was [unconcerned] that he was actually in prison.  These sorts of things that people are very suspicious of a mental illness but there was not enough evidence to be able to place him under the Mental Health Act in order to get him properly assessed.  When you look at his behaviour in custody – and he was subject to an assault.  He was very inappropriate with the other, you know, prisoners not understanding that he couldn’t go and talk – well, he can go and talk to the officers but it was frowned upon and would place him in harms way from the other prisoners.

And what of that is consistent with mania?‑‑‑Well, I think it indicates that he really had very poor judgment and limited understanding of the seriousness of where he was and what was actually happening to him.

But there’s no elevated mood.  There’s no pressured speech.  There’s no flight of ideas and they’re the basic elements that you want before you make a diagnosis of mania?‑‑‑Well, not on those assessments.  No.

And you’d have to agree that those things should be consistent over time for a diagnosis of mania?‑‑‑Well, yes.  They are.  But I still think that Mr Gonot has had abilities to be able to hold himself together very well if he needed to.” – t 1-8 on questioning by Dr McVie (my underlining).

“And there was no evidence of elevated mood on the court liaison assessment or on Dr Wolfenden’s assessment two weeks later?‑‑‑Not two weeks later.

And there was no evidence of flight of ideas or pressured speech two weeks later?‑‑‑No.

What’s the natural history of mania?‑‑‑It progressively gets worse over time, if left untreated that is.” – t 1-10 on questioning by Dr McVie (my underlining).

“Well, if we look at the facts of the alleged offence, someone entered the house – someone quietly enough that no one heard them.  Someone turns on the gas rings and that someone didn’t leave fingerprints or DNA as far as I’m aware.  That someone closes the windows and the doors.  That someone then goes downstairs and, again, without anyone hearing it and lights a fire down there, even if perhaps not expertly at least lights a fire.  Is this – people with mania – do they normally behave that way – quietly, with a lot of self-control over their behaviour, wearing – perhaps wearing gloves, being careful not to leave behind other evidence.  Is that consistent with someone with a severe mania?‑‑‑Well, you wouldn’t normally consider so.  I agree with you.  However, I think Mr Gonot – in his case, I think it is consistent with his behaviour.

So you’re suggesting, Dr Timmins, that mania is a subtle illness?‑‑‑No.  I’m not at all suggesting that.  I’m suggesting in his case Mr Gonot can – is able to control and contain himself such that he can act in – in a – in what looks like a normal way.

Is that usual in mania?  Normally, most people ‑ ‑ ‑?‑‑‑No.

‑ ‑ ‑ mania ‑ ‑ ‑?‑‑‑No, it’s not.

‑ ‑ ‑ you can almost see it across a football field, can’t you?---Yes, I agree with you.  And by July you could see that.  However, I still think he was really unwell in February around the time of the offences.

…

Okay.  Thank you.  Now, if we – you agreed with Dr McVie, he was seen by court liaison on the 7^th of February.  He was seen again by staff of Prison Mental Health on the 15^th of February and he was interviewed at some length by Dr Wolfenden on the 17^th of February.  During none of those interviews was there any evidence, objectively, of mania, was there?‑‑‑A few people were very suspicious of his mental state and I think there was ‑ ‑ ‑ 

No.  That’s not the question I asked you – whether they were suspicious.  I’m asking what evidence was there objectively of mania?‑‑‑If you’re talking about pressured speech or elevated moods, a flight of ideas, then, no, there was none of that.

There wasn’t even any irritability, was there, really?‑‑‑There was no incongruence of affect.” – tt 1-11-12 or questioning by Dr Reddan (my underlining).

40. [40]
    In all the circumstances I am not prepared to act on Dr Timmins’ view of the case. Nor am I prepared to act on Dr Mann’s view of the case because, as is hopefully apparent from the discussion of his reports above, he seemed to accept Dr Timmins’ reports as correct, and changed his own view on the basis of them, without any independent reasoning in circumstances where I am convinced Dr Timmins’ views were not themselves sound.

41. [41]
    This was the state of the evidence when I asked for an additional report from Dr Grant.

Dr Subramanian

42. [42]
    Before coming to Dr Grant’s evidence I will, to preserve the chronology of opinion, deal with two reports which I received from Dr Subramanian (19 May 2015 and 17 November 2015). Dr Subramanian is a psychiatrist who has a particular interest in affective disorders^[3] and is accepted by this Court to be an experienced and respected psychiatrist; he is commonly known as Dr Subu.

43. [43]
    In his report of 19 May 2015, Dr Subramanian gives the history that initially Mr Gonot was under the care of a Dr Paul Schneider, and was transferred from that doctor to Dr Subramanian because Dr Schneider, apparently in reliance on the reports of Dr Timmins and Dr Mann in this matter, changed his diagnosis from schizophrenia to bipolar disorder, and referred the patient to Dr Subramanian because he specialises in affective disorders. 

44. [44]
    Dr Subramanian gives reports addressing whether or not there is a necessity for a forensic order. He says that he thinks Mr Gonot has a very interesting and complex history and says this:

“He reported to me that he was living alone after discharge [on bail after 8 March 2012] and resumed his studies and was able to concentrate on his studies.  He had an admission 5 months after the offence in July 2012.  There were lots of destabilising factors at the time of the offence in the form of severity of the reported symptoms, additional stress of the assault and being in custody.  The history suggests that this did not result in any significant exacerbation in his symptoms around the time of the offence.  The explanation for this can be i) the symptoms resolved on its own, [sic] ii) the symptoms were acute enough before and at the time of the offence and became sub-acute immediately after that or iii) he didn't have a significant relapse till July 2012.  The fact that the relapse didn't happen for 5 months after release from custody raises some relevant questions about his mental state at the time of the offence.  It would have been very difficult for him to control his symptoms in a very stressful situation.

The current working diagnosis is bipolar disorder and the previous reports indicate periods of mania and depressive symptoms.  Mr Gonot had responded well to monotherapy with Olanzapine and is able to maintain the improvement.  One of the diagnosis that might better explain his presentation of acute episodes and complete recovery after the episodes with treatment is acute polymorphic psychotic disorder and this is a recognised diagnostic entity in ICD – 10.  The onset is acute (within 2 weeks) and complete recovery occurs within 2-3 months.” (my underlining).

45. [45]
    Effectively, Dr Subramanian is worried about the correctness of the bipolar affective disorder diagnosis. As well, he expresses concerns that even if the diagnosis of bipolar disorder is a correct diagnosis, that the objective facts surrounding the offending and Mr Gonot’s behaviour after the offending do not sit easily with his having been manic at the time of the offending, let alone so manic that he was deprived of a relevant capacity.

Dr Grant

46. [46]
    I will now turn to Dr Grant’s report of 6 December 2014. To Dr Grant Mr Gonot admitted the offending and admitted some of the anterior behaviour, e.g., he admitted putting holes in the washing machine hoses. Dr Grant describes Mr Gonot’s recollection as “rather patchy”. However, I note that at pp 7-8 of Dr Grant’s report, Mr Gonot does seem to recall everything of substance in relation to the offending behaviour. Mr Gonot told Dr Grant that he had lied in the past because it was very hard for him to accept he had behaved in this way and that he was ashamed of having a mental illness.  So far as the second part of that explanation is concerned, it does not sit happily with the fact that he had consistently, from the time he saw Dr Mann, described having a history of mental illness and relied upon a defence of mental illness in relation to the offending (even though he did not admit that it had occurred). 

47. [47]
    Further, Mr Gonot told Dr Grant that he had been influenced through his childhood by scientology propaganda, to the effect that psychiatry was evil, and therefore did not wish to tell those asking him questions of his past mental illnesses. Again, largely for the same reasons, I do not find this a very credible explanation, at least after July 2012. From the time Mr Gonot saw Mr Mann he described having mental illnesses. Further contradicting this idea is the fact that in prison Mr Gonot co-operated with the Prison Mental Health Service even though he did not have to (see below).

48. [48]
    I note that on questioning from me Dr Grant thought that Mr Gonot told him the truth at interview. I have not seen Mr Gonot give evidence or be cross-examined. It may be that my view of him would be different if I had. I would, however, note that Dr Timmins’ evidence also expressly addressed this point and she thought Mr Gonot told her the truth, see above at [37]. I know that he lied to her, at least that is so if he told Dr Grant the truth. I am sceptical about all the statements Mr Gonot has made. The procedures in this Court are not such as to enable me to form a definitive view of his credit.

49. [49]
    Mr Gonot told Dr Grant much more about the 2007 episode in France than he had told anyone else who examined him. He said that he had been admitted to a psychiatric ward in France, but then a doctor who believed in scientology came and took him out of the ward and cared for him at home. There are odd, unsigned documents put forward in relation to this. Their provenance involves Mr Gonot’s mother who, herself, adhered to the views of scientology propaganda, at least at some stage. I have not seen Mr Gonot’s mother, nor seen her cross-examined. The material put before this Court from, and about, her leads, I must say, to a story which becomes more peculiar, she having had quite a psychiatric history herself, according to a GP (who is probably not qualified to say, or is repeating hearsay from those who are), including having been diagnosed with Munchausen syndrome by proxy. None of this history convinces me that the statements made by Mr Gonot, or his family, as to what happened in France in 2007 is reliable.

50. [50]
    Dr Grant concludes as follows on the question of unsoundness:

“In my opinion, at the time of the alleged offences Mr Gonot was suffering from a manic phase of bipolar affective disorder, with that illness building up over the previous two weeks or more.  At the time of the offences there is no evidence that he was actually psychotic but he did appear to be elevated in his mood, prone to developing irrational ideas and anger, insightless and irrational in his behaviour.  Having taken all the evidence into consideration, I am of the opinion that at the time of the alleged offences Mr Gonot would have been sufficiently manic to have been unable to think about his actions with a reasonable degree of sense and composure and that his illness was depriving him of the capacity to know that he ought not do his actions. His control over his behaviour would also have been significantly impaired but perhaps not deprived.  He would have been aware of his actual actions in terms of understanding what he was doing, but in my opinion would have been deprived of the capacity to know that his actions were wrong at that time.” – p 19 of the report.

51. [51]
    Dr Grant gave evidence on 28 May 2015. The contentious parts of his evidence were whether or not it was possible for Mr Gonot to have been so manic that he was deprived of a relevant capacity on 1 February 2012, but to have disguised that mania when seen by police and the Prison Mental Health Service; during the two months he was a prisoner, and the four months he lived in the community between March and July 2012. The relevant parts of Dr Grant’s evidence are as follows:

“So, Dr Grant, if in fact he was trying not to disclose any history of mental illness, as you’ve mentioned, do you think that if – in a manic state, he would have been capable of masking or covering up his symptoms when he was seen by the prison mental health service?‑‑‑Well, I think it means that he wasn’t too horribly manic at that point, and for whatever reason, it might have settled to some extent – it certainly got worse later.  If he was ­– I mean, you would have expected to see some other activity and grandiosity and so on.  He did get assaulted in prison, and it was not clear why that was, but he suggested – I read something that suggested that he was assaulted because he was too friendly with the prison officers.  And so there were some behavioural issues in custody which could indicate that he was disinhibited and inappropriate in his behaviour, and that’s why he got assaulted.  So I’m not sure if he wasn’t showing symptoms, but certainly at interview, he appears to have been able to contain any manic overactivity, but he continued to show this blandness and unconcern and lack of insight into the serious situation he was facing, so I think Dr Wolfenden was suspicious about what was wrong with him, and if she’d had the benefit of all of the collateral history, then her conclusions might well have been a bit different or a bit more different.” – tt 1-6-7 on questioning by counsel for the Director of Mental Health.

52. [52]
    I would interpolate here that the only evidence about what happened when Mr Gonot was assaulted in prison is at [24] above.

“Well, that seems reasonable, doesn’t it?‑‑‑Well, look, I can’t comment.  Dr Wolfenden has her observations and she’s come to whatever conclusions she came to.  I’ve come to my conclusions on the basis of all the information I had from him about his mental status at the time, his relatives and his mother and his sister – so his brother and his mother – and I think, you know, I’ve come to the conclusion that I have.  Dr Wolfenden may come to a different conclusion on the basis of her evaluation, but I repeat again that I’ve seen many manic patients who have been able to hold themselves together and not appear manic for periods of hours, and a case before a court not that long ago I remember actually got admitted overnight to a hospital and discharged because they couldn’t see enough evidence of any illness.  And, again, in interviews, repeatedly, people can hold it together.  So he certainly became, obviously, more manic later in that year, and he has a history of severe bipolar disorder.  So, I mean, I’ve just put all that evidence together, talked to him about the mental status at the time and what was happening and what he was thinking about, and I’ve come to my conclusions [indistinct].

…

Dr Grant, but the test is not just that you’ve got a mental illness?‑‑‑No, I know that.

It’s also deprivation, isn’t it, of one of the three capacities?‑‑‑Absolutely.

Yes?‑‑‑And, you know, the definitions vary, but I think that he was manic enough not to be able to think clearly and rationally about his behaviour at the time, and I think he’d lost insight into what was going on, and he reacted irrationally during the offences.  That’s my conclusion.” – tt 11-14-15 on questioning from Dr Reddan (my underlining).

53. [53]
    Dr Grant was taken by Dr Reddan to Dr Subramanian’s (Subu’s) report as follows:

“Okay.  Now, it does seem that Dr Subu is concerned, as I say, about the thing that’s concerning the court, which he records at the bottom of page 2 over on to page 3?‑‑‑Yes.

So he’s untreated in Arthur Gorrie?‑‑‑Yes.

He resumes study.  He’s able to concentrate on his studies and then he’s admitted in July.  There really doesn’t seem to be one course of escalation of the illness from February through to July? …

… but it doesn’t show just an escalation into mania from February through to July.  It really shows the opposite?‑‑‑Well, it was in July when he was admitted with psychosis – very severe mania.  I was – I don’t know.  I was under the impression that he really didn’t get well – terribly well and then just got worse in July, but I’m not 100 per cent sure about that.  Certainly he was acutely manic and psychotic in July when he was admitted to PA.  And I note that – I think Dr Schneider had made a diagnosis of schizophrenia, but that was later changed to bipolar disorder.  And then Dr Subu has been seeing him for follow up since his discharge from hospital and he has remained well.  One of the issues that Dr Subu raises is the – yes – he sort of talks about the symptoms at the time of the offence, what they were like – what he was like and then what he was like when he was acutely unwell and admitted to PA.  And he’s sort of talking about how they appeared to have remitted to some extent possibly when he was in prison until he became unwell enough later to be re-admitted to PA.  And one of the issues that I think could be relevant was that there was an issue of amphetamine use in the period when he was getting more manic and he was going out all night partying and so on.  And when he was arrested there was one ecstasy tablet found on his – in his property – on his clothing – in his clothing.  But there was no history of actual intoxication at the time of the offence but there was an intermittent use of ecstasy over – over a period of time – the weeks that he’d been getting unwell.  So it’s possible that his mania was exacerbated during those two weeks by some use of stimulants.

Now, which two weeks?‑‑‑Well, the two weeks before the offences – the weeks before the offences when he was building up – more than two weeks, probably, when he started to become unwell.

The weeks you describe with his family – well, that his family have described to you?‑‑‑Yes.

But what about at the time of the offending, then?‑‑‑Well, at the time of the offending there’s no – the night before, he hadn’t gone out.  He hadn’t used any amphetamines or any – any ecstasy or anything.  And there’s – there’s one tablet found in his pocket at – but there’s no evidence that he was actually intoxicated with amphetamines at the time as far as I can tell.  And I don’t know that any test was done, but he – he gave a history of having been at home with – in his new share house which lasted 24 hours because of his behaviour.  And having dinner with the people there and so on and not going out that night.  So it turned out – it looked as if he hadn’t used any drugs at the time of the offence itself.  So that may be an extra complicating factor in terms of, you know, making symptoms worse.  And then not having drugs in prison might have settled it a bit, but it looks like he was more settled when he got into custody for whatever reason till he relapsed further later in the year – July.” – tt 11-22-24 on my questioning (my underlining).

“Just – the only question is really in a way – similar to what her Honour in that what I think Dr Subu’s questioning is his mental state at the time of the alleged as being sufficiently severe to warrant a defence of unsoundness of mind and yet he didn’t then require any treatment or admission until July.  And even though I think – as I said before, Dr Grant, the grammar is a little bit confusing, I think that’s really what he’s saying.  He’s raising a question about that, isn’t he?‑‑‑Well, he is.  Yes.  And that’s – that is obviously a relevant and reasonable question.

But you don’t agree that it would have been very – Dr Subu says it would have been very difficult for him to control his symptoms in a very stressful situation.  And that’s, I guess, the point which you disagree with Dr Subu, isn’t it?‑‑‑Well, I guess he was in a contained environment in prison.  He didn’t have any access to any drugs.  He wasn’t going out at night – all that.  So it seemed to settle to some extent – to a reasonable extent in prison and to the extent where he was under the radar there in terms of whether he was ill or not.  There’s a lot of ill people in prison who go under the radar, but if you’re manic you would probably – usually not go under the radar.  But I think – I still hold the opinion [indistinct] what I felt he was like at the time of the ‑ ‑ ‑

Thanks.  Thanks, your Honour.” – tt 11-24-25 on questioning from Dr Reddan (my underlining).

“I really do have a difficulty with the idea that he did not know that he ought not do these actions when he’s gone about it in such a surreptitious way, that is a way designed not to be caught, and then when asked about it, doesn’t just deny it, he tells lies, and lies that are sophisticated enough in that they admit quite a lot of the truth – you know, they’re quite good lies – that’s the way you tell a good lie, stick to the truth as much as you can – so that it seems to me that those behaviours do indicate that he knows that he ought not do these things?‑‑‑Well, I think that – as I said to Dr Reddan, people who are unwell are often very well organised in what they do.  And he actually wasn’t all that organised, because his car was found abandoned on the street next to this – a fence, and in this was his wallet, and the car was unlocked, and there was other things that sort of implicated him in the offence, and he’d gone and just passed out and gone to sleep in his house some distance away.  It wasn’t all that well organised.  I don’t know – I can’t see any other alternative motivations for why he would behave in all these strange ways.

Well, can we leave motivation out of it.  I don’t know if you can.  But it doesn’t quite seem relevant to me to understand his motivation.  I have to know whether or not he understood that he ought not do these acts.  And he was surreptitious about them, and then he denied them?‑‑‑But that’s very common with people with mental illness.  Even if they are deprived – and he did deny them for a long time, and I think – I’ve described some of the reasons why I think that he did.  And so people with a mental illness may well deny and go on denying that they did it.  I think that – my consideration was – I mean, I also was quite concerned about the whole thing, whether he was manic enough, if you like, at the time.

Yes.  I think that encapsulates probably a lay way of saying it, but I think that encapsulates my concern?‑‑‑But while – wondered whether he was manic enough.  In the end, I thought that he was manic enough not to be able – if you take the sort of softest definitions of deprivation, he wasn’t able to think with a moderate degree of sense and composure about what he was doing, because he was too manic, too irrationally angry, too disinhibited, and just sleep-deprived and all the rest of it, that he carried out these strange actions against people he hardly knew.  And this was a man who normally has a pretty normal personality structure.  He’s had a difficult background and so on, but when he’s not unwell, he’s at university, getting 6s and 5s in his subjects, and is proceeding with trying to establish his career and all the rest of it, and it’s not – he’s not an antisocial man who would suddenly go out and do these very strange things.  He hasn’t got a history of violence.  So I think motivation is important to consider from a – on a psychiatric point of view, and if the motivation seems lacking and strange or psychotic or just – he said he couldn’t think clearly – then that’s relevant to a sense of deprivation.” – tt 11‑25-26 on questioning from me (my underlining).

54. [54]
    In his report, Dr Grant directly addressed these matters. He said that in the police interview and in custody Mr Gonot “appeared to show no gross evidence of mental illness. However, he was very nonchalant in the police interview and subsequently in custody about the offences and their severity, appearing to lack any insight.” – p 13 of his report. Dr Grant said that the assessments made of Mr Gonot in custody were not informed by information about his past history of psychosis suggesting bipolar affective disorder. He notes, and I think it may well be accepted, that Dr Wolfenden had concerns that Mr Gonot may have mental illness, including mania. Dr Grant’s reasoning was that, having regard to the collateral information particularly provided by his family, Mr Gonot was exhibiting increasing symptoms of mania leading up to the offence. He says he was overactive, disinhibited, over-spending, incurring many traffic fines and debts and spending money which he did not have. He was buying excessive clothing and personal goods and being overbearing and irrational with his family. He was planning to travel to Spain to go on a pilgrimage and was learning Spanish and salsa dancing. He was looking at buying real estate. All this in a context where he had no available funds. Dr Grant reasons that, while Mr Gonot was falling short of displaying completely psychotic symptomatology, he was in a disturbed mental state and developing increasingly severe symptoms of a manic phase of his manic depressive psychosis. He thought that he had no insight into the irrationality of his behaviour and his offences were out of character, apparently motivated by quite irrational anger towards the occupants of the house where the offences occurred. – pp 18 and 19 of his report.

Dr Wolfenden

55. [55]
    Having heard from Dr Grant unfortunately the matter then had to be adjourned again so that Dr Wolfenden could come to give evidence. For reasons which I hope will become obvious, her evidence was very important in the matter. Her observations of Mr Gonot are just one of a series of independent observations made by professionals around the time of the offending.  The first is of course the police interview. 

56. [56]
    The second is an assessment by Court liaison on 2 February 2012. The Court liaison officer found Mr Gonot was calm and co-operative.  There was no incongruent affect.  He seemed relaxed and detached.  Court liaison had collateral information from Mr Gonot’s brother, suspected an underlying mental illness, and referred Mr Gonot to the Prison Mental Health Service.

57. [57]
    Mr Gonot was seen by Prison Mental Health intake clinicians. This appears to have been on 7 February 2012 – see the first page of Dr Wolfenden’s note. He seemed unconcerned about his circumstances and explained this was because he had not offended as alleged. He told the clinician that he often went out until the early hours and “went a bit wild”. He told the clinician that people had commented he had changed. Previously he had been worried about a lack of finance and study pressure to the point that he had thought of suicide. However, he had recently taken up Spanish lessons and salsa dancing and had booked a holiday to Spain. He was seen at some point by an experienced clinical nurse consultant, Peel, who noted that there was no overt evidence of psychosis or pervasive mood disturbance.^[4]  He was happy to sign a consent form to allow the Prison Mental Health Service to speak to his mother and sister.

58. [58]
    On 16 February 2012 the prison records record what Dr Timmins recorded in her report, that Mr Gonot was assaulted by prisoners after telling prison officers he had been bullied.^[5]

59. [59]
    Then on 17 February 2012 Dr Wolfenden saw Mr Gonot. She spent 90 minutes with him and made very detailed notes which are in evidence. Dr Wolfenden was a young psychiatrist, but it was a very thorough interview.^[6]  Dr Wolfenden, in her evidence to this Court, said that she was deliberately trying to give Mr Gonot “enough time to demonstrate signs of mental illness, so my experience tells me that normally somebody with mania or hypermania^[7] will eventually give themselves away, usually sooner rather than later in terms of how they present and what they say.” – t 1-11.

60. [60]
    Dr Wolfenden’s notes record that she saw Mr Gonot because he had been referred due to the serious nature of the charges he was facing. In evidence she clarified that he had not been referred to her because of his behaviour in prison. I think this is a significant point, for if someone were so manic that they were deprived of the capacity to know what they ought and ought not do, and were subjected to the additional stress of being in prison, and subject to the close observation^[8] which prison entails, I think it most unlikely that mania could be hidden for a period of two months on the prison unit and from professionals like Dr Wolfenden who were alert to the possibility of mania and looking for it.

61. [61]
    Dr Wolfenden was aware that Mr Gonot had an incongruent (unconcerned) affect and she had family reports of recent behavioural changes – increased spending; traffic infringements and staying out all night.

62. [62]
    Mr Gonot lied to Dr Wolfenden about his psychiatric history. He said that he had never been admitted and never taken psychotropic medication. He told her that he had had “a nervous breakdown” which occurred in the context of his having been accused of sexual assault while he was on the Young Endeavour ship. He said that after that incident he felt his life was ruined and had been depressed for one or two months: he lost his appetite, had poor sleep and could not function. But that after the charges were dropped, he felt that his mood changed and he became elevated and on top of the world so that he felt indestructible. He said that he was out to have a good time and stayed out every night. He said that after one or two months his elevated episode finished spontaneously and he returned to normal. This is a false history. In fact what happened was that he was admitted to Wagga Wagga Psychiatric Unit in January 2003 with depressed mood; then went on the Young Endeavour; was in fact charged with sexual assault; did in fact have charges dropped in July, and then was admitted to Maryborough Psychiatric Unit with elevated mood, which he told that hospital was due to his not being able to sleep due to the stress of his impending Court case (according to the notes). So the false history is very close to the truth, but structured in a way that does not reveal the previous psychiatric admissions. That is, telling the false history looks like purposeful, directed behaviour and does not sit with someone whose mental state is so disordered by mania that they lack capacity to judge whether their actions are right or wrong.

63. [63]
    Mr Gonot lied about the subject matter of the allegations which are referred to this Court. He said he knew nothing about the offences with which he is charged, yet giving other peripheral details with some particularity as to the fact that he was moving house; as to the knocking on the door inquiring for two friends from his church, et cetera. Mr Gonot told Dr Wolfenden that he was not worried about the charges he faced because he “didn’t do it”. 

64. [64]
    Mr Gonot told Dr Wolfenden he was sleeping eight or nine hours a night and that his appetite was good and his energy was normal. If those things were true, they were not consistent with a serious episode of mania. He told her that he was focussing on future plans, including undertaking a pilgrimage in Spain, visiting friends in France, completing a degree and setting up a jewellery business. He acknowledged that his brother thought he was going out a lot more than normal, and said that some of his friends had probably noticed a change in his personality, but he attributed that to the fact that he was on university holidays. He said that he had been learning salsa dancing and said that he would stay out till 2.00 am but then sleep until 10.00 am in the morning. He denied the kind of thinking he said he experienced when he said he felt elevated after the sexual assault charges were dropped.

65. [65]
    Dr Wolfenden noted that Mr Gonot tolerated the 90 minute interview without difficulty. She said his speech was spontaneous and normal in rate, tone and volume. She said there was no formal thought disorder and no flight of ideas. She thought his affect was somewhat incongruent in that he appeared unconcerned by his current predicament, but otherwise she thought he was euthymic and reactive in affect. He denied having any perceptual disturbances and she did not notice that he was distracted or preoccupied during the course of the 90 minute interview, the way somebody who was psychotic might be. He did not demonstrate any delusional thought content and denied having any delusions or hallucinations or other signs of psychosis. She thought his insight and judgment was reasonable and he agreed to her assessing him again for diagnostic clarification – t 1-8.

66. [66]
    Her conclusions were that Mr Gonot presented as mentally well, but she worried that, given the history he, and others, had provided to her, he might have bipolar affective disorder or a prodromal psychosis. For that reason she sought the QP9s from the police and requested that Mr Gonot be observed in prison as to his mental state behaviour and sleeping patterns.

67. [67]
    Dr Wolfenden said in answer to a question from Dr Reddan that it would be normally difficult to engage someone with mania or hypomania for 90 minutes; further that over a 90 minute period, the symptoms of mania or hypomania would be exhibited in her experience – t 1-12.  Dr Wolfenden said she thought it would be highly unusual for someone with a significant mania or even hypomania to be in an environment like Arthur Gorrie and for nobody to notice.

68. [68]
    Dr Wolfenden told Dr McVie that she did suspect Mr Gonot had an underlying mental illness, but that he was not acutely unwell, and was not ill enough for her to recommend that he be treated, either in the custodial setting or in the hospital – that was the purpose of her assessment – tt 1-14-15. For clarity, Dr Wolfenden said that Mr Gonot was not manic when she saw him. She said that the natural history of manic illness was that it was relapsing and remitting but that it was unusual for somebody with a significant degree of mania to have their symptoms resolve except over a long timeframe or with significant treatment. In particular somebody who was under stress – charged with criminal offences and incarcerated – would be more likely to exhibit mania if they were prone to it – t 1-15.

69. [69]
    Dr Wolfenden was given some information from clinical nurse Peel about Mr Gonot having said that he took dexamphetamine tablets belonging to somebody else.  Dr Wolfenden suspected that Mr Gonot may have been using illicit substances and this may have accounted for his previous behaviour and also why that behaviour appeared to have settled now that he was in a controlled custodial environment, without access to drugs – t 1-15.  I regard that as a legitimate speculation on her part, just as Dr Grant speculated about the same thing.  There is of course no evidence about it; I cannot find that is what accounts for the factual matters in relation to this offending and subsequently.  It may be that on full factual examination after a committal, and perhaps a trial, it seems likely that drug use accounts better for these facts than any other psychiatric diagnosis.

70. [70]
    Dr Wolfenden planned to see Mr Gonot again, but he was released on bail. When she discovered this, she wrote to him saying that he ought to follow up his mental health in the community.

71. [71]
    Following Dr Wolfenden’s interview with Mr Gonot, he was seen by Nurse Peel on 24 February 2012.  She found him polite and co-operative and continuing to seem unconcerned about the charges.  He spoke to her about possibly having one tablet of dexamphetamine about the time of the offending.  Her note was that he presented as euthymic and reactive in mood, that he reported good sleep and appetite and denied any perceptual disturbances, special abilities or powers.

Assisting Psychiatrists

72. [72]
    The advice from my assisting psychiatrists was that it is likely that Mr Gonot does suffer from bipolar disorder, particularly having regard to the clearly manic behaviour in July 2012.  Dr Reddan’s advice was that, on the evidence, from the time of the alleged offending, right through to the week after Dr Wolfenden saw him, Mr Gonot did not demonstrate any evidence of severe psychiatric illness.  She thought he may have been “on the prodrome” but she thought it was not until July there were clear signs of mania – t 1-18.  She pointed out that certainly Dr Wolfenden and Nurse Peel had turned their mind to exactly the point this Court is interested in, and could not find hypomania or mania.  In her view then, notwithstanding the opinions of the reporting psychiatrists, the evidence did not support a finding that Mr Gonot was deprived of any relevant capacity at the time of the offending – t 1-18. 

73. [73]
    Dr Reddan said that mania was not a subtle illness which could be controlled or concealed during the time Mr Gonot was in prison. She accepted that persons who were psychotic and had delusions might be able to hide their delusions in such circumstances, but she did not think a major mood disorder could be hidden for that time. I raised a concern with Dr Reddan whether Dr Subramanian was correct to postulate a diagnosis other than bipolar affective disorder, and whether or not it was possible that some sort of psychosis could have been operating on 1 February 2012, but had resolved by the time Mr Gonot arrived at Arthur Gorrie.  Dr Reddan did not think that it was likely that a psychosis would spontaneously remit under the stress of being incarcerated and living in prison.

74. [74]
    Dr McVie’s advice to me was that the natural history of mania is that it would not have disappeared spontaneously without some sort of treatment. She told me that mania normally takes weeks, if not months, to resolve even with appropriate medication. Therefore she did not think that the diagnosis of mania at the time offered by the reporting psychiatrists sat with the assessments done in Arthur Gorrie. Further, she did not think that some other type of acute psychotic disorder would resolve spontaneously, particularly having regard to the fact that, from the time of arrest, Mr Gonot was under stress because of the arrest and also because he was in custody. Dr McVie said that some sort of acute psychotic disorder of short duration did not fit with Mr Gonot’s long‑term history, where he had had three episodes of treatment for a psychotic illness, each of which was quite lengthy.

75. [75]
    Dr McVie noted that Mr Gonot’s illness in July 2012 was complicated by cannabis abuse, and she also turned her mind to whether or not the offending may have been related to the use of amphetamines. She described the offending as bizarre, but also planned. She thought that it may have been motivated by some kind of persecutory ideation, which may have been precipitated by amphetamine use. Dr McVie’s advice to me was that the clinical evidence did not fit with the presence of a manic illness or even acute psychotic illness at the time of the offending.

Analysis of the Evidence

76. [76]
    I have already given my reasons for rejecting the opinions given by Dr Mann and Dr Timmins.  Dr Grant is a very experienced psychiatrist.  This Court has the greatest respect for his opinions.  It is with some diffidence therefore that I record that I am not persuaded by Dr Grant’s opinion in this case.  He, himself, found the point which troubles the assisting psychiatrists to be a difficult one – see [51]-[53] above, particularly the last passages of evidence extracted at [53].

77. [77]
    To summarise the evidence about mania, it is not a subtle illness – [39]. Basic signs of its presence are elevated mood, pressured speech and flight of ideas – [39] and [65]. Mania gets progressively worse over time if it is left untreated – [39] and [68]. Mania is more likely to be exhibited by someone who is under stress if that person is prone to manic behaviour – [67] and [68].

78. [78]
    In this case, in order to qualify for a defence of unsoundness of mind at 1 February 2012 it is necessary for me to be persuaded not only that Mr Gonot suffers from bipolar affective disorder, but that he was manic at 1 February 2012, and that mania, at that time, was so severe as to deprive him of the capacity to know he ought not do the act.  Mr Gonot was not treated until July 2012.  It therefore must be postulated that he was manic enough to be deprived of a relevant capacity on 1 February 2012, but did not show any of the basic indicia of that illness when examined by Dr Wolfenden on 17 February 2012; when examined by nurses and other mental health staff around that time, or during a two hour police interview on 2 February 2012.  Nor did he show any sign of mental illness severe enough to warrant treatment during two months’ incarceration in jail.  From 8 March 2012 to July 2012 it must be postulated that he was able to live independently in the community whilst being subject to a mania which on 1 February 2012 was so severe that it deprived him of a relevant capacity.

79. [79]
    I cannot reconcile Dr Grant’s conclusion of deprivation on 1 February 2012 with all the objective evidence as to Mr Gonot’s condition. The offending itself is odd, in the sense that there appears no motive for it. Of course it may simply be that Mr Gonot has not revealed his motive. Nonetheless, the offending was planned, and organised. Mr Gonot was able to access the house concerned very quietly and purposefully turn on the gas in the kitchen and seal that room by closing the windows. He then placed fuel directly underneath the kitchen floor and lit it. This was quiet, covert and logical behaviour.

80. [80]
    In a two hour police interview the next day there were no signs of mania. Mr Gonot was in a stressful prison environment for two months from the time he was arrested until the time he was granted bail. This did not provoke his mania to appear. As well as being a stressful environment, prison was an environment where Mr Gonot was closely observed. There were no observations that provoked a referral to Prison Mental Health. Nurse Peel and Dr Wolfenden, who were particularly looking for mania given the collateral history they had, could not see any signs of mania when they were looking to see if Mr Gonot needed treatment. Dr Grant said that he was aware of someone hiding severe mental illness through an interview, and even on an overnight admission.  I do not think the current situation compares to that: it was very stressful; provided opportunity for close observation and lasted two months.  Not only was Mr Gonot not displaying symptoms of mania in prison, once he was released on bail he apparently spent four months living independently in the community in circumstances where he reported to Dr Timmins he felt listless, and to Dr Timmins and Dr Subramanian that he resumed his studies, before becoming manic in July 2012.

81. [81]
    My view on the evidence before me is that Mr Gonot was of sound mind at the time of the alleged offending. I allow for the possibility that he was suffering some abnormality of mind related to bi-polar affective disorder, but I cannot conclude on all the evidence that he was deprived of any relevant capacity. The charges against him ought to proceed according to law. The only evidence before me was that he is fit for trial.

82. [82]
    While I am content to leave my findings in this matter on the above basis – which was the only one argued by the parties, it does occur to me that the matter could have been dealt with pursuant to s 269(1) of the Act. Mr Gonot has acknowledged that he was dishonest with Drs Mann and Timmins. He was obviously also dishonest with Dr Wolfenden. I would not assume that Mr Gonot was honest with Dr Grant.  Nor would I necessarily assume that the collateral information which was provided to all the psychiatrists from Mr Gonot’s family was reliable or honest.  It may prove to be, but I am sceptical of some of it and none of it has been tested.

Role of assisting psychiatrists

83. [83]
    I will record, because it was challenged by Mr Briggs who appeared for Mr Gonot, that I thought the conduct of the assisting psychiatrists throughout this case was helpful, proper and impartial. I will add some comments as to that, effectively as a coda to these reasons.

84. [84]
    In DAR v DPP (Qld) & Anor^[9] Holmes JA, as she then was, said this as to the role of the assisting psychiatrist:

“In the appellant’s submissions that the Mental Health Court disregarded the preponderance of the psychiatric evidence, there was, I think, something of a tendency to discuss the advice of the assisting psychiatrists as if it were part of the evidence in the case.  That, of course, is not so; the advice given serves a limited and specified function, and those giving it are in no respect treated as witnesses: they are not sworn or subject to the challenges of cross-examination.  I have some concern that aspects of the advice of both assisting psychiatrists in this case more closely resembled clinical evidence than advice on the meaning and significance of the clinical evidence given.  But the boundary is not an easy one to draw; and the complaint of the appellant was not that the advice offered by Dr Varghese and Dr McVie trespassed beyond the limits of their function, but, in effect, that the advice of Dr Varghese was not preferred.”

85. [85]
    Under the Act the role of the assisting psychiatrists relevant here is to assist me on the meaning and significance of clinical evidence – s 389 of the Act. The role of the assisting psychiatrists was discussed in Reid v DPP (Qld) and Anor.^[10]  Particularly at [47] Keane JA, as he then was, held that advice from assisting psychiatrists:

“… goes beyond a mere reiteration or explanation of ‘clinical evidence’ by each assisting psychiatrist: it encompasses a critique of the ‘clinical evidence’ given by others, and an evaluation of the extent to which that evidence tends to support one or other of the conclusions which the parties seek from the Court.”

86. [86]
    The Mental Health Court has always allowed assisting psychiatrists to ask questions of witnesses who come before it in order to elucidate matters of clinical evidence which they give. It could not sensibly be suggested that, in the course of doing that, assisting psychiatrists could not ask questions which had as their purpose revealing weaknesses in the evidence of reporting psychiatrists. Nor could it be sensibly suggested that assisting psychiatrists could question how the clinical views reached by reporting psychiatrists could be consistent with the facts upon which the reporting psychiatrists’ reports were based, or other facts before the Court. It could not be the case that assisting psychiatrists should sit quietly when reporting psychiatrists give evidence which is not soundly based clinically, or not soundly based on the facts of the matter as known to the Court.

87. [87]
    In my view, the advice of the assisting psychiatrists was very valuable on 29 September 2014 when the Court received two reports which both came to the same conclusion as to unsoundness, and were not challenged by any party. Had the assisting psychiatrists not raised their concerns I would not have been aware of the main issue in the case. Looking at the matter with hindsight, having received a third report from Dr Grant and heard Dr Wolfenden, the two reports which the Court had initially were quite inadequate. The uncomfortable situation has now been reached where the third report does not persuade me that, on all the facts here, Mr Gonot was suffering from mania so intense that he was deprived of a relevant capacity as at 1 February 2012. I examined the law as to the role of expert evidence in this Court in the matter of Kalksma (above), in particular matters relevant to this Court rejecting the opinion of a reporting psychiatrist.  In Kalksma I criticised the reporting psychiatrist’s report and evidence.  I do not criticise Dr Grant’s report or evidence in this case.  Nonetheless, having regard to his opinion along with all the other evidence in the case, I cannot simply abdicate my own decision-making responsibility – see the authorities set out at [46]ff of Kalksma.

88. [88]
    My finding on all the evidence is that Mr Gonot was, probably, of sound mind on 1 February 2012. I am not acting on the advice of the assisting psychiatrists as if it were evidence. I am not acting without evidence. I am acting having regard to all the factual matters which are before the Court and the expert opinion before the Court as to the matters which I summarise at paragraph [77] above. When those matters are considered, my view is that Mr Gonot was not of unsound mind at the relevant time.